Proctor : July 2019
53 PROCTOR | July 2019 ON APPEAL on its own, vexatious or oppressive – where the two premises may be accepted – where the conclusion does not follow – where no authority has been cited for the novel principle that once a plaintiff has commenced a proceeding in federal jurisdiction in an Australian court, that plaintiff is entitled to an injunction to prevent a defendant litigating the dispute anywhere else and, it seems, whatever the circumstances – where the principle must also have escaped the attention of Gummow J when his Honour decided National Mutual Holdings Pty Ltd v Sentry Corp (1989) 22 FCR 209 as a member of the Federal Court. Leave to reopen the hearing of the appeal refused. Appeal dismissed. Costs. Masson v State of Queensland  QCA 80, 10 May 2019 Miscellaneous Application – Civil – where the appellant suffered a severe asthma attack – where the appellant was unconscious, had a low respiratory rate but had high blood pressure and a high pulse rate – where an ambulance officer treated the appellant initially by the intravenous administration of the drug salbutamol and then 20 minutes later by the intravenous administration of the drug adrenaline – where the appellant suffered hypoxic brain damage and later died as a result of the asthma attack – where the ambulance officer’s manual instructed the officer to “consider adrenaline”, not salbutamol – where the ambulance officer administered salbutamol in amounts in excess of the manual’s guidance – whether the ambulance officer considered the administration of adrenaline – whether the ambulance officer departed from the manual – whether there is a responsible body of medical opinion in favour of the administration of salbutamol over adrenaline where a person in imminent arrest has high blood pressure and a high heart rate – whether it is consistent with the exercise of reasonable care and skill for an ambulance officer to depart from the guidance of their manual – where Ms Masson was not treated in accordance with the Clinical Practice Manual (CPM) – where the use of adrenaline was not considered as required by the flowchart – where if it was considered at all, it was inconsistent with the CPM to decide to administer twice the permitted dosage of salbutamol in the hope that this would be as effective as the administration of adrenaline – where the CPM was not relevantly ambiguous – where the understanding of the senior officer and determinative decision maker at the scene, Mr Peters, was that adrenaline was not even to be considered for a patient who was not bradycardic – where it would have been remarkable if the CPM precluded the use of adrenaline where the heartrate was normal – where Mr Peters’ conduct cannot be excused on the basis of a reasonable but mistaken interpretation of the CPM – where an ambulance officer could not have been expected to know of the existence of competing bodies of medical opinion on that subject, and was not competent to make an assessment of the respective merits – where, instead, the exercise of reasonable care required the ambulance officer to be guided by the CPM – where his Honour’s finding that there was a responsible body of opinion in the medical profession to support the administration of salbutamol to a patient with Ms Masson’s high heart rate and blood pressure was not supported by the evidence – where each of the three medical practitioners who gave evidence in the respondent’s case subscribed to the view that salbutamol was an equally effective drug for bronchodilation – where none of them said that, upon the premise that adrenaline was the superior drug for the treatment of an asthmatic at immediate risk of cardiac failure and death, that the risk from using an inferior drug was outweighed by the risk of side effects from the adrenaline – where consequently, there was no basis, consistent with the exercise of reasonable care and skill by Mr Peters as an ambulance officer, for him to use what he ought to have understood was a less effective drug for a patient in this critical condition – where the existence of potential side effects, from the perspective of an ambulance officer instructed by the CPM, was not a justification for instead using salbutamol – where it follows that the trial judge ought to have held that Mr Peters was negligent in not administrating adrenaline at the outset – where the respondent was vicariously liable for Mr Peters’ negligence. Appeal allowed. Set aside the orders made on 23 July and 8 August 2018. Written submissions as to the amount for which the appellant should be given judgment and costs of the appeal and in the trial division. Allen v Ruddy Tomlins & Baxter  QCA 103, 28 May 2019 Application for Leave s118 DCA (Civil) – where the applicant client and the respondent, a firm of solicitors, entered into a costs agreement in August 2005, which was terminated in August 2007 – where the applicant objected to the respondent’s bill of costs and applied for a costs assessment under the Legal Profession Act 2007 (Qld) (LPA) s335(1) – where the costs assessor filed an ‘interim decision’ in the District Court in March 2009, and subsequently a costs assessor’s certificate in July 2017 – where the registrar made orders pursuant to that certificate in 2017 – where the respondent submitted that the Legal Profession Act 2007 (Qld) and the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) gave rise to an independent “codified regime for the quantification and recovery of legal costs between a law practice and client” that exists outside the ambit of the regime under the Limitation of Actions Act 1974 (Qld) (LAA), such that it was not time barred from claiming its costs from the applicant – where in Edwards v Bray  2 Qd R 310 (Edwards), the court was required to consider whether, by virtue of the provisions of the Queensland Law Society Act 1952 (Qld) (QLS Act), there was more than one source of a solicitor’s entitlement to payment – where the court held that the relationship between solicitor and client was contractual, which upon termination of the retainer, gave rise to a cause of action for moneys owing pursuant to contract – while s10(1)(d) of the LAA applied where the claimant had a right of recovery sourced in a statute and a cause of action (that is, a factual situation which would support his or her right to judgment) had arisen, s6ZE(2) of the QLS Act was not a source of the applicant’s right of recovery – where the relevant limitation period that was held to apply was one of six years from the accrual of the cause of action pursuant to s10(1)(a) of the LAA – where the court noted that, where there was a concern that the limitation period was about to expire, a solicitor’s position could be protected by obtaining the court’s leave to start a proceeding pursuant to s48J(2) of the QLS Act – where the conclusion in Edwards remains relevant – while there are two avenues to judgment, one being by bringing a proceeding for moneys owing pursuant to the terminated retainer, and the other being by an assessment application, the underlying cause of action is contractual – where it follows that an application to the court for assessment under the LPA is not an ‘action’ for the purposes of the LAA – where as observed in Edwards, the respondent could have protected its position by seeking leave to commence proceedings prior to the limitation period expiring pursuant to s328 of the LPA – where a client brings a costs application under the UCPR, the client is using an administrative procedure for the determination of a dispute as to the quantum of a debt, and not seeking relief as to the vindication of the rights concerning the validity of the costs agreement or the contractual debt – where the application by the client does not therefore constitute an action founded on contract; nor can it constitute a proceeding by the solicitor, the ‘person’ referred to in s10 of the LAA, for the purpose of that Act – where the fact that, where appropriate, the administrative process can be made the vehicle for the determination of issues such as the contractual entitlement of the solicitor, or the validity of the contract founding a claim, does not lead to the client’s application for assessment itself constituting an action for the purposes of the LAA – where, indeed, r743H(3) of the UCPR provides a practical opportunity to determine whether the underlying cause of action has been extinguished by the relisting procedure under r743H – where it is difficult to see why the time period for the recovery of costs (as a contractual debt) should differ depending on whether the client challenges the quantum of costs or whether the solicitor brings a recovery proceeding (or costs assessment application) – where if an application for a costs assessment brought by the client sufficed as an ‘action’ under the LAA, and one under which the solicitor could claim costs, the practical effect would be to remove a client’s entitlement to raise a time limitation to the solicitor’s claim once an application for costs assessment has been made by the client – where that consequence does not promote the purpose of s3 of the LPA to regulate legal practice in Queensland in the interests of the administration of justice and “for the protection of consumers” – where an application for costs assessment pursuant to s335(1) of the LPA is not an ‘action’ for the purposes of the LAA – where in the present case, the respondents brought no action within the period prescribed by the LAA, which remained applicable – where the applicant raised the issue of the respondent’s entitlement to recover costs after the filing of the assessor’s certificate in accordance with r743H of the UCPR. Application for leave to appeal granted. Appeal allowed. Order of 21 March 2018 be set aside. Written submissions on costs.