Nyks v Tolhurst

[1999] QCA 30

COURT OF APPEAL	[1999] QCA 030
DAVIES JA McPHERSON JA WILSON J
Appeal No 11298 of 1998
ALICJA NYKS	Applicant/Plaintiff
and
DAVID TOLHURST	Respondent/Defendant
BRISBANE
..DATE 22/02/99 220299 D.1 T8/JAP/22 M/T COA25/99

WILSON J: The applicant/plaintiff seeks leave to appeal against a decision of a District Court Judge in Chambers given on 9 November 1998 dismissing an application for leave to proceed pursuant to Rule 377 of the District Court rules.

The applicant's claim is against her former doctor for damages for professional negligence arising out of surgery in July 1986. The action was commenced by writ issued on 23 June 1989. It was remitted to the District Court on 27 March 1994. The last step in the action was the filing of the defendant's affidavit of documents in April 1994, that is, four and a half years before the application for leave to proceed.

The Chamber Judge who heard the application was called upon to make a discretionary judgment whether there was good reason for accepting the action from the general prohibition which the rule imposes. At page 7 of his judgment he stated correctly the proper approach to such an application.

To succeed on such an appeal the applicant would have to persuade this Court that the Chamber
Judge made some error in the exercise of the discretion within the terms discussed in House v. King.
So long as there was no error of that type, it would not be enough that a differently constituted
Court might have accorded different weight to factors properly taken into account.

I am not persuaded that there is doubt whether the discretion was properly exercised sufficient to warrant reconsideration by this Court or that substantial injustice would result if leave were refused. Accordingly, I would dismiss the application for leave to appeal, and I would order the applicant to pay the respondent's costs of and incidental to the application to be taxed.

DAVIES JA: I agree.

McPHERSON JA: I agree.

DAVIES JA: The orders are as Justice Wilson indicated.

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