DISTRICT COURT OF QUEENSLAND
CITATION:
Uzsoki v McArthur [2007] QDC 110
PARTIES:
KATHY UZSOKI
Plaintiff
AND
JOHN McARTHUR
Defendant
FILE NO/S:
D1699/01
DIVISION:
PROCEEDING:
Application
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
15 June 2007
DELIVERED AT:
Brisbane
HEARING DATE:
4 May 2007
JUDGE:
McGill DCJ
ORDER:
The words “and sexual battery” in paragraph 13 of the Further Further Amended Statement of Claim filed 18 May 2005 be struck out; application otherwise dismissed; the defendant pay the plaintiff’s costs of the application.
CATCHWORDS:
NEGLIGENCE – Duty of Care – negligent advice – psychiatric injury – whether duty arises on pleaded facts – pleading not struck out.
PRACTICE – Statement of Claim – Striking out – whether cause of action shown – delay in application irrelevant - negligent words causing psychiatric injury – not sufficiently clear to strike out.
UCPR s 171.
Bain v Altoft [1967] Qd R 32 – cited.
Battiato v Lagana [1992] 2 Qd R 234 – cited.
Brisbane Unit Development Corporation Pty Ltd v Deming No. 456 Pty Ltd [1983] 1 Qd R 16 – followed.
Bruce v Smiths Newspapers Ltd [1931] VLR 303 – cited.
Cross v Howe (1892) 62 LJ Ch 342 – cited.
Gent v Harrison (1893) 69 LT 307 – distinguished.
Griffiths v Lamb (1904) 21 WN (NSW) 32 - distinguished.
Pickering v McArthur [2005] QCA 294 – followed.
Pickering v McArthur [2005] QDC 81 – applied.
Tame v New South Wales and Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 – applied.COUNSEL:
M. Grant‑Taylor SC and C. Heyworth‑Smith for the plaintiff
A. P. J. Collins for the defendant
SOLICITORS:
Maurice Blackburn Cashman for the plaintiff
Woodgate Hughes for the defendant
This is an application to strike out the current statement of claim[1] pursuant to r 171 on the basis that it does not disclose a reasonable cause of action. Alternative grounds based on other parts of r 171 were also relied on in the application, but most of these are inappropriate and the argument was advanced only on the basis that the pleading does not disclose a reasonable cause of action. The argument was advanced not on the basis that there was any deficiency in the statement of claim in point of pleading, but rather that the facts alleged in the statement of claim do not give rise to a cause of action for damages against the defendant. The test for striking out on that basis is a rigorous one, that the plaintiff’s claim as pleaded is so clearly untenable that it cannot possibly succeed.[2]
[1]Filed 18 May 2005; the claim was filed 9 April 2001, and amended statements of claim were filed on 29 September 2003 and 18 December 2003.
Delay
The first point taken on behalf of the plaintiff was that the application had been brought too late, the pleading in question having been filed about two years ago. It was submitted that…
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- Uzsoki v McArthur [2007] QDC 110
- Case
- [2007] QDC 110
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether a duty of care arose from the facts pleaded by the plaintiff, specifically if the negligent advice led to psychiatric injury. The court had to decide whether the cause of action was sufficiently clear to withstand a motion to strike out the statement of claim. Additionally, the court had to consider the impact of any delay in filing the application on its consideration.
The court found that the plaintiff's statement of claim, while delayed, sufficiently outlined a cause of action for negligent advice causing psychiatric injury. The court held that the mere fact of delay in bringing the application was not determinative and that the pleading was not so unclear as to warrant a strike-out. The court further ruled that the specific words “and sexual battery” in paragraph 13 were extraneous and struck them from the pleading. The application was dismissed with the defendant ordered to pay the plaintiff's costs of the application.
Orders
Orders of the court
The words “and sexual battery” in paragraph 13 of the Further Further Amended Statement of Claim filed 18 May 2005 be struck out; application otherwise dismissed; the defendant pay the plaintiff’s costs of the application.
Background
Background to the litigation
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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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