Breen v Larkin [2003] QCA 158

1 [2003] QCA 158 COURT OF APPEAL McPHERSON JA WILLIAMS JA MUIR J Appeal No 4012 of 2002 SHARNEE GAYE BREEN (AN INFANT BY HER NEXT FRIEND GAYE KATHERINE BREEN) Appellant/Plaintiff and MARGARET LARKIN (AS PERSON REPRESENTATIVE OF PAUL KELSALL LARKIN) Respondent/Defendant BRISBANE ..DATE 14/04/2003 JUDGMENT -- 1 of 5 -- 14042003 T4/IRK13 M/T COA72/2003 2 JUDGMENT 1 10 20 30 40 50 60 MR S DI CARLO (instructed by Baker Johnson Lawyers) for the appellant MR S C WILLIAMS QC, with him MR G W DIEHM (instructed by Flower and Hart) for the respondent McPHERSON JA: This action alleging medical negligence by the defendant at the birth of the plaintiff in December 1992 was heard almost exactly a year ago. Judgment was given for the defendant on 24th April 2002 and an appeal was instituted two weeks later on 3rd May 2002. The appellant's outline of argument was filed on 13 June 2002 and the respondent's response on 15th of July 2002. The bound appeal record books were available for collection on 6 January 2003 and the solicitors were so advised by the Registry. To all intents and purposes the appeal was then ready for hearing today, which is the date for which it was set down for hearing as long ago as 16th of October 2002. The first intimation that something was going wrong was in a letter dated 7th April 2003 from solicitors for the appellant. Mr Cooke QC with Mr Di Carlo of counsel had appeared for the plaintiff appellant at the trial. Their names appear on the written outline of argument for the appeal. The letter said that the solicitors had briefed Mr Cooke to appear at the trial and had forwarded the record books to his Chambers in early March 2003. -- 2 of 5 -- 14042003 T4/IRK13 M/T COA72/2003 3 JUDGMENT 1 10 20 30 40 50 60 They said in their letter that they had recently learnt that Mr Cooke was conducting an inquiry in Papua New Guinea and was no longer available for the appeal. They had now briefed Mr Di Carlo to conduct the appeal. However, a search of Mr Cooke's chambers had succeeded in locating only one of the three volumes of record. They asked for an adjournment as Mr Di Carlo's preparation of the appeal had, they said, been hindered by the absence of the other two volumes. The solicitors were advised by the Registrar, with my authority, that if those volumes could not be found they could purchase another two volumes at a cost of $220. On Friday morning, 11 April, which was last Friday, today being Monday, a letter was received by the Registry from Mr Di Carlo explaining that the two replacement books had been collected by his secretary on the preceding Thursday afternoon but without his express authority. He said he had been away from Chambers since Monday for personal reasons and had never accepted the brief to appear on the appeal. The most he had done was to say he would consider it. In any event, he said he would be unable to deliver an outline of argument on appeal until Monday morning, which is today, the day of the hearing. In order to do justice to the appellant it was his "strong preference" that the matter be adjourned "even for a short period" to allow appropriate preparation. -- 3 of 5 -- 14042003 T4/IRK13 M/T COA72/2003 4 JUDGMENT 1 10 20 30 40 50 60 Several comments are apposite. One is that Mr Di Carlo says he was unaware when he wrote the letter that the outline of argument had been delivered in his name as long ago as June last year. It bears his and Mr Cooke's name and it bears his signature but not that of Mr Di Carlo. Secondly, one would have expected the solicitors to have ensured at some time prior to a week ago that Mr Cooke was available for the appeal. Thirdly, the question is, of course, not simply one of justice only to the appellant plaintiff. The defendant opposes the adjournment. The incident giving rise to the action took place over 10 years ago. At the trial the defendant obstetrician was very ill. He has since died in September 2002. His widow as personal representative has now been substituted as respondent to the appeal. Apart from that consideration, however, the respondent defendant was unable to point to any more specific prejudice than is common in cases of this kind when an appeal is adjourned. Such prejudice, it is generally accepted, can be compensated by an award of costs against the party asking for the adjournment. Mr Di Carlo has frankly confessed that he is unable to do justice to his client's case on the appeal this morning. In the circumstances we are, and for my part somewhat against my inclination, bound to grant an adjournment to a future sitting of the Court. We understand that it is unlikely that the matter can be heard now before September of this year. -- 4 of 5 -- 14042003 T4/IRK13 M/T COA72/2003 5 JUDGMENT 1 10 20 30 40 50 60 The adjournment must, of course, be on the usual terms as to costs, which are that the appellant asking for the adjournment must pay. It is evident from the solicitor's letter dated 7th April 2003 concerning further copies of the record books, that the financial position of the appellant is not at all good. On all the material there is a possibility, which I would regard as not inconsiderable, that the costs, if ordered against the appellant, will not be paid. In the result I would make the following orders: (1) the appeal is adjourned to a date to be fixed; (2) the appellant is to pay the respondent's costs of and incidental to the adjournment to be assessed; (3) we, as the Court, accept the undertaking of the solicitors for the appellant to pay the costs thrown away by this adjournment and we record expressly that that, of course, includes the costs that we have ordered as well as any other costs thrown away in consequence of the adjournment. WILLIAMS JA: I agree. MUIR J: I agree. ----- -- 5 of 5 --