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

1. 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. 

2. 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.

3. 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 Action CIV 6820 of 1992	3.11.92
Plaintiff engages agents in Singapore in an attempt to serve the defendant	Between November 1992 and October 1993
Plaintiff applies for leave to extend validity of the Writ of Summons	October 1993
Plaintiff's former solicitors engage agents in the Maldives to serve the defendant with the Writ of Summons	January 1994
Writ of Summons served on defendant	5.2.94
Memorandum of Appearance entered on behalf of defendant	16.8.94
Plaintiff issues Summons for orders for filing and service of Defence by defendant	9.11.94
Plaintiff's application for orders for filing and service of Defence dismissed (Statement of Claim not yet filed)	17.11.94
Defendant returns to Maldives following a 4 week stay in Adelaide	December 1994
Plaintiff transfers her file from her former solicitors to a new solicitor Mr Rennie	January 1995
Plaintiff applies for Legal Aid	1.2.95 (decision of refusal Legal Aid reviewed in May 1995)
Plaintiff contacts Office of the Premier and the Minister for Health enquiring as to defendant's financial circumstances	February 1995
Defendant convicted on corruption charges for which he was fined $20,000 and sentenced to 3 years imprisonment; incarcerated between September 1995 and May 1996; released to parole in August 1996	Early 1995
Plaintiff rejects conditional basis upon which Legal Aid Review Committee grant her aid	9.5.95
Mr Rennie advises plaintiff to defer further proceedings until more information gained regarding defendant's circumstances	November 1995
Defendant disbarred for 2 years by the WA Medical Board	December 1996
Defendant returns to Maldives	Soon after December 1996
Report of the Royal Commission into City of Wanneroo ("The Kyle Report") published	September 1997
Defendant returns to Perth	October 1998
WA Medical Board ban on defendant practising medicine lifted	December 1998
Plaintiff transfers her file from Mr Rennie to her current solicitors Bradford & Co	January 1999
Bradford & Co file Notice of Change of Solicitor and make general enquiries as to state of plaintiff's claim	April 1999
Notice of Intention to Proceed filed and served on defendant	2.2.00
Statement of Claim in Action CIV 6820 of 1992 filed and served	23.3.00
Defendant's solicitors request plaintiff's solicitors for extension of time to prepare a Defence	3.5.00
Plaintiff's solicitors forward medical reports to defendant's solicitors and enquire as to Defence	4.5.00
Defendant's solicitors advise that a Defence will be filed by 21 July 2000	17.7.00
Defendant's Summons for dismissal of action for want of prosecution filed	24.7.00
Defence filed on behalf of defendant	28.7.00

1. The chronology of the above events comes from not only the chronologies filed by the respective parties to the action but the events are also detailed in the parties' submissions as well as in a lengthy affidavit with annexures sworn by the plaintiff's counsel, Mr Zusman, on 28 August 2000.  Further relevant information has been obtained from two affidavits sworn by the plaintiff on 29 August and 19 October 2000 respectively with their relevant annexures, and two affidavits sworn by the defendant on 27 July and 16 September 2000 respectively. 

2. Apparently not long after surgery was performed upon her by the defendant in May 1989, the plaintiff developed a necrotic area around the site of the surgery on her left breast, this area became infected.  As a result, during 1990 the plaintiff attended upon Dr Saunders for treatment relevant to this problem.  Her general practitioner, Dr Gild, referred her to Mr Fitzpatrick, a plastic surgeon, and as can be seen from the chronology, he carried out surgery in April 1992 in an attempt to rectify the problems the plaintiff was experiencing with her breasts.  He performed further surgery upon her left breast in November of that year. 

3. A report of Dr Gild dated 11 August 2000 (MNZ-1) indicates that the plaintiff was a patient of his between December 1984 until November 1992, with one further visit in September 1996.  Regrettably when Dr Gild's surgery was computerised some years ago all notes, apart from case histories, were largely disposed of, including those relevant to the plaintiff.  The only reference that can be found as to the state of the plaintiff's breasts prior to 1989 is in February 1987 when apparently she complained of a painful right breast but received a normal mammogram on investigation. 

4. In March 1987 she again complained of a painful right breast and an ultrasound indicated a cyst in the area and was referred to Dr Saunders for an opinion.  Dr Gild speaks of a reference to the plaintiff's breasts in February 1989 relevant to previous hormone replacement therapy causing her breast lumps.  There is no reference to Dr Bradshaw in any of Dr Gild's case notes including in about May 1989. 

5. Again in October 1991 there is a reference to lumpiness in the plaintiff's breasts.  A note of 31 October 1991 comments on problems with the plaintiff's breasts - "previous fat augmentation by Wayne Bradshaw".  Due to problems with the plaintiff's breasts, including inflammation, Dr Gild's notes indicate that she was prescribed antibiotics and eventually in December 1991 she was referred to Mr Fitzpatrick as a result of which the plaintiff underwent bilateral subareolar mastectomies and prostheses.  This was a cause of considerable distress to the plaintiff according to Dr Gild's note of 8 July 1992.  The only specialist note Dr Gild has concerning the plaintiff's breasts is from Mr Fitzpatrick of 14 August 1993 indicating that Mr Fitzpatrick considered the plaintiff's implants were satisfactory and at that time he made no further appointment to see the plaintiff. 

6. Mr Fitzpatrick prepared a report of 5 June 1992 (MNZ-2) detailing the history of his consultations with the plaintiff.  She indicated to him that prior to her treatment by the defendant, apart from some arthritis, she was otherwise well with no problems relating to her breasts.  In the final paragraph of that report Mr Fitzpatrick, whom I understand to be put forward as an expert in this field on behalf of the plaintiff comments in a very negative fashion about the particular procedure adopted by the defendant in utilising the fat from liposuction for breast augmentation.  His opinion was that where this occurs the patient is at risk of suffering considerable health problems in the area of the procedure.  He was unable to detail the negative side effects of such a procedure other than commenting that deleterious side effects follow as a consequence. 

7. In an affidavit sworn by the defendant on 27 July 2000 he states that the issues raised by the plaintiff's claim are relevant to information and advice provided to the plaintiff by the defendant regarding the particular procedure she underwent.  I accept that this is the case and that in all likelihood a considerable amount of any evidence which may be given by the defendant will depend on the clarity and detail of his recollection of events that occurred at or about the critical time. 

8. Further to this issue the defendant submits that he will be prejudiced in his defence to this claim because the events in question occurred in excess of 11 years ago and the passage of time necessarily means that the accuracy of recollection, particularly where it is unassisted by contemporaneous notes, can be poor. 

9. According to the defendant, he sold his practice in or about 1990 and did not retain any records of patients.  He did, however, retain a copy of his medical notes relating to the plaintiff due to a complaint she had made to the Medical Board concerning her treatment by the defendant.  Apparently the medical records of the defendant's other former patients have now been destroyed and the defendant is concerned that he would not therefore be able to identify any other former patients who may be able to assist him in recollecting the nature of the warnings given by the defendant to them about the procedure that he also performed upon the plaintiff.  Having said this, however, in my view the real point of the exercise relates to what, if anything, the defendant is now after the passage of time, able to recall relevant to what he told the plaintiff, as distinct from other patients. 

10. Finally, the defendant makes the point in his affidavit that he no longer has copies of an information sheet regarding augmentation of breasts by way of autologous fat injection which extensively explained the procedure and risks involved.  He deposes that it was his invariable practise to provide this information sheet to patients undergoing the procedure and he believes that such a sheet was provided to the plaintiff when they discussed the procedure the subject of the plaintiff's claim.  Fortunately, in this regard the plaintiff in her affidavit of 29 August 2000 annexes a copy (PJA-1) of a handout from the defendant's surgery entitled "Suction Lipectomy Operative Instructions - Clinic Patients".  She also annexes a copy of a document (PJA-2) entitled "Lipo Sculpture - Autologous Fat Grafting".  A final document (PJA-3) is a two page photocopy handout dealing with liposuction.  The plaintiff read the first document annexed, prior to undergoing the procedure but the other two documents annexed were not read by her until she collected copies from the defendant's rooms in about January of 1991.  It is therefore not clear if the latter two documents were available before the plaintiff underwent the procedure in May 1989 or what if anything the defendant can now remember or say about the contents of these latter two documents.  Given that these documents, or at least the first document, exists and is available I do not consider that the defendant is prejudiced in regard to that matter.  This last aspect is relevant to an allegation that there was a failure by the defendant to warn the plaintiff of the risks of undergoing the procedure. 

11. A separate and distinct allegation by the plaintiff is that the surgery she underwent simply should not have been performed upon her by the defendant at the time in question.  It is unnecessary in my view to consider these allegations in any great detail for the purposes of this particular appeal. 

12. For the defendant to succeed in obtaining an order that an action by the plaintiff be dismissed for want of prosecution, the general principle applicable is that enunciated in Birkett v James [1978] AC 297 at 318 which was cited with approval in Lewandowski v Lovell (1994) 11 WAR 124 at 133;

    "The power should be exercised only where the court is satisfied either

    (i)that the default has been intentional and contumelious, eg, disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court;  or

    (ii)(a)that there has been an inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and

    (b)that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party." 

13. Further to this in Lewandowski's case at 133 Murray J noted:

    "In that reformulation of principle … it is made clear that not only must the delay, if not contumelious, be inordinate and inexcusable, but that the defendant will be required to demonstrate serious prejudice thereby." 

14. In matters such as this, it is not only the case that one has to examine the behaviour particularly relevant to delay on the part of a plaintiff but also one must consider whether the defendant by his or her conduct has contributed to the delay.  In that sense it is something of a balancing exercise.  The Court must also be mindful of the fact that a dismissal of a cause of action for want of prosecution may well lead to considerable and at times irreparable hardship to a plaintiff.  It may be the case, for example, that a plaintiff will have lost his or her cause of action entirely as due to the passage that cause of action is now statute barred. 

15. Counsel for the plaintiff argued that prejudice to the defendant of a general or broad nature, if it exists, is insufficient to warrant the plaintiff's cause of action being struck out for want of prosecution.  In this regard counsel relied on the comments of Nisbet DCJ in Jennings Constructions Ltd v McNulty [2000] WASCA 348 at 8. His Honour was of the view that the decision in Hughes v Gales (supra) or more particularly the reasoning in that case would now be qualified by the subsequent comments of the High Court in Queensland v J L Holdings Pty Ltd (1996) 141 ALR 353. I accept the supplementary submissions of counsel for the defendant that in the latter case the High Court were of the view that principles of case management, whilst a very important and relevant consideration involving the efficient administration of court procedures and justice within the courts, did not prevail so as to prevent an applicant from raising an arguable defence. I accept the submission that it follows as a matter of logic that any breach of case management principles is nonetheless a factor which the Court considers in deciding whether to exercise a particular discretion, for example, in dismissing an action for want of prosecution. Principles of case management, as counsel for the defendant points out, should not be viewed in isolation but must be considered in the context of the whole of the case being considered by the Court. I consider there is merit in counsel's submission that this view would appear to be what Nisbet DCJ had in mind when making the comment that he did in Jennings Constructions Ltd v McNulty (supra).  It should also be noted in that particular case that the appellant (who was formerly the defendant in the action) had contributed substantially to large periods of delay to the point where the learned Judge described the behaviour as "deliberate stalling tactics".  The appellant was unable to demonstrate any actual or direct prejudice as a result of the respondent's delay in prosecuting the action and relied solely on general non‑specific prejudice occasioned by the passage of time. 

16. Whilst it is necessary that one carefully apply the relevant test and principles of law, cited with approval in Lewandowski v Lovell (supra) it is the case that the discretion of the Court in this area should not be unduly fettered and a degree of flexibility needs to be demonstrated so that the facts of each individual case are examined and the case is determined on its own particular merits.  In determining whether a delay has been inordinate factors such as the length of any delay in question and the explanation proffered for such delay need to be considered; Ulowski v Miller [1968] SASR 277. As previously stated, one has to be mindful of any ensuing hardship occasioned to a plaintiff if an action is dismissed for want of prosecution, particularly if it means that they are therefore denied a remedy. Further, any prejudice to a defendant if the action proceeds despite the delay, should be considered in conjunction with the conduct of the defendant in the course of the litigation itself.

17. Relevant to the issue of delay the Full Court in this State have taken the view that there may well be circumstances where delay of itself might lead to an inference of serious prejudice; Jakovljevic v L B Doslov [2000] WASCA 131. When in the exercise of its discretion the Court is considering the weight that prejudice in the broad sense should be given, and in order to attempt to attain justice between the parties McHugh J noted in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 - 552;

    "The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods … .  First, as time goes by, relevant evidence is likely to be lost.  Secondly, it is oppressive, even cruel, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed.  Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them … .  Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong … ." 

1. Counsel for the plaintiff made it clear from the outset that the defendant relies solely upon the second limb as set out in Lewandowski v Lovell (supra) and there is no suggestion that any default on the part of the plaintiff has been intentional and contumelious or is default which could be described as conduct amounting to an abuse of process of the Court.  I accept this to be the basis of the defendant's application. 

2. As from August 1994 the plaintiff was aware that the defendant intended to defend the claim made against him.  Although in November of 1994 the plaintiff's application for orders that the defendant file and serve a defence was dismissed, the plaintiff does not seem to have acted expeditiously after that time relevant to filing a statement of claim.  It is the case that late in 1994 the defendant returned to the Maldives, but this is not a situation where the plaintiff or the plaintiff's solicitors did not know the whereabouts of the defendant.  In November of 1994 the defendant was in Adelaide for approximately one month and he informed the plaintiff's solicitors of this fact by letter.  The defendant also provided information relevant to a forwarding address where he could be contacted upon his return to the Maldives.  In a letter of 22 December 1994 the defendant gave an address for service in the Maldives and even went so far as to point out that mail delivery to the area could take some time. 

3. In 1995 upon making enquiries as to whether or not legal aid could be extended to her, the plaintiff, for reasons personal to herself and her family situation, decided to reject an offer of legal aid because the conditions upon which it was made were not acceptable to her.  This was a cause of further delay. 

4. Also in 1995 the plaintiff states that she received legal advice that it would be in her best interests to defer any action at that time because the defendant was serving a prison sentence and it was considered prudent to await further information with respect to the defendant to come to hand, such as the publication of the final report of the Royal Commission into the City of Wanneroo.  It seems as a result of the problems that befell the defendant at about this time the plaintiff considered that he was not in a position, even if the plaintiff's action against him were to succeed, to satisfy any judgment or award that might be made against the defendant.  It may well be that the plaintiff made a decision in November 1995, pursuant to legal advice, to defer proceeding with her action until further information came to hand, but I accept the submission made on behalf of counsel for the defendant that such a decision, even if based on sound practical reasoning, is not a justification for a failure by a plaintiff to proceed expeditiously in order to ensure that an action proceeds to trial promptly. 

5. In this case there is no suggestion on the material before me that the defendant at any time deliberately absented himself from the jurisdiction or made himself difficult to locate in order to frustrate the plaintiff's proceedings against the defendant.  Further, although there were media reports in May of 1996 indicating that the defendant had been released from jail at that time the plaintiff still did not pursue her action with any vigour.  This continued to be the case even after the Royal Commission report into the City of Wanneroo was published in September of 1997.  Although the defendant was not permitted to practise medicine in this jurisdiction for a period of two years between December 1996 and December 1998 it is not in my view a sufficient reason for the plaintiff not to have pursued the defendant with respect to a cause of action that allegedly accrued at a time when the defendant was licensed to practise medicine. 

6. Once again, on the material before me, there does not appear to be a cogent or reasonable explanation for why, during the period from January 1999 when the plaintiff instructed her current solicitors and February 2000, when the defendant was identified as practising medicine in Mandurah, that no concerted and concentrated action occurred to advance the plaintiff's claim against the defendant. 

7. Between late 1994 when the defendant filed a memorandum of appearance and was requested by the plaintiff to file a defence and early 1999 when the matter was "resurrected" there was, in my view, a delay that was so substantial in nature that it qualifies as being an inordinate delay. 

8. In considering whether that delay was inexcusable the defendant points to three periods of alleged delay by the plaintiff.  The first relates to a period between the time of alleged injury in early May 1989 and the filing of a writ by the plaintiff in early November 1992 (a period of approximately 3½ years).  It is the case that during this time the plaintiff was undergoing comparatively extensive medical treatment and it may be the case that she was a little unsure of what the outcome of that treatment would be. 

9. The next period of delay is said to be between early November 1992 after the issue of the writ and some 21 months later when it was served upon the defendant in mid‑August 1994.  It may be during this period that the plaintiff's solicitors had difficulty in locating the defendant but as previously noted the defendant would appear to have done nothing to avoid service of the writ or indeed to keep his location in any way secret. 

10. The next period of delay covers a period of approximately five years between August 1994 and some time in 1999.  It is clear that in 1995 the defendant was convicted to a term of imprisonment and he was released from jail in May of 1996, approximately six to seven months after the plaintiff had received legal advice to defer proceeding with further action until certain information became available.  As previously noted when the Royal Commission report was handed down in 1997 the plaintiff did nothing active to pursue the matter and even though the plaintiff became aware that the defendant had been re‑registered and permitted to practise medicine in this jurisdiction in late 1998 it was not until February 2000 that a notice of intention to proceed was filed and served on the defendant followed by a statement of claim being filed and served the following month.  This is a period of about 13 months and apart from the plaintiff changing solicitors yet again, there seems to be no other explanation, or no particular explanation, for this significant delay.  In all of the circumstances, particularly in view of the lack of cogent explanation for periods of what can only reasonably be described as significant delay, in my view not only is the delay by the plaintiff in this matter inordinate but it is also inexcusable.  When one examines the whole matter in context there seems to me to be no acceptable argument that the defendant has contributed to the delay in a significant or meaningful way. 

11. That is not the end of the matter, however, because even if such inordinate and inexcusable delay exists on the part of the plaintiff or her lawyers one must next decide whether or not such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or whether the delay is likely to cause, or have caused, serious prejudice to the defendant. 

12. In this case the defendant points to a number of areas where he says that should the matter proceed his position will be prejudiced.  Generally, as I understand the defendant's position, part of the prejudice relied on his concerns relevant to possible impairment of witnesses' recollections and in particular his concern that he must rely on his recollection of events which occurred in excess of 11 years ago.  I accept the submission on behalf of the defendant's counsel that the fading of potential witnesses' memories can be inferred from the primary facts disclosed by the pleadings or affidavit evidence; Brisbane South Regional Health Authority v Taylor (supra) at 551.  In any event, it is a matter of commonsense that after such a passage of time the recollections of various witnesses or potential witnesses will necessarily have suffered a degree of impairment relevant to certain matters.  It is also the case that although some materials exist, other relevant (and it may be even crucial notes and materials) have been destroyed or are no longer available.  The prejudice in this regard to the defendant is that he is, or will be, precluded from investigating in any detail the issue of any pre‑existing breast condition suffered by the plaintiff.  It may also be, depending on how the matter unfolds, that after this amount of time the defendant may be prejudiced in locating witnesses whom he may well wish to call at trial.  Even if those persons are located there remains the issue referred to earlier of faded or impaired memory of witnesses.  It is essential for the fair conduct of a trial that all parties have access to all available information so that they can properly prepare arguments:  Clough v Clough [1968] 1 All ER 1179; Bellengar v Watson (1980) 40 FLR 293.

13. The plaintiff argues that the defendant has not demonstrated that he will be prejudiced or have difficulty in obtaining expert opinion relevant to issues of medical practice which existed in 1989 with regard to the procedure carried out by the defendant upon the plaintiff.  From a practical perspective it may well be the case that asking or requiring an expert, even if they are willing to advance an opinion, to place themselves in a position as to what they would have thought about a procedure or considered appropriate as a procedure 11 or even 12 years ago now, is fraught with difficulty.  There is a risk, in my opinion, that any such evidence, if available, could be tainted by more recent medical advances in the area in question.  In this regard the plaintiff has had a considerable advantage because as previously noted she obtained comment or opinion as to the appropriateness and advisability of the procedure in question from Mr Fitzpatrick in June 1992, some 11 years ago.  This was approximately four years after her surgery.  His view was that the procedure utilised by the defendant was not only inappropriate but was not recommended from a responsible medical perspective. 

14. Having carefully considered and weighed the arguments advanced by both the plaintiff's counsel and the defendant's counsel on this appeal, I am of the view that in all of the circumstances not only has there been inordinate and inexcusable delay on the part of the plaintiff in this matter, but I am also persuaded that the delay which has occurred gives rise to a substantial risk that it is not possible to have a fair trial of the issues in this action.  As such, I consider that this is likely to cause serious prejudice to the defendant in the presentation of his case relevant to the plaintiff's action against him.  In reaching this conclusion I am mindful of the plaintiff's position and the fact that now regrettably her action is statute barred, so she is denied the opportunity to pursue a remedy.  As against that, however, this is a case which provides a clear illustration of the comment made by McHugh J in Brisbane South Regional Health Authority v Taylor (supra) at 551; "where there is delay, the whole quality of justice deteriorates". 

15. I therefore find that the plaintiff's appeal in this matter should be dismissed.