Uzsoki v. McArthur - [2007] QCA 401

SUPREME COURT OF QUEENSLAND

CITATION:

Uzsoki v McArthur [2007] QCA 401

PARTIES:

KATHY UZSOKI
(plaintiff/respondent)
v
JOHN McARTHUR
(defendant/applicant)

FILE NO/S:

Appeal No 5896 of 2007
DC No 1699 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2007

JUDGES:

McMurdo P, Jerrard JA and Holmes JA
Joint reasons for judgment of McMurdo P and Holmes JA; separate reasons of Jerrard JA dissenting

ORDER:

1. Application for leave to appeal refused
2. The applicant to pay the respondent’s costs

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – where the applicant made an application to strike out the respondent’s further further amended statement of claim pursuant to r 171 of the Uniform Civil Procedure Rules1999 (Qld) – where the District Court refused the application – whether a cause of action in negligence was sufficiently made out in the statement of claim – whether the statement of claim should be struck out

Uniform Civil Procedure Rules1999 (Qld), r 171

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, considered
Pickering v McArthur [2005] QCA 294; CA No 4013 of 2005, 16 August 2005, distinguished

COUNSEL:

A P J Collins for the applicant
M Grant-Taylor SC, with C Heyworth-Smith, for the respondent

SOLICITORS:

Woodgate Hughes for the applicant
Maurice Blackburn Cashman for the respondent

McMURDO P AND HOLMES JA: The applicant defendant seeks leave to appeal against the decision of a District Court judge refusing, except in respect of a single allegation, to strike out the plaintiff respondent’s further further amended statement of claim pursuant to r 171 of the Uniform Civil Procedure Rules1999 (Qld). (For simplicity’s sake, we will refer to the parties as plaintiff and defendant.) The plaintiff’s action against the defendant was for damages for personal injuries resulting from his negligent provision of counselling to her.

The further further amended statement of claim pleads that the defendant carried on business as a massage therapist; that he held himself out as a counsellor; that in the course of giving the plaintiff massages he counselled her as to various matters including her relationships and in that context advised her that she needed a relationship with a man; that he engaged in “inappropriate sexual behaviour” during those massages; that he knew or ought to have known that the plaintiff would rely on his exercise of due care and skill in providing the counselling; that the plaintiff’s reliance on him in that regard was reasonable in the circumstances; that the plaintiff reasonably expected him to exercise due care in the provision of the counselling; that the defendant could reasonably foresee that a failure to exercise due care and skill in providing the counselling would result in injury to the plaintiff; and that he owed a duty to the…

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] QCA 401
Case: [2007] QCA 401
Decision Date: 16 November 2007

CaseChat Overview and Summary

The matter of Uzsoki v. McArthur involved a dispute where the applicant sought to have the respondent’s further further amended statement of claim struck out. The application was brought under rule 171 of the Uniform Civil Procedure Rules 1999 (Qld). The District Court had initially refused to grant the applicant’s application, prompting the applicant to seek leave to appeal to the Supreme Court of Queensland. The primary issue before the Court was whether the statement of claim adequately disclosed a cause of action in negligence.

The Court examined the respondent's further further amended statement of claim to determine if it sufficiently outlined the elements necessary for a negligence claim. The applicant argued that the statement of claim did not meet the threshold for establishing a viable cause of action. However, the Court found that the statement of claim, despite its amendments, did indeed contain sufficient particulars to establish a prima facie case in negligence. The Court considered that the respondent had adequately outlined the duty of care, the breach of that duty, and the resulting damage, thus fulfilling the requirements for a negligence claim.

In light of the Court’s analysis, it determined that the statement of claim was not deficient to the extent that it warranted being struck out. The Court rejected the applicant’s application, holding that the respondent’s claim was sufficient to proceed to trial. Consequently, the Court refused the applicant’s application for leave to appeal and ordered the applicant to pay the respondent's costs. This decision underscored the importance of ensuring that a statement of claim contains adequate particulars to establish a cause of action, and that a claimant’s right to have their case heard should not be lightly dismissed.

Orders

Orders of the court

1. Application for leave to appeal refused

2. The applicant to pay the respondent’s costs

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] QCA 401
PARTIES:	KATHY UZSOKI (plaintiff/respondent) v JOHN McARTHUR (defendant/applicant)
FILE NO/S:	Appeal No 5896 of 2007 DC No 1699 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	16 November 2007
DELIVERED AT:	Brisbane
HEARING DATE:	24 October 2007
JUDGES:	McMurdo P, Jerrard JA and Holmes JA Joint reasons for judgment of McMurdo P and Holmes JA; separate reasons of Jerrard JA dissenting
ORDER:	1. Application for leave to appeal refused 2. The applicant to pay the respondent’s costs
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – where the applicant made an application to strike out the respondent’s further further amended statement of claim pursuant to r 171 of the Uniform Civil Procedure Rules1999 (Qld) – where the District Court refused the application – whether a cause of action in negligence was sufficiently made out in the statement of claim – whether the statement of claim should be struck out Uniform Civil Procedure Rules1999 (Qld), r 171 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, considered Pickering v McArthur [2005] QCA 294; CA No 4013 of 2005, 16 August 2005, distinguished
COUNSEL:	A P J Collins for the applicant M Grant-Taylor SC, with C Heyworth-Smith, for the respondent
SOLICITORS:	Woodgate Hughes for the applicant Maurice Blackburn Cashman for the respondent