Quinlivan v Konowalous & Ors

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SUPREME COURT OF QUEENSLAND

CITATION:

Quinlivan v Konowalous & Ors [2019] QSC 285
PARTIES:

MICHAEL WILLIAM QUINLIVAN

(plaintiff)

v
ANDREW KONOWALOUS

(first defendant)

SPECTRUM IMAGING PTY LTD
ACN 143 919 395
(second defendant)

NICHOLAS MACZYSZYN
(third defendant)

ANTHONY GOLLE
(fourth defendant)

MARK ILLGUTH
(fifth defendant)

FILE NO/S:

2726 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2019

JUDGE:

Davis J

ORDERS:

1.   The order of the Registrar extending the period for service of the Claim for 12 months from 17 March 2018 is set aside;

2.   The Claim is dismissed;

3.   The parties may file and serve written submissions on costs by 4.00 pm on 29 November 2019;

4.   The question of costs will be determined on any written submissions received and without oral hearing.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – TIME FOR SERVICE OF ORIGINATING PROCESS AND RENEWAL – where the plaintiff commenced proceedings against the defendants for defamation, injurious falsehood and tortious conspiracy – where the Claim and Statement of Claim were not served, and after 12 months the Registrar renewed the claim for a further 12 months – where the Claim and Statement of Claim were ultimately served some 10 months subsequent to the granting of the extension – where the second defendant made application to have the order of the Registrar extending the period for service of the claim for 12 months set aside – whether there was a good reason to renew the claim

Defamation Act 2005 (Qld), s 14, s 30
Health Practitioner Regulation National Law (Queensland), s 140, s 142, s 190A, s 237
Limitation of Actions Act 1974 (Qld), s 10AA, s 32A

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 16, r 22, r 24, r 150, r 667

Aon Risk Services Australia Limited  v Australia National University (2009) 239 CLR 175, cited
Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104, cited
Babcock & Brown Pty Ltd v Arthur Andersen [2010] QSC 287, followed
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256, cited
Battersby v Anglo-American Oil Co Ltd [1945] 1 KB 23, cited
EDIS Service Logistics Pty Ltd v PKF East Coast Practice and Ors [2018] QSC 262, cited
Expense Reduction Analysis Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 253 CLR 303, cited
Hightop Pty Ltd & Anor v Kay Sheila Lawrence trading as Kay Lawrence Accountancy & Ors [2010] QCA 270, followed
IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148, followed
Jones v Jebras and Hill [1968] Qd R 13, cited
King v Gunthorpe & Ors [2018] QSC 1, followed
McIntosh & Anor v Maitland & Ors [2016] QSC 203, followed
Muirhead v Uniting Church in Australia…

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Details
Case
[2019] QSC 285
Decision Date

CaseChat Overview and Summary

In the case of Quinlivan v Konowalous & Ors, the plaintiff, a radiographer, commenced proceedings against multiple defendants for defamation, injurious falsehood, and tortious conspiracy. The defendants, including a director of a company providing radiological services to chiropractors and several chiropractors, opposed the proceedings. The dispute centred around allegations of sexual misconduct by the plaintiff and subsequent termination of his employment, which the plaintiff claimed was defamatory and harmful to his professional reputation.

The primary legal issue before the court was whether there was a sufficient basis for the Registrar to extend the period for the service of the claim under Rule 22 of the Uniform Civil Procedure Rules 1999 (UCPR). The court had to determine if the Registrar's decision to renew the claim for an additional 12 months was justified, considering that the claim and statement of claim were ultimately served 10 months after the extension was granted. The defendants argued that the renewal was not supported by a good reason, and therefore, the court should set aside the Registrar's order.

The court reviewed the circumstances surrounding the renewal and considered the factors outlined in the UCPR. It examined whether reasonable efforts were made to serve the claim or if there was another good reason to extend the period. The court concluded that the renewal was not justified as the plaintiff had not shown a compelling reason for the delay in serving the claim. Consequently, the court set aside the Registrar's order extending the service period and dismissed the claim. The court also directed the parties to submit written submissions on costs by a specified date, with the final decision on costs to be made based on the written submissions without the need for an oral hearing.

Orders

Orders of the court

1. The order of the Registrar extending the period for service of the Claim for 12 months from 17 March 2018 is set aside;

2. The Claim is dismissed;

3. The parties may file and serve written submissions on costs by 4.00 pm on 29 November 2019;

4. The question of costs will be determined on any written submissions received and without oral hearing.

Background

Background to the litigation

Each of the first, third, fourth and fifth defendants supported the application of the second defendant.Background The plaintiff is a radiographer. The first defendant is a director of the second defendant whose business was to provide radiological services to the patients of chiropractors. This was achieved by the second defendant employing radiographers to work in rooms operated by the second defendant within the chiropractic practices serviced by the second defendant. Each of the third, fourth and fifth defendants are chiropractors to whom the second defendant supplied radiology services. The plaintiff alleges that in September 2014, he drew to the attention of the various defendants’ practices that they were undertaking which were either wasteful or not in the interest of the patients. On about 7 October 2014, the first defendant received an email from the fourth defendant. That email forwarded on an email that had been received by the fourth defendant from the mother of children who were the fourth defendant’s patients who had been x-rayed by the plaintiff. In the email, the patients’ mother alleged that the plaintiff had acted sexually and inappropriately towards her in the course of x-raying her children. Although the plaintiff’s inappropriate conduct occurred while he was x-raying the complainant’s children, the complainant herself was also a patient having previously been x-rayed by the plaintiff. The first defendant swore in his affidavit that there had been previous allegations of alleged sexual misconduct of the plaintiff. He said those allegations were not investigated because they lacked detail. The first defendant then directed one of the second defendant’s employees, Donna Hobbs, to conduct an investigation. After that investigation, the plaintiff’s employment with the second defendant was terminated. That occurred on 8 October 2014. The letter of termination was, relevantly, in these terms:“Further to various discussions today between you and Donna Hobbs I am writing to you to advise that your employment with Spectrum Imaging is terminated forthwith.Your employment has been terminated because management has determined that you engaged in serious misconduct and behaviour likely to cause damage to the company’s reputation and profitability.You were suspended from all duties yesterday pending an investigation into allegations made by a patient about inappropriate behaviour towards her in front of her children at the company’s Carrara site.Spectrum regards this behaviour as being contrary to professional codes of conduct and management cannot trust a radiographer who engages in such behaviour.”[1][1] Affidavit of Robyn Margaret Bourne CFI 8 exhibits page 75. On about 15 October 2014, the second defendant notified the Office of the Health Ombudsman (OHO) of the complaint that had been made by the fourth defendant’s patient. The notification included:“On 8/10/2014, the day after Spectrum became aware of a serious incident involving one of our radiographers Michael Quinlivan we terminated his employment for serious misconduct. The notes below detail the incident and provide the basis for Spectrum’s belief that he engaged in Notifiable Conduct.In summary, the incident involved the radiographer Michael Quinlivan:1. Making sexual comments and advances in a patient/carer environment2. Asking the patient for a date (done in front of her kids)3. Having a history of unverified similar behaviour4. Breaching AHPRA[2] and AIR[3] codes of conduct5. Damaging Spectrum’s reputation, business and profitability6. Asking for the patient’s contact details as he wants to initiate legal action against herOn 17/9/2014 patient [redacted] of [redacted] (tel [redacted]) presented at Spectrum Imaging’s Carrara clinic for an x-ray. The procedure was conducted without incident.On 25/9/2014 the same patient [redacted] presented at the same clinic with her children, [redacted] and [redacted] who both needed x-ray procedures.During the second visit the patient claims the radiographer Michael Quinlivan made inappropriate sexual advances, brushed against her chest and suggested they go on a date in front of her children.An email from the patient was relayed to Spectrum’s management via the patient’s referrer [redacted]. It is reproduced below:”[2] Australian Health Practitioner Regulation Agency.[3] Australian Institute of Radiography.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Rule 22 of the Uniform Civil Procedure Rules 1999 (UCPR) provides for the issue of a claim. Rule 24 provides that the claim remains in force for one year. That rule is in these terms:“24 Duration and renewal of claim(1) A claim remains in force for 1 year starting on the day it is filed.(2) If the claim has not been served on a defendant and the registrar is satisfied that reasonable efforts have been made to serve the defendant or that there is another good reason to renew the claim, the registrar may renew the claim for further periods, of not more than 1 year at a time, starting on the day after the claim would otherwise end.(3) The claim may be renewed whether or not it is in force.(4) However, the court’s leave must be obtained before a claim may be renewed for a period any part of which falls on or after the fifth anniversary of the day on which the claim was originally filed.(5) Before a claim renewed under this rule is served, it must be stamped with the court’s seal by the appropriate officer of the court and show the period for which the claim is renewed.(6) Despite subrule (1), for any time limit (including a limitation period), a claim that is renewed is taken to have started on the day the claim was originally filed.” The present application seeks to overturn the decision of the Registrar who renewed the claim. There are three sources of power to review the decision; r 16(d), r 667(2)(a) and the inherent jurisdiction of the court.[19] Rules 16 and 667 are in these terms:[19] Babcock & Brown Pty Ltd v Arthur Andersen [2010] QSC 287.“16 Setting aside originating processThe court may—(a) declare that a proceeding for which an originating process has been issued has not, for want of jurisdiction, been properly started; or(b) declare that an originating process has not been properly served; or(c) set aside an order for service of an originating process; or(d) set aside an order extending the period for service of an originating process; or (e) set aside an originating process; or(f) set aside service of an originating process; or(g) stay a proceeding; or(h) set aside or amend an order made under rule 126(1) or 129G(1); or(i) make another order the court considers appropriate.[20]”(emphasis added)[20] The note is omitted. “667 Setting aside(1) The court may vary or set aside an order before the earlier of the following—(a) the filing of the order;(b) the end of 7 days after the making of the order.(2) The court may set aside an order at any time if—(a) the order was made in the absence of a party; or(b) the order was obtained by fraud; or(c) the order is for an injunction or the appointment of a receiver; or(d) the order does not reflect the court’s intention at the time the order was made; or(e) the party who has the benefit of the order consents; or(f) for a judgment for specific performance, the court considers it appropriate for reasons that have arisen since the order was made.(3) This rule does not apply to a default judgment.”[21] [21] The note is omitted.