Arnold v Bradshaw - [2000] WADC 318

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ARNOLD -v- BRADSHAW [2000] WADC 318

CORAM: REGISTRAR KINGSLEY

HEARD: 19 OCTOBER 2000

DELIVERED : 8 DECEMBER 2000

FILE NO/S: CIV 6820 of 1992

BETWEEN: PHILOMENA JULIA ARNOLD
Plaintiff
AND
WAYNE WILLIAM BRADSHAW
Defendant

Catchwords:

Practice - Dismissal of action for want of prosecution

Legislation:

Nil

Result:

Action dismissed

Representation:

Counsel:

Plaintiff: Mr Zusman
Defendant: Ms McGrath

Solicitors:

Plaintiff: Bradford & Co
Defendant: Blake Dawson Waldron

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

Lewandowski v Lovell (1994) 11 WAR 124

Case(s) also cited:

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
Hughes v Gales (1995) 14 WAR 434
Jakovljevic v Doslov [2000] WASCA 131
Tipperary Developments Pty Ltd v KMG Hungerfords (A firm), unreported; SCt of WA; Library No 970390; 12 August 1997
Ulowski v Miller (1968) SASR 277

REGISTRAR KINGSLEY: On 19 October 2000 I heard the defendant's application that the plaintiff's action be dismissed for want of prosecution. I dismissed the application on that day and these are my reasons.
The defendant is a medical practitioner of some notoriety. The Writ with an endorsed claim was issued on 3 November 1992 concerning events alleged to have occurred in or about November 1988 and May 1989. In October 1993 the plaintiff brought a motion for an extension of the validity of the Writ and for leave to serve notice of the Writ out of the jurisdiction. In the affidavit supporting the application for an extension of time, and for leave to serve out of the jurisdiction, the deponent states that enquires made in September 1992 indicated the defendant was residing in Singapore. However all attempts to serve the defendant in Singapore proved unsuccessful and there was a belief that the defendant resided in Indonesia. Whilst the precise whereabouts of the defendant was unknown, there was an intention that a journalist travelling to Indonesia in or about November 1993 would serve the notice of the writ upon the defendant.
By letter dated 22 February 1994 from the defendant, care of Bandos Island Resort, Republic of Maldives, the defendant states that he intends to defend the matter and a memorandum of appearance is filed on 16 August 1994. By letter dated 22 December 1994 addressed to the plaintiff's solicitor the defendant advises that he would be out of Australia from 26 December 1994 and gives his residential address as Bandos Island Resort, Republic of Maldives.
The next event is a notice of change of solicitor dated 15 April 1999 and notice of intention to proceed dated 1 February 2000. The plaintiff then files a statement of claim dated 20 March 2000 to which there is a defence entered on 28 July 2000. The defendant then brings a chambers summons dated 24 July 2000 seeking that the action be dismissed for want of prosecution.
The plaintiff's cause of action as pleaded in the statement of claim arose during or about April 1989 when she attended upon the defendant at his rooms with a view to having liposuction on both hips. During that consultation the defendant recommended the plaintiff undergo liposuction to both hips and also an autologous fat transplant from her hips to augment her breasts. On 5 May 1999 the plaintiff attended the defendant's rooms where she underwent surgery in the form of liposuction and autologous fat transplant. This was performed under local anaesthetic. The plaintiff alleges that she suffered pain and injury in the form of breast infection, extensive fat necrosis in both breasts by reason of which she had to have bilateral sub-cutaneous mastectomy and prosthetic implantation in April 1992.
The defendants application is supported by an affidavit of Bradshaw sworn 27 July 2000. Bradshaw deposes that the issues in question relate to the information and advice provided to the plaintiff in relation to the procedure of breast augmentation by way of autologous fat injection following liposuction. The evidence will rely upon the recollection of both himself and the plaintiff and Bradshaw deposes that he is prejudiced in his defence because it depends on his capacity to accurately recollect events that occurred over 11 years ago. Bradshaw deposes that he sold his practice and did not retain any records. The medical practitioner to whom Bradshaw sold his practice has on-sold the practice and that no medical records relating to patients who underwent cosmetic surgery have been retained. Bradshaw deposes that he no longer has copy of any information sheet regarding of augmentation of breasts by way of autologous fat injection which extensively explained the procedure and risks involved.
In her affidavit in opposition the plaintiff annexes copies of hand outs relating to liposculpture sculpture and autologous fat grafting. The plaintiff also exhibits a photocopied handout dealing with liposuction. The plaintiff deposes that following advice in 1995, and the information that the defendant was in jail, she decided to defer proceeding until further information was obtained. As a result of various newspaper articles she determined to defer proceeding until January 1999, by which time it seemed the defendant was to return to practise in Western Australia and thereby earn a regular income.
Counsel Michael Zusman in an affidavit sworn 28 August 2000 deposes that during 1995 the plaintiff's former solicitor advised the plaintiff that she should defer proceeding against the defendant until further information appeared, and at least until the Kyle report was handed down. As will be recalled the defendant was the Mayor of the City of Wanneroo, and the City was the subject of a Royal Commission by Mr Kyle. The plaintiff instructed Messrs Bradford & Co in January 1999 and after receiving her file from her former solicitor in April 1999 made enquires to ascertain the whereabouts of the defendant. In January 2000 the plaintiff advised her solicitors that she was aware the defendant was practising in Mandurah.
The relevant principles concerning the exercise of the discretion to dismiss for want of prosecution are stated in Lewandowski v Lovell (1994) 11 WAR 124. Generally a court should dismiss an action for want of prosecution where it is satisfied that either:
(a)the default has been intentional and contumelious or,
(b)there has been an inexcusable delay on the part of the plaintiff and such delay has given rise to a substantial risk it will not be possible to have a fair trial of the issues or would be likely to cause serious prejudice to the defendant.
It is clear that the Court's discretion ought not be fettered by any absolute or inflexible rules, and that each case depends on its own circumstances. In considering the exercise of discretion the Court is entitled to take into account the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute barred, the prejudice to the defendant if the action is allowed to proceed not withstanding the delay, and the conduct of the defendant in the litigation.
There has been a very long delay in the part of the plaintiff of this action. Whilst some delay from 1992 to August 1994 maybe explained, thereafter there has been such a substantial delay that I have no hesitation in concluding the delay was inordinate.
The question then arises whether the delay is inexcusable. The defendant has broken the delay into three separate periods; the first between the time of injury to issue of Writ, the delay between issue of Writ and service on the defendant, and the delay between the entry of appearance by the defendant to the filing of the statement of claim in March 2000.
In November 1994 there was an application by the plaintiff to compel the defendant to file a defence. But at that time there was no statement of claim. In November 1995 the plaintiff received legal advice that she should defer proceeding until further information appeared, and at least until the Kyle report was handed down. The Kyle report was published in September 1997. In May 1996 the defendant had been released from jail. Notwithstanding this the plaintiff chose not to pursue her claims. Further in December 1998 the plaintiff was aware that the defendant had been re-registered with the Medical Board of Western Australia but it was not until January 2000 that inquiry was made with the Board as to where the defendant was practising. In all the circumstances I am of the opinion that the delay was not only inordinate but also inexcusable.
Has the delay given rise to the likelihood of serious prejudice to the defendant. For the defendant, the evidence suggests that the plaintiff suffered from pre-existing problems with her breasts including complaints of lumpy breasts in 1987. The problems with her breasts were not complained of until several years after the surgery. As the medical notes relating to the plaintiff's pre-existing condition and first complaints of breast problems have now been destroyed, it is the defendant's counsel submission that the defendant will be unable to fully investigate the plaintiff's pre-existing conditions and the impact those conditions may have had on the plaintiff's claims.
The allegations contained in the statement of claim raise issues as to the information and advice given to the plaintiff. The defendants defence will depend to some extent on his ability to recollect the events. The mitigating factor is that whilst the defendant says he is unable to obtain documentation he says he usually provides to patients, copies of those documents are available from the plaintiff. However the defendant is faced with the prospect of having to obtain expert evidence approximately 11 years after the event and upon issues upon which there are no longer contemporaneous medical notes or reports.
The authorities established the prejudice may be of varying kinds and is not confined to prejudice effecting the conduct of the trial. It is not helpful to define or categorise the type of prejudice justifying striking out of an action. In my opinion it would be extremely difficult for the defendant, or even the plaintiff, to put forward the necessary expert evidence to support or refute the claims. In my opinion this fact coupled with the length of time since the facts giving rise to the action occurred, must diminish the capacity of the defendant to fairly and properly defend the action. This in my opinion would justify a court in dismissing the action for want of prosecution.
It is common cause that any relevant limitation period has long expired and accordingly dismissal of the action would effectively bar the plaintiff from bringing fresh proceeding. Certainly in this case the dismissal of this action may well leave the plaintiff bereft of any remedy. Bearing in mind the circumstances already mentioned it is the prejudice to the defendant occasioned by the inordinate and inexcusable delay which is the justification for the dismissal of the action.
Some consideration needs to be given to the conduct of the defendant but apart from the fact that the defendant has resided on a remote island noted for tourism I am unable to identify any conduct of the defendant which might be a reason to prevent an audit for dismissal.
For all the circumstances I am of the opinion that the plaintiff's action ought to be dismissed for want of prosecution.