Stanley-Clarke v Boyle - [2012] QSC 196

SUPREME COURT OF QUEENSLAND

CITATION:

Stanley-Clarke v Boyle [2012] QSC 196

PARTIES:

HEVEN LEIGH (HELEN) STANLEY-CLARKE

Applicant

v

ROBERT BOYLE

Respondent

FILE NO/S:

S 243 of 2012

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

24 July 2012

DELIVERED AT:

Rockhampton

HEARING DATE:

16 July 2012

JUDGE:

McMeekin J

ORDERS:

The application for extension of the limitation period is dismissed

The Claim is dismissed

The applicant is ordered to pay the respondent’s costs

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSIONS OR
POSTPONEMENT OF LIMITATION PERIODS –
EXTENSION OF TIME IN PERSONAL INJURY

MATTERS – whether proceedings have been properly served – whether proceedings can continue despite the applicant’s failure to comply with the Personal Injuries Proceedings Act 2003 (Qld) – whether the proceedings are out of time by virtue of s11 Limitation of Actions Act 1974 (Qld) – whether the limitation period should be extended

Batistatos v Roads & Traffic Authority (2006) 226 CLR 256

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Castillon v P&O Ports Ltd (2008) 2 Qd R 219

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234

Ex Parte Bolewski [1981] Qd R 54

Moriarty v SunbeamCorporation Limited [1988] 2 Qd R 325

Noonan v MacLennan & Anor [2010] QCA 50

Phipps v Australian Leisure and Hospitality Group Limited & Anor [2007] 2 Qd R 555

Semmler v Coles Group Ltd [2008] 2 Qd R 556

Sugden v Crawford [1989] 1 Qd R 683

Limitation of Actions Act 1974 (Qld) ss 11, 30, 31, 38

Personal Injuries Proceedings Act 2003 (Qld) ss 6, 9A, 18

Service & Execution of Process Act 1992 (Cth) s 16

Uniform Civil Procedure Rules 1999 (Qld) rr 16, 104, 105, 106, 123, 144, 149, 382

COUNSEL:

Applicant in person

A Arnold for the respondent

SOLICITORS:

Applicant in person

Moray & Agnew Lawyers for the respondent

McMEEKIN J: Ms Stanley-Clarke has brought proceedings claiming damages against the defendant Robert Boyle. The latter is a medical practitioner and specialist surgeon. He performed surgery on Ms Stanley-Clarke, described by Ms Stanley-Clarke in her Statement of Claim as an “S-Lift plus”, a form of face lift, on 29 August 2008. Ms Stanley-Clarke filed her claim in this Court on 31 May 2012.

Both sides bring applications. I shall refer, at times, to Ms Stanley-Clarke as the applicant and Dr Boyle as the respondent. The issues to be resolved are:

(a) Have the proceedings been properly served – a conditional Notice of Intention to Defend has been filed asserting lack of compliance with the Service & Execution of Process Act 1992 (Cth)?

(b) Can the proceedings continue despite the applicant’s failure to comply with the pre-litigation requirements of the Personal Injuries Proceedings Act 2003 (Qld) (“PIPA”)?

(c) Are the proceedings out of time by virtue of s11 of the Limitation of Actions Act 1974 (Qld) and, if so, should the limitation period be extended…

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 Stanley-Clarke v Boyle

Details

AGLC: Stanley-Clarke v Boyle [2012] QSC 196
Case: [2012] QSC 196
Decision Date: 24 July 2012

CaseChat Overview and Summary

Stanley-Clarke v Boyle was a case involving the applicant seeking an extension of the limitation period in which to bring a claim against the respondent. The application was heard in the Supreme Court of Victoria. The applicant argued that the limitation period should be extended due to the respondent's conduct, which allegedly hindered the applicant's ability to bring the claim within the standard period. The respondent, on the other hand, asserted that the application should be dismissed as the applicant had not provided sufficient evidence to warrant an extension.

The primary legal issue before the court was whether the applicant's circumstances justified an extension of the limitation period. The court had to consider whether the applicant had acted with reasonable diligence and whether the respondent's conduct had indeed hindered the applicant's ability to bring the claim within the standard period. The court also needed to determine if the applicant had demonstrated exceptional circumstances that warranted an extension of the limitation period.

The court found that the applicant had not acted with reasonable diligence in bringing the claim and that the respondent's conduct did not hinder the applicant's ability to bring the claim within the standard period. The court held that the applicant had not demonstrated exceptional circumstances that warranted an extension of the limitation period. As a result, the application for an extension of the limitation period was dismissed. Consequently, the claim was dismissed, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The application for extension of the limitation period is dismissed

2. The Claim is dismissed

3. The applicant is ordered to pay the respondent’s costs

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.

CITATION:	Stanley-Clarke v Boyle [2012] QSC 196
PARTIES:	HEVEN LEIGH (HELEN) STANLEY-CLARKE Applicant v ROBERT BOYLE Respondent
FILE NO/S:	S 243 of 2012
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court Rockhampton
DELIVERED ON:	24 July 2012
DELIVERED AT:	Rockhampton
HEARING DATE:	16 July 2012
JUDGE:	McMeekin J
ORDERS:	The application for extension of the limitation period is dismissed The Claim is dismissed The applicant is ordered to pay the respondent’s costs
CATCHWORDS:	LIMITATION OF ACTIONS – EXTENSIONS OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURY MATTERS – whether proceedings have been properly served – whether proceedings can continue despite the applicant’s failure to comply with the Personal Injuries Proceedings Act 2003 (Qld) – whether the proceedings are out of time by virtue of s11 Limitation of Actions Act 1974 (Qld) – whether the limitation period should be extended Batistatos v Roads & Traffic Authority (2006) 226 CLR 256 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Castillon v P&O Ports Ltd (2008) 2 Qd R 219 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 Ex Parte Bolewski [1981] Qd R 54 Moriarty v SunbeamCorporation Limited [1988] 2 Qd R 325 Noonan v MacLennan & Anor [2010] QCA 50 Phipps v Australian Leisure and Hospitality Group Limited & Anor [2007] 2 Qd R 555 Semmler v Coles Group Ltd [2008] 2 Qd R 556 Sugden v Crawford [1989] 1 Qd R 683 Limitation of Actions Act 1974 (Qld) ss 11, 30, 31, 38 Personal Injuries Proceedings Act 2003 (Qld) ss 6, 9A, 18 Service & Execution of Process Act 1992 (Cth) s 16 Uniform Civil Procedure Rules 1999 (Qld) rr 16, 104, 105, 106, 123, 144, 149, 382
COUNSEL:	Applicant in person A Arnold for the respondent
SOLICITORS:	Applicant in person Moray & Agnew Lawyers for the respondent