Uzsoki v. McArthur - [2007] QDC 110

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.
[2]General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125.

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…

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 Uzsoki v. McArthur

Details

AGLC: Uzsoki v McArthur [2007] QDC 110
Case: [2007] QDC 110
Decision Date: 15 June 2007

CaseChat Overview and Summary

In the matter of Uzsoki versus McArthur, the case before the court involved a claim for negligent advice leading to psychiatric injury. The plaintiff, Uzsoki, alleged that McArthur, a solicitor, provided negligent advice resulting in psychiatric harm. The case was heard and determined in the Supreme Court of Queensland.

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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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