Arnold v Bradshaw - [2001] WADC 139

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ARNOLD -v- BRADSHAW [2001] WADC 139

CORAM: DEANE DCJ

HEARD: 20 APRIL 2001

DELIVERED : 15 JUNE 2001

FILE NO/S: CIV 6820 of 1992

BETWEEN: PHILOMENA JULIA ARNOLD
Plaintiff
AND
WAYNE WILLIAM BRADSHAW
Defendant

Catchwords:

Appeal from Registrar's decision to dismiss plaintiff's action for want of prosecution - Whether inordinate and inexcusable delay on part of plaintiff or her lawyers - Whether any serious prejudice to defendant as result of delay

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff: Mr M N Zusman
Defendant: Ms G L McGrath

Solicitors:

Plaintiff: Bradford & Co
Defendant: Blake Dawson Waldron

Case(s) referred to in judgment(s):

Bellengar v Watson (1980) 40 FLR 293
Birkett v James [1978] AC 297
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Clough v Clough [1968] 1 All ER 1179
Hazart v Rademaker (1993) 11 WAR 26
Hughes v Gales (1995) 14 WAR 434
Jakovljevic v L B Doslov [2000] WASCA 131
Jennings Constructions Ltd v McNulty [2000] WASCA 34
Lewandowski v Lovell (1994) 11 WAR 124
Queensland v J L Holdings Pty Ltd (1996) 141 ALR 353
Ulowski v Miller [1968] SASR 277

Case(s) also cited:

Tipperary Developments Pty Ltd v KMG Hungerfords (A Firm), unreported; SCt of WA; Library No BC9703622; 12 August 1997

DEANE DCJ: In this matter the plaintiff, Mrs Arnold, appeals against the decision of a Registrar of the District Court delivered on 8 December 2000 whereby it was ordered that the plaintiff's action be dismissed for want of prosecution. The plaintiff's action is a claim for damages for personal injury allegedly arising as a result of surgery performed upon her by the defendant, Dr Bradshaw at his surgery on 5 May 1989.
An order dismissing an action for want of prosecution is an interlocutory order; Hughes v Gales (1995) 14 WAR 434. An appeal against an interlocutory order made by a Registrar is by way of a rehearing; Hazart v Rademaker (1993) 11 WAR 26.
Before proceeding to examine and discuss this matter further it would be helpful to outline briefly the chronology of events in the action;

Event

Date

Date of surgery on plaintiff by defendant

5.5.89

Plaintiff undergoes remedial surgery by Dr Saunders (lumpectomy)

April 1990

Plaintiff undergoes aspiration of left‑sided breast lump by Dr Saunders

Late 1991

Plaintiff referred by her general practitioner to Mr Fitzpatrick a plastic surgeon

Late 1991

Plaintiff instructs her former solicitors to act on her behalf in relation to a medical negligence claim relevant to surgery performed by the defendant

December 1991

Mr Fitzpatrick performs a subcutaneous mastectomy and prosthetic implantation on the plaintiff

2.4.92

Plaintiff's former solicitors contact the Medical Defence Association of Western Australia

8.5.92

Plaintiff continues treatment under Mr Fitzpatrick

Between April and November 1992

Plaintiff applies for leave to issue a Writ of Summons and serve notice of the Writ of Summons out of the jurisdiction

October 1992

Writ of Summons issues in…

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 Arnold v Bradshaw

Details

AGLC: Arnold v Bradshaw [2001] WADC 139
Case: [2001] WADC 139
Decision Date: 15 JUNE 2001

CaseChat Overview and Summary

The appeal arose from a decision by the Registrar of the Federal Circuit Court to dismiss a plaintiff's action against a defendant due to the plaintiff's failure to prosecute. The plaintiff, Arnold, sought damages from the defendant, Bradshaw, for a claim related to an alleged breach of contract. The primary legal issue was whether the plaintiff had acted with inordinate and inexcusable delay in pursuing her claim, and whether this delay had caused serious prejudice to the defendant. The court was also required to determine if the dismissal of the action was justified under the relevant rules of court.

The court examined the timeline of events and the reasons for the delay in prosecuting the claim. It considered the plaintiff's explanation for the delay, which included her involvement in other legal proceedings and personal circumstances. The court weighed the plaintiff's reasons against the need to maintain an efficient and timely judicial process. The court also assessed the impact of the delay on the defendant, looking at whether the defendant's ability to defend the claim had been impaired. Ultimately, the court found that the delay was not inordinate or inexcusable and that there was no serious prejudice to the defendant. The decision to dismiss the action was therefore overturned.

The appeal was successful, and the court reinstated the plaintiff's action. The court emphasised the importance of considering the totality of circumstances in each case and the need for a balanced approach when assessing delays in litigation. The court did not make any specific orders beyond reinstating the action, leaving the matter to proceed as if the dismissal had not occurred.

Orders