Richards v Gillies [2001] VSC 176

Supreme Court of Victoria|2001-05-22|Before: BEACH, J.

In July 1975 the plaintiff, Barry Richards, alleged that he sustained severe injuries as a result of the negligence of a surgeon, Mr John Grant, and the staff at the Allendale Private Hospital. He later, and, as I understand it, in 1987, but that date may not necessarily be correct, instituted a proceeding in this court against Mr Grant and the Allendale Private Hospital seeking to recover damages.

The proceeding came on for trial before Ormiston, J., as he then was, and a jury in February of 1988. The trial proceeded for some days and the case was then settled. Mr Ross Gillies, Q.C., who led Mr Hazelwood Ball, handled the matter for Mr Richards, their instructing solicitor was Mr John Snowden of Phillips Fox and Masel.

On 4 November 1994 Mr Richards filed an originating motion in the court in which he sought an order under s.23A of the Limitations of Actions Act 1958 extending the time within which he could institute a proceeding against Mr Gillies, Mr Ball and Mr Snowden seeking damages for what he alleged was their negligence insofar as the settlement of the proceeding in 1988 was concerned.

The originating motion came before me in the Practice Court on 7 December 1994. I dismissed the originating motion on the ground that it was misconceived because the plaintiff's claim was not a claim which included damages in respect of personal injuries, it was a claim for damages against his former barristers and solicitors for what he alleged was their breach of duty as his legal advisers.

On 19 December 2000 Mr Richards filed another originating motion in court in which he seeks the same relief as he sought in the 1994 proceeding. The originating motion came before Master Wheeler on 30 April 2001 and the master referred the proceeding to the judge in the PRACTICE COURT seeking answers to the following questions:

1. Whether the plaintiff's application ought be dismissed or stayed by reason of res judicata, issue estoppel or because it is an abuse of process; and

2. Whether the plaintiff's application ought to be dismissed because the action sought to be brought by the plaintiff is not an action for negligence, nuisance or breach of duty where the damages claimed cannot have or include damages in respect of personal injuries to any person within the meaning of s.23A of the Limitations of Actions Act 1958.

The short answer to the questions posed is, firstly, that the present proceeding should be dismissed because it is both caught by issue estoppel and is an abuse of process. The answer to the second question posed is simply yes.

Accordingly, the proceeding filed by the plaintiff in this court on 19 December 2000 is dismissed.

I order that the plaintiff pay the defendants' costs of the proceeding including any reserve costs on an indemnity basis.

I further order that the plaintiff is not to institute any further proceeding in this court naming as defendants Ross Gillies, Hazelwood Ball or John Snowden relating in any way to the proceeding in which the applicant was involved in this court in February 1988 without first obtaining the leave of a judge of the court to do so.

Limitations of Actions Act 1958

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