FEDERAL COURT OF AUSTRALIA

Luck v Hunter [2001] FCA 1470

GAYE LUCK (FORMERLY KUPERMAN) v DR ROSS B HUNTER, R B HUNTER (MEDICAL) PTY LTD ACN 088 496 995, NOCDOC, DR D MCALPINE, P W KERRISK (TOWNSVILLE) PTY LTD T/A AITKENVALE MEDICAL CENTRE ACN 011 003 231, DR PETER BUCHANAN, DR HENRY LAU, CONSULTANT PATHOLOGISTS (TOWNSVILLE) PTY LTD ACN 010 106 680, DR GRANT WITHEY AND QUEENSLAND X-RAY SERVICES BN 3332160

V 392 OF 2000

DOWSETT J

28 SEPTEMBER 2001

BRISBANE

THE COURT ORDERS THAT:

1.         The statement of claim as against the tenth respondent be struck out.

2.         The application as against the tenth respondent be dismissed.

3.         The applicant pay the respondent’s costs of the application including reserved costs.

4.         The balance of the action be transferred to the abeyance list.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application to dismiss proceedings commenced against the tenth respondent in action V392 of 2000.  The tenth respondent is alleged to have been the principal for whom the ninth respondent was acting in carrying out a CT scan procedure upon the applicant.  This applicant has commenced proceedings against numerous persons.  I have previously dismissed most of them.  There are two primary allegations in the claim against the tenth respondent.  The first appears in par 29 on p 6 of the statement of claim which alleges:

“On or about 13 October 1997, the applicant underwent a chest CT scan procedure performed by the ninth respondent at the premises of the tenth respondent.  The report made by the ninth respondent made mention of bullous emphysematous change, a tracheal soft tissue nodule, recommended a bronchoscopy, but there was made no mention of the heart nor any pericardial effusion.”

2                     The second allegation appears on p 7 at par 23, there being irregularities in the paragraph numbering.  That paragraph alleges:

“On or about 17 October 1997, the applicant underwent a CT scan of the sinuses at the premises of the tenth respondent:

(a)       the films were incorrectly labelled with the first name of the applicant the sixth respondent's family name;

(b)       the time stated on the films as the time of procedure was incorrect;

(c)        the applicant arranged to have a new set of films produced with the correct name on the label;

(d)       and a letter stating the reason for the incorrect time and that they were in fact the scans of the applicant.”

3                     In par 44 it is alleged, with respect to par 29 on p 6, that pericardial effusion was present. 

4                     It seems to be asserted that the applicant has suffered in some way as a result of these alleged errors.  With respect to that raised in par 29 I have previously held that the facts do not support a cause of action against the ninth respondent, although my reasons for doing so may have been a little elliptical.  No facts are pleaded to demonstrate that in the procedure which the ninth respondent conducted, he ought to have discovered the matter which it is alleged he did not discover or at least did not report.  Further, no facts are pleaded which would justify the implicit assertion that he should have reported them.  It is for those reasons that the claim as against the ninth respondent was struck out.  For the same reasons the claim against the tenth respondent must also be struck out.  As to the allegations contained in par 23 on p 7, it is inconceivable that the applicant suffered any recoverable loss as a result of that conduct, even assuming that it occurred.  In those circumstances the proceedings must be vexatious.  They too should be struck out.  The statement of claim as against the tenth respondent will be struck out.  The application as against the tenth respondent will be dismissed.  I order the applicant to pay the respondent’s costs of the application including reserved costs.

5                     As to the balance of the action against the third and fourth respondents, “Nocdoc” is a business name which is owned by a company in liquidation, as appears from my earlier reasons.  I have previously been told that Dr McAlpine has not been served.  For completeness I should say that Ms Luck has, on previous occasions, indicated that she will not participate in these proceedings by video-link for religious reasons.  I have some difficulty in understanding that in view of the fact that on one occasion, she sent her rector along to appear on her behalf.  He apparently had no such problems.

6                     In any event, it is impossible for the Court to conduct the proceedings under these circumstances.  The matter was transferred to the Brisbane Registry by order of one of the Melbourne judges.  That order was upheld on appeal.  In the circumstances I think that the best course is to order that the balance of the action be transferred to the abeyance list.

Associate:

Dated:              19 October 2001