Neutze v Clarke

[2022] QSC 155

SUPREME COURT OF QUEENSLAND

CITATION: 

Neutze v Clarke & Anor [2022] QSC 155

PARTIES: 

CATHERINE NEUTZE

(applicant)

v
BARTON CLARKE

(first respondent)

STATE OF QUEENSLAND

(second respondent)

FILE NO/S: 

7382 of 2019

DIVISION: 

Trial Division

PROCEEDING: 

Application

ORIGINATING 

Supreme Court at Brisbane

COURT: 

DELIVERED ON: 

25 July 2022

DELIVERED AT: 

Brisbane

HEARING DATE: 

15 June 2022

JUDGE: 

Hindman J

ORDER: 

1.	Application dismissed.
2.	The applicant pay the respondents’ costs of the

application.

3.          Grant leave under rule 376(3) of the Uniform Civil

Procedure Rules 1999 for the plaintiff to amend the

claim and statement of claim to remove the pleaded

negligence action.

CATCHWORDS: LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – WHAT ARE MATERIAL FACTS – where the applicant filed a proceeding including a negligence claim in the nature of a failure to warn case – where the proceeding is statute barred by section 11(1) of the

Limitation of Actions Act 1974 (Qld) – where the alleged

material fact of a decisive character was medical reports along with solicitor’s advice of a viable claim – where the applicant consulted with three sets of solicitors regarding her claim – where the first defendant had become cognitively impaired since the claim had been filed - whether medical reports along with legal advice was a material fact of a decisive character – whether all reasonable steps taken to find out the relevant material facts of a decisive character – whether there was prejudice to the respondents from the first defendant’s declining cognitive status rising to the level that would make a trial inherently unfair.

Limitation of Actions Act 1974 (Qld), ss 30, 31

Berg v Kruger Enterprises Ltd [1990] 2 Qd R 301

Brisbane South Regional Health Authority (1996) 186 CLR

541

Campbell v United Pacific Transport Pty Ltd [1966] Qd R

465

Castlemaine Perkins Ltd v McPhee [1979] Qd R 469
Cowie v State Electricity Commission (Vict) [1964] VR 788
Do Carmo v Ford Excavations Pty Ltd [1984] 154 CLR 234
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325
NF v State of Queensland [2005] QCA 110

Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA

112

Sugden v Crawford (16 October 1987, unreported)
State of Queensland v Stephenson [2006] 226 CLR 197

Taggart v Workers’ Compensation Board of Queensland

[1983] 2 Qd R 19

Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431

COUNSEL:	C Wilson for the applicant D Schneidewin and R Nattrass for the respondents
SOLICITORS:	AJB Stevens Lawyers for the applicant Minter Ellison for the respondents

Application pursuant to s. 31 LAA

[1] The applicant applies for an extension of time pursuant to section 31 of the Limitation

of Actions Act 1974 (Qld) (LAA).

[2]        The applicant filed a proceeding in the Supreme Court of New South Wales on 4

October 2018, which proceeding includes a negligence claim in the nature of a…