Richards v Grant - [2006] VSC 387

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

No. 8287 of 2006

BARRY RICHARDS	Plaintiff
v
JOHN MACKINNON GRANT & ALLENDALE PRIVATE HOSPITAL PTY LTD (IN LIQ)	Defendants

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	20, 29 September 2006
DATE OF JUDGMENT:	26 October 2006
MEDIUM NEUTRAL CITATION:	[2006] VSC 387

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
For the First Defendant	Mr F Saccardo S.C.	John W Ball & Sons
For the Second Defendant	Mr D Grant	Logie-Smith Lanyon

HER HONOUR:

Barry Richards injured his right knee more than 40 years ago. Some 12 years later, the first defendant, Mr John Grant, operated on that knee at the Allendale Private Hospital, which was at that time owned and operated by the second defendant. This is the latest in a series of proceedings brought by Mr Richards, all of which have their origins in the operation and hospital stay of July 1975.

The doctor and the hospital deny that Mr Richards is entitled to bring this proceeding and say that it should be dismissed.

In order to better understand this proceeding and the parties’ arguments, it is desirable to consider in more detail the relevant events of the last 31 years.

Previous proceedings relating to the events of 1975

In May 1978, Mr Richards’ then solicitors, Ellison Hewison & Whitehead, issued a writ in this court in proceeding 2793 of 1978 (“the original proceeding”). In the original proceeding, Mr Richards claimed that he had suffered numerous injuries as a result of the actions of the doctor and the hospital, including (but certainly not limited to) venous thrombosis in the right leg, pulmonary embolism, pain and suffering. Mr Richards’ case was framed in negligence or breach of contract.

The original proceeding did not come on for trial until February 1988, almost 10 years after it had been issued. It seems that at least part of that delay was due to a serious car accident in which Mr Richards was involved in late 1982 and his involvement in subsequent litigation. The car accident not only caused Mr Richards physical and mental injuries, but also resulted in Mr Richards bringing a personal injury claim in the County Court, which ultimately went on appeal to the Full Court of this court and then to the High Court[1].
[1] Some years later, Mr Richards commenced proceeding 5216 of 1996 in this court against his lawyers, Mr C Francis QC and Mr A McMonnies, for professional negligence in their handling of his car accident claim; he also took that professional negligence case on appeal to the Court of Appeal.

Another reason for the 10 year delay in the original proceeding seems to be that Mr Richards’ solicitors were finding it very difficult to find medical support for his case. That is to say, the doctors engaged by Mr Richards’ own solicitors did not believe that the injuries were as serious as Mr Richards believed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Richards v Grant

Details

AGLC: Richards v Grant [2006] VSC 387
Case: [2006] VSC 387
Decision Date: 26 October 2006

CaseChat Overview and Summary

Barry Richards brought proceedings against John MacKinnon Grant and Allendale Private Hospital, claiming that he wished to set aside a settlement reached with the defendants in 1988 and re-litigate his claim for damages. The defendants denied that Richards was entitled to bring the proceedings and sought to have them dismissed. The court had to decide whether Richards had a valid claim against the defendants and whether the proceedings should be dismissed as an abuse of process. The court found that there was no evidence to support Richards' claims and that his belief that he had been wronged was not supported by any facts. The court also found that Richards' claim was barred by the principle of issue estoppel, as he had previously settled his claim against the defendants. The court dismissed the proceedings as an abuse of process and refused Richards leave to commence a proceeding against the hospital. The court declined to make an order declaring Richards a vexatious litigant, but noted that the Attorney-General may consider making such an application.

The orders of the court were that the originating motion and summons be dismissed and that Richards' application for leave to commence a proceeding against the hospital be refused. The parties were to be heard in relation to the precise form of orders and as to costs.

Orders