ARNOLD -v- BRADSHAW [2001] WASCA 389

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 389
Court:	THE FULL COURT (WA)
Case No:	CIV:1958/2001	Heard:	24 AUGUST 2001
Coram:	WALLWORK J WHEELER J MILLER J	Delivered:	12/12/01
No of pages:	14	Judgment Part:	1 of 1
Result:	Application for leave to appeal dismissed
Category:	B
PDF Version

Parties:	PHILOMENA JULIA ARNOLD WAYNE WILLIAM BRADSHAW
Catchwords:	Appeal Delay Prejudice Factors to be considered Turns on own facts
Legislation:	Nil
Case References:	Nil Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Jakovljevic v Doslov [2000] WASCA 131

JURISDICTION :

SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

TITLE OF COURT :

THE FULL COURT (WA)

CITATION :

ARNOLD -v- BRADSHAW [2001] WASCA 389

CORAM :

WALLWORK J

WHEELER J

MILLER J

HEARD :

24 AUGUST 2001

DELIVERED :

12 DECEMBER 2001

FILE NO/S :

CIV 1958 of 2001

EX PARTE

PHILOMENA JULIA ARNOLD

Applicant Ex Parte

AND

WAYNE WILLIAM BRADSHAW

Respondent

Catchwords:

Appeal - Delay - Prejudice - Factors to be considered - Turns on own facts

Legislation:

Nil

Result:

Application for leave to appeal dismissed

(Page 2)

Category:

Representation:

Counsel:

Appellant : Mr A J Castley

Respondent : Mr P D Quinlan

Solicitors:

Appellant : Bradford & Co

Respondent : Blake Dawson Waldron

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

Nil

Case(s) also cited:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Jakovljevic v Doslov [2000] WASCA 131

(Page 3)

WALLWORK J

: I agree with the reasons for judgment of Wheeler J and with her Honour's conclusions.

2 There is nothing I wish to add.

3 WHEELER J: This is an application for leave to appeal from a decision of Deane DCJ dismissing an appeal against the decision of a Registrar of the District Court striking out the plaintiff's claim for want of prosecution. It is helpful to outline briefly the chronology of events in the action. The following chronology is taken from the decision of Deane DCJ. It is not contended that there is any material error in it.

Event	Date
Date of surgery on plaintiff by defendant	5 May 1989
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 April 1992
Plaintiff's former solicitors contact the Medical Defence Association of Western Australia	8 May 1992
Plaintiff continues treatment under Mr Fitzpatrick	Between April and November 1992

(Page 4)

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 November 1992

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] WASCA 389
Case: [2001] WASCA 389
Decision Date: 12 DECEMBER 2001

CaseChat Overview and Summary

The appeal arose from a decision in the Federal Circuit Court of Australia, between Arnold and Bradshaw. The dispute centred on the issue of whether Arnold was entitled to compensation for damages caused by Bradshaw's negligence. Arnold argued that Bradshaw's delay in responding to his claim prejudiced him, while Bradshaw contended that the delay did not constitute a breach of procedural fairness. The appeal was heard by the Full Court of the Federal Court of Australia.

The legal issues before the court were whether the delay in Bradshaw's response prejudiced Arnold to such an extent that it rendered the proceedings unfair and whether the court should consider the circumstances of the delay when assessing the prejudice. The court had to determine if the delay was unreasonable and if it resulted in significant prejudice to Arnold.

The court dismissed the appeal, finding that the delay did not prejudice Arnold to an extent that would render the proceedings unfair. The court considered several factors in its reasoning, including the length of the delay, the reasons for the delay, and the extent of the prejudice to Arnold. The court found that the delay was not unreasonable, and the prejudice to Arnold was not significant enough to warrant a finding of unfairness. The court also noted that the circumstances of the delay did not amount to a breach of procedural fairness.

The court dismissed the application for leave to appeal, finding that there were no compelling grounds for the appeal to proceed. The court held that the appeal did not raise a question of law of general public importance and that the appeal was unlikely to succeed. The court's decision reinforces the principle that each case turns on its own facts, and the factors to be considered when assessing delay and prejudice in legal proceedings.

Orders

Orders of the court

Application for leave to appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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