Sami v Mgweso - [2008] QDC 200

DISTRICT COURT OF QUEENSLAND

CITATION:

Sami v Mgweso [2008] QDC 200

PARTIES:

ROBERT SAMI
(Plaintiff)
v
DR. ABIGAIL MGWESO
(Defendant)

FILE NO/S:

4561/03

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

25 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2008

JUDGE:

Forde DCJ

ORDER:

1. The ex parte orders of her Honour Judge O’Sullivan made on 16 May 2008 are set aside.

2. The proceedings are dismissed for want of prosecution.
3. Liberty to apply on costs.

CATCHWORDS:

Renewal of Claim – ex parte application – grounds to set aside – leave to proceed – dismissal of action for want of prosecution.

Personal Injuries Proceedings Act 2002, ss 4, 39, 42, 43
Supreme Court of Queensland Act 1991, s 85
Uniform Civil Procedure Rules 1999, rr 5, 24, 27, 389, 455, 667

Allen v Sir Alfred McAlpine & Sons Limited [1968] 2 QB 229, Berowra Holdings Pty Limited v Gordon (2006) 225 CLR 364, referred to
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied
Cooper v Hopgood & Ganim [1999] 2 Qd R 115, referred to
IMB Group Pty Ltd v Australian Competition and Consumer Commission [2006] QCA 407, referred to
Muirhead v Uniting Church in Australian Property Trust [1999] QCA 523, distinguished
Page v The Central Queensland University [2006] QCA 478, applied
Quinlan v Rothwell [2002] 1 Qd R 647, referred to
Tricon Industries Pty Ltd v Abel Lemon & Co Pty Ltd [1998] 2 Qd R 551, referred to
Tyler v Custom Credit Corp Limited [2000] QCA 178, applied

COUNSEL:

G.W. Diehm for applicant/defendant

C. Johnstone for respondent/plaintiff

SOLICITORS:

Harry McCay for applicant/defendant

Stephens & Tozer for respondent/plaintiff

Introduction

The defendant was a medical practitioner at the Morayfield Medical Clinic on 3 December 2000. That morning, the plaintiff had suffered symptoms of a heart attack and attended at the Clinic. The defendant was busy and suggested that the plaintiff go elsewhere. The timing of the visit and the conversations which occurred at the Clinic are somewhat controversial. Later that morning, the plaintiff attended at the Narangba Clinic and was subsequently taken by ambulance to the Caboolture Hospital. As a result of what was diagnosed as a heart attack, the plaintiff alleges that he suffered severe injuries and damage to his heart and that those injuries were exacerbated by the delay in getting treatment by the defendant in a timely way.

Proceedings were commenced on 23 December 2003. An order was made by his Honour Judge McGill on 18 December 2003 pursuant to s 43 of Personal Injuries Proceedings Act 2002 (PIPA) but not served in accordance with the rules. On 16 May 2008, an order was made to renew the claim for service in accordance with rule 24(2) of the Uniform Civil Procedure Rules 1999 (UCPR). Also, the plaintiff was given leave to proceed in accordance with rule 389(2) and s 42(b)(ii) of PIPA. Pursuant to the same order the plaintiff was…

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 Sami v Mgweso

Details

AGLC: Sami v Mgweso [2008] QDC 200
Case: [2008] QDC 200
Decision Date: 25 July 2008

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Sami versus Mgweso involved a dispute concerning the renewal of a claim. The matter was initially brought before the court on an ex parte basis, with an application made by the plaintiff, Sami, for an extension of time to file a renewed statement of claim. This application was heard and granted by Judge O'Sullivan, who made orders on 16 May 2008. Mgweso, the defendant, subsequently applied to set aside these orders, arguing that the plaintiff had failed to meet certain conditions precedent for the renewal of the claim. The court was required to determine whether the grounds for setting aside the ex parte orders were sufficient, and if the proceedings should be dismissed for want of prosecution.

The central legal issues before the court were whether the ex parte orders made by Judge O'Sullivan could be set aside and whether the plaintiff had complied with the conditions precedent for renewing the claim. The court examined the grounds for setting aside the ex parte orders, which included allegations of non-compliance with the conditions precedent. The court also considered whether the plaintiff's failure to comply with these conditions warranted a dismissal of the proceedings for want of prosecution. The court's analysis involved a careful examination of the terms of the ex parte orders, the conditions precedent, and the plaintiff's actions in response to these conditions.

The court found that the grounds for setting aside the ex parte orders were valid, as the plaintiff had not complied with the conditions precedent as required. The court determined that the plaintiff's failure to meet these conditions was a significant factor in the dismissal of the proceedings. The court held that the proceedings were properly dismissed for want of prosecution, given the plaintiff's non-compliance with the conditions precedent and the resulting prejudice to the defendant. The court set aside the ex parte orders made on 16 May 2008 and dismissed the proceedings. The court also granted liberty to apply on costs.

The final orders of the court were that the ex parte orders made by Judge O'Sullivan on 16 May 2008 were set aside, and the proceedings were dismissed for want of prosecution. The court granted liberty to apply on costs, allowing the defendant to seek reimbursement of legal expenses incurred in the matter. This decision highlighted the importance of compliance with conditions precedent in legal proceedings and the potential consequences of failing to meet these requirements.

Orders

Orders of the court

1. The ex parte orders of her Honour Judge O’Sullivan made on 16 May 2008 are set aside.

2. The proceedings are dismissed for want of prosecution.

3. Liberty to apply on costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Sami v Mgweso [2008] QDC 200
PARTIES:	ROBERT SAMI (Plaintiff) v DR. ABIGAIL MGWESO (Defendant)
FILE NO/S:	4561/03
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	25 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	14 July 2008
JUDGE:	Forde DCJ
ORDER:	1. The ex parte orders of her Honour Judge O’Sullivan made on 16 May 2008 are set aside. 2. The proceedings are dismissed for want of prosecution. 3. Liberty to apply on costs.
CATCHWORDS:	Renewal of Claim – ex parte application – grounds to set aside – leave to proceed – dismissal of action for want of prosecution. Personal Injuries Proceedings Act 2002, ss 4, 39, 42, 43 Supreme Court of Queensland Act 1991, s 85 Uniform Civil Procedure Rules 1999, rr 5, 24, 27, 389, 455, 667 Allen v Sir Alfred McAlpine & Sons Limited [1968] 2 QB 229, Berowra Holdings Pty Limited v Gordon (2006) 225 CLR 364, referred to Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied Cooper v Hopgood & Ganim [1999] 2 Qd R 115, referred to IMB Group Pty Ltd v Australian Competition and Consumer Commission [2006] QCA 407, referred to Muirhead v Uniting Church in Australian Property Trust [1999] QCA 523, distinguished Page v The Central Queensland University [2006] QCA 478, applied Quinlan v Rothwell [2002] 1 Qd R 647, referred to Tricon Industries Pty Ltd v Abel Lemon & Co Pty Ltd [1998] 2 Qd R 551, referred to Tyler v Custom Credit Corp Limited [2000] QCA 178, applied
COUNSEL:	G.W. Diehm for applicant/defendant C. Johnstone for respondent/plaintiff
SOLICITORS:	Harry McCay for applicant/defendant Stephens & Tozer for respondent/plaintiff