Shields v Nyunt

[2006] QDC 4

DISTRICT COURT OF QUEENSLAND

CITATION:

Shields v Nyunt & Ors [2006] QDC 004

PARTIES:

Denise Shields (by her litigation guardian George Francis Johnson)

(plaintiff/applicant)

v

Ba Nyunt

(First defendant/respondent)

&

Sean Andrew Mullen

(Second defendant/respondent)

&

Aulent

(Third defendant/respondent)

&

State of Queensland

(Fourth defendant/respondent)

FILE NO/S:

72/06

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

27 January 2006

DELIVERED AT:

Brisbane

HEARING DATE:

27 January 2006

JUDGE:

FORDE DCJ

ORDER:

1.     The applicant /plaintiff have leave to proceed with her claim, not withstanding that no action has been taken in the proceeding for two (2) years.

2.      The applicant/plaintiff re-list the application filed 17 September 2001 for hearing within fourteen (14) days of the receipt of the report of a psychiatrist obtained by the respondents from a panel of three (3) psychiatrists provided by the respondents/defendants to the applicant/plaintiff.

3.     The parties agree that the said application is not required, then:

a) the respondent/defendants file and serve their respective defences within 28 days of the date of any order in respect of the said application or agreement referred to above;
b) the respondent/defendants deliver, within 28 days of the date of any order in respect of the said application or agreement referred to above, a panel of orthopaedic specialists to the applicant/plaintiff for independent medical review;
c) the applicant deliver her statement of loss and damage, list of documents and any further expert medical reports within a further 28 days thereof;
d) the respondents deliver their statements of expert and economic evidence and list of documents within a further 28 days thereof.

4.    The respondent/defendant’s cross application be dismissed.

5.    The parties have liberty to apply on four business day’s notice to the other       party.

6.    The applicant/plaintiff pay the respondent/defendants’ costs of and incidental to the applicant/plaintiff’s application and the respondent/defendants’ application (including the costs occasioned by the by the adjournment on 24 January 2006) in any event. 

CATCHWORDS:

CLAIM FOR DAMAGES – PERSONAL INJURY – delay for more than two years–good cause of action – leave to proceed – application to dismiss for want of prosecution

Guardianship and Administration Act 2000 s 12; Schedule 2

Supreme Court Act 1991 s85

UCPR rr 5, 280, 389(2).

Bendeich v Clout [2003] QDC 305.

Bevan v Southport Regional Health Authority & Ors. [2005] QSC 018. 

Brisbane South Regional Hospital Board v Taylor [1996 1997] 186 CLR 541.

Cummings v Davis [2001] QCA 293.

Quinlan v Rothwell [2002] 1 QD R 647

Smith v Harvey-Sutton CA No.6168 of 1997, 21 August 1998.

Tyler v Custom Credit Corporation Ltd & Ors [2000]QCA 178.

Vlies v The Commonwealth of Australia [2004] QSC 404.

COUNSEL:

Dr CJ Cross for the applicant

Mr David Schneidewin for the respondent

SOLICITORS:

Watling Roche Lawyers for the applicant

Minter Ellison Lawyers for the respondent

Introduction

1. In early October 1993, the applicant/plaintiff, Denise Shields, was hospitalised at the Rockhampton Hospital which was administered by the fourth defendant, State of Queensland.  Doctors Ba…