ATS v F S Kotai Pty Ltd, C J Broun Pty Ltd, Elizabeth Berkley Wysocki and Carol Elizabeth McGrath t/as Glen Forrest Medical Centre - [2020] WADC 115

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   ATS -v- F S KOTAI PTY LTD, C J BROUN PTY LTD, ELIZABETH BERKLEY WYSOCKI and CAROL ELIZABETH MCGRATH t/as GLEN FORREST MEDICAL CENTRE [2020] WADC 115
CORAM:   PRINCIPAL REGISTRAR MELVILLE
HEARD:   3 AUGUST 2020
DELIVERED          :   19 AUGUST 2020
FILE NO/S:   CIV 4668 of 2017
BETWEEN:   ATS
Plaintiff
AND
F S KOTAI PTY LTD, C J BROUN PTY LTD, ELIZABETH BERKLEY WYSOCKI and CAROL ELIZABETH MCGRATH t/as GLEN FORREST MEDICAL CENTRE
First Defendant
TONI CHRISTINE LAW
Second Defendant
GEETHANI PERERA GUNAWARDENA
Fourth Defendant
OLGA SERVICES PTY LTD t/as SWAN VIEW FAMILY PRACTICE
Third Defendant
HEALTH INTEGRA PTY LTD t/as GP SUPERCLINCI @ MIDLAND RAILWAY WORKSHOPS
Fifth Defendant
ATISH DINESH CHUDASAMA
Sixth Defendant

Catchwords:

Application to set aside dismissal for want of prosecution - Suppression orders

Legislation:

District Court Rules 2005 (WA), r 44 G, r 71
Rules of the Supreme Court 1971 (WA)

Result:

Dismissal of case set aside

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	Mr M Williams
Second Defendant	:	Mr M Williams
Fourth Defendant	:	Mr M Williams
Third Defendant	:	No appearance
Fifth Defendant	:	Mr M Williams
Sixth Defendant	:	Mr M Williams

Solicitors:

Plaintiff	:	Not applicable
First Defendant	:	Minter Ellison
Second Defendant	:	Minter Ellison
Fourth Defendant	:	Minter Ellison
Third Defendant	:	Not applicable
Fifth Defendant	:	Minter Ellison
Sixth Defendant	:	Minter Ellison

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

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Guillaume v City of Stirling [2020] WADC 41
Rowe v Stoltze [2013] WASCA 92
Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No2] [2017] WASCA 142
ZYX v JD [2019] WADC 164

PRINCIPAL REGISTRAR MELVILLE:

BACKGROUND

By a writ of summons issued 20 December 2017 the plaintiff through her then solicitors commenced proceedings against the defendants alleging negligence in the provision of medical services and, or in the alternative, breach of implied contractual terms to provide services with reasonable care.
On 27 November 2018 it was declared the plaintiff's solicitors had ceased to act on her behalf. On 11 December 2018 the plaintiff filed a notice she was acting in person and has continued to do so since that time.
The statement of claim filed 29 March 2019 avers that the alleged failure in 2012 by the first to fourth defendants to take reasonable care resulted in delay in diagnosing the plaintiff's cancer so worsening the outcome of treatment and the plaintiff's prognosis. The plaintiff also avers that the fifth and sixth defendants prescribed her medication in 2014 which caused her to suffer a series of life threatening embolisms, including bilateral pulmonary embolisms.
The statement of claim then pleads the plaintiff has and will endure pain and suffering, incur treatment and medical expenses and require paid and voluntary services. It concludes by stating particulars of loss and damage will be provided pursuant to the District Court Rules 2005 (WA) (DCR) r 45C(3).
On 3 April 2019 the court made orders relating to the filing of defences, requests for and the provision of further and better particulars of the statement of claim and discovery of documents, all of which were to have been complied with by 16 May 2019. It was ordered the action be entered for trial by 15 July 2019. Notwithstanding it had been ordered the case be entered for trial by 15 July 2019 a case management timetable issued stating that unless the case was entered for trial by 15 August 2019 the case would be placed on the Inactive Cases List.
On 17 April 2019 defences were filed along with a request for further and better particulars. At this point the action stalled and the case was not entered for trial as ordered or at all.
On 16 August 2019 a notice of default of entry for trial was issued to the plaintiff at her address for service. The notice stated the case would be placed on the Inactive Cases List if not entered for trial on or before 31 August 2019.
On 2 September 2019 a further notice issued to the plaintiff at her address for service stating the case had been placed on the Inactive Cases List and that if it remained on the Inactive Cases List for six continuous months would be taken to be dismissed for want of prosecution.
The case remained on the Inactive Cases List for six months and on 3 March 2020 a notice issued that the case had been dismissed.
The plaintiff has now brought an application by chamber summons filed 9 March 2020 seeking an order that the dismissal be set aside. The application is made pursuant to the DCR r 44G(5) which provides:
The Court may, in exceptional circumstances and on such terms as it thinks just, set aside the dismissal of a case under subrule (1).

Rule 44G

Rule 44G finds itself in pt 4 div 3 of the DCR, which part deals with case management. The purpose of these procedural rules is to have a case progress through the interlocutory stages to trial in accordance with the overarching objective to resolve disputes in a timely, efficient, just and economical way.[1]
[1] Rules of the Supreme Court1971 (WA) O 1 r 4A and r 4B.
The High Court in Aon Risk Services Australia Limited v Australian National University[2] observed:
In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
(footnotes omitted)
[2] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 [113].
The Western Australian Court of Appeal in Rowe v Stolze[3] has said:
As mentioned earlier, the procedural rules of court are no longer to be considered as concerned solely with the resolution of the dispute between the parties to a proceeding, but must also take into account the effects of delay in the administration of justice, the interests of other litigants waiting to have their cases heard, and the public interest in the cost-effective and efficient use of the scarce public resources of the court. The notion that a case which the plaintiff has manifested a lack of any interest or will to prosecute might simply lie dormant, hanging over the head of the defendant and clogging up the administration of the court indefinitely, is contrary to modern concepts of the proper and effective administration of justice.
[3] Rowe v Stoltze [2013] WASCA 92 [71].
To facilitate these objectives both the Rules of the Supreme Court 1971 (WA) and the DCR provide that certain steps are to be completed by a certain time. In the case of the DCR it is provided that a case must be entered for trial within 120 days after the date on which a defence is filed.[4] That time can be extended by order of the court where the circumstances warrant it.
[4] DCR r 37.
Rule 38 of the DCR provides that if the plaintiff does not enter the case for trial in accordance with r 37 the registry must send a notice of default (form 2) to the plaintiff. The form 2 advises that unless the plaintiff enters the action for trial on or before the date stated, the action will become inactive.
Rule 44D of the DCR provides that when a case becomes inactive the principal registrar must put the case on the Inactive Cases List and give all the parties to the case written notice that the case is on the Inactive Cases List and the effect of r 44E and r 44G.

The law as to exceptional circumstances

Once a case has been placed on the Inactive Cases List and remains there for six months it is dismissed for want of prosecution. This happens automatically and by operation of the law. It reflects a view that a plaintiff, having been given notice of being in default of the entry for trial milestone and having done nothing, then having been given notice that the case has been placed on the Inactive Cases List and would be dismissed if remained on the Inactive Cases List for six months and having done nothing, has manifested a lack of interest or will to prosecute.
That being said, r 44G contemplates the possibility this prima facie position is not the case and there may have been exceptional circumstances causing the case to come to be dismissed. In those circumstances the rule provides that the court may set aside the dismissal on such terms as it thinks just.
To arrive at this point then begs the question, what constitutes exceptional circumstances?
In this regard the Court of Appeal in Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2][5] in upholding the primary court's decision referred to the general principles applied by the primary court in determining whether there were exceptional circumstances, without criticism. The general principles that had been applied by the primary court were:
[5] Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2] [2017] WASCA 142 [26]; Guillaume v City of Stirling [2020] WADC 41 [70].
1. For circumstances to be 'exceptional' under r 44G(5) they must be out of the ordinary, unusual, special or uncommon. They do not need to be unique or unprecedented or very rare however they will not be exceptional if they are regularly, or routinely, or normally encountered.
2. The fact that the Inactive Cases List was introduced to further case management must be borne in mind. The wider interest of other litigants wanting to have cases heard and the public interest in the proper and efficient use of scarce public resources of the court must be taken into account.
3. The exceptional circumstances must be causally related to the dismissal of the action and it must be established that the circumstances which have led to the dismissal of the action are exceptional.
4. There is no particular circumstance that can be defined as exceptional. 'Exceptional circumstances' may relate to a single exceptional matter or to a combination of exceptional facts or a combination of ordinary facts that when taken together in combination may reasonably be regarded as amounting to exceptional circumstances. Each case must be determined on its own facts.¹
5. Rule 44G(5) is not remedial. It should be interpreted as giving the court a broad power to relieve against injustice.¹
6. Inattention or inadvertence by a solicitor may in some cases be considered an exceptional circumstance. However, r 44G(5) must be considered in the context of case management. Consistent with the principles of case management in r 38 and r 44A of the Rules, the onus is on the party (not the party's solicitors) to enter the action for trial and to file documents. For this reason case management directions and interlocutory orders are made against the party not against the party's lawyer.
7. Mere inadvertence or inattention by a solicitor would ordinarily not constitute an exceptional circumstance that would absolve a plaintiff from any personal responsibility to pursue the action.
8. Factors to be considered in the exercise of the discretion include:
(a) whether there has been any delay in bringing the application to set aside the dismissal and the reason for that delay;
(b) the merits of the plaintiff's case (there being no point in reinstating a case that has no merit);
(c) the prejudice to the plaintiff if the dismissal of the action is not set aside (including the expiry of any relevant limitation period); and
(c) the prejudice to the defendant if the dismissal of the action is set aside.
(footnotes omitted)
The reference to 'exceptional circumstances' regulates the manner in which the discretion is to be exercised. It is not to be interpreted as a two-step process whereby the existence of exceptional circumstances is a condition precedent to the existence of a discretion.[6]
[6] Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2] [75] - [76].

The evidence as to exceptional circumstances

The evidence in support of the application was constituted initially by the affidavit of the plaintiff sworn 9 March 2020.
However, when the application came before me on the 25 May 2020 the plaintiff sought to advise the court of further information not in the affidavit. The distinction between submissions that can be made from the bar table and evidence upon which the court makes its decision was explained to the plaintiff. As a result the application was adjourned to allow the plaintiff to place further evidence before the court by way of affidavit.
On 5 June 2020 the plaintiff filed a further affidavit.
In her affidavit of 9 March the plaintiff explained how initially she was represented by a firm of solicitors who had cease to act for her. She explained that she was unable to obtain her papers from those solicitors until late April 2019, which I observe was around the time that she would have been required to provide further and better particulars of the statement of claim and discovery.
The plaintiff went on to depose to attempts to obtain alternative legal representation, stating she had contacted 11 different firms and visited six of those firms, all to no avail. However, she provided no details as to when or over what period of time she made those queries and I cannot discern the last time she attempted to obtain legal representation.
The plaintiff also gave evidence of various medical conditions from which she was suffering, stating she was seeing a psychiatrist on a weekly basis and a clinical psychologist, Mr Christopher Semmens on a weekly basis. She gave evidence that she experiences chronic spinal pain, that she is constantly stressed and anxious over the risk of a recurrence of cancer and that she suffers from tiredness and a lack of energy.
The plaintiff annexed to her affidavit a report of Mr Semmens dated 11 October 2019. In his report he noted a number of health issues to which the plaintiff has referred to in her affidavit and concluded her symptoms remained 'debilitating with ongoing depressed mood'.He stated the plaintiff's cognitive functioning was impaired with diminished concentration and short term memory.
Mr Semmens concluded that the plaintiff would not be well enough to attend to any form of legal proceedings for at least the next three to six months and expressed a view the plaintiff was extremely at risk of relapse of her psychiatric symptomatology.
Counsel for the defendants objected to several statements made by the plaintiff in pars 2, 5 and 7 of her affidavit. He submitted the statements were inadmissible on the basis they were the plaintiff's unqualified opinion as to the medical causation of her alleged bilateral pulmonary embolism, the degree of risk of a further embolism and that on medical grounds she is unfit to attend to any form of legal proceedings.
In response to this Ms Smith submits those statements are not her opinion, but statements as to her experience. Whilst I accept the plaintiff cannot offer an opinion as to the medical causation of her conditions or degree of risk of recurrence I am prepared to consider those statements on the basis they are evidence as to the plaintiff's belief or state of mind which in turn has some relevance to the nature and extent of her psychiatric and/or psychological condition and therefore her capacity to progress her action as a self-represented litigant.
Other evidence found in the plaintiff's affidavit sworn 5 June 2020 which advances the matter is that as of 27 August 2019 on 3 September 2019 she was attending a medical practitioner in the United States of America who diagnosed a condition of Ehlers - Danlos Syndrome and that on 25 October 2019 she was referred by her general practitioner to King Edward Memorial Hospital Genetics Department in respect of that diagnosis. The plaintiff annexes the referral in which her general practitioner briefly summarises her medical history which is consistent with her affidavit evidence.
The defendants have criticised the plaintiff's evidence as being 'cursory and pregnant'. To some extent that is true. The essence of the plaintiff's story is that her failure in advancing the case is because she was unwell, was trying to find alternate legal representation and was attending medical reviews to address her health concerns, but her story is light on detail.
On the face of the courts record nothing much has happened on this file between April 2019 when the defences were filed and March 2020 when the case was dismissed for want of prosecution, a period of some 11 months. The plaintiff states that she has contacted 11 legal firms but does not say when she last contacted a legal firm and on one simple statistical exercise she has on average contacted a legal firm once per month which does not point to a burning desire to progress her case.
Her affidavit evidence also shows a referral to King Edward Memorial Hospital dated 25 October 2019 and a telephone attendance with a medical practitioner at that hospital on the 28 April 2020. The period between 25 October 2019 and 3 March 2020 when the case was dismissed for want of prosecution is completely unaddressed except insofar as the plaintiff refers to her weekly medical reviews with Mr Semmens and her psychiatrist.

The defendant's submissions

The defendant further submits that there are no exceptional circumstances. The defendant says there is no demonstrable link between the evidence presented by the plaintiff as to her health problems, her medical treatment and the medication she takes and the dismissal of the action. That is, there is no demonstrated causal connection.
The defendant submits that the evidence constituted by the report of Mr Semmens is inadmissible on the basis that he is not qualified to express an opinion as to the plaintiff's medical fitness to represent herself in the legal proceedings. It appears from the defendants' outline of submissions this is because Mr Seemens is not a medical practitioner.[7]
[7] Defendants' outline of submissions at par 22.
The defendant further submits that being self-represented is not an exceptional circumstance, that the court cannot assess the merits of the plaintiff's case and accordingly the court cannot find any prejudice to the plaintiff if the dismissal of the action is not set aside.
In my view a clinical psychologist (and in this regard there is no dispute that Mr Semmens is a clinical psychologist) has the expertise to be able to express an opinion as to whether a patient has any mental ailments and whether those ailments result in an inability to perform particular tasks or to effectively perform particular tasks. The DCR by r 47B includes in the definition of medical expert 'a person registered under the Health Practitioner Regulation National Law (Western Australia) in the health profession of psychology'.
Counsel for the defendants then pressed the point that in the circumstances Mr Semmens opinion should be given little if any weight. One of the factors to which counsel for the defendants referred was the plaintiff's capacity to file this application for an order setting aside the dismissal together with an affidavit in support which, he submitted, was inconsistent with Mr Semmens opinion contained in his report of 11 October 2019 that the plaintiff would not be well enough to attend to any form of legal proceedings for at least the next three to six months.
Whilst the plaintiff's capacity to bring her application expeditiously after it was dismissed attracts understandable attention and causes one to ask why if she could do it within days of the dismissal she could not do it before, I do not regard the plaintiff's ability to file the documentation support of application on 9 March 2020 to be inconsistent or significantly inconsistent with Mr Semmens' opinion. Mr Semmens' opinion was a prognostication as to the future, which is an exercise which can be fraught with uncertainty. Further, his opinion as to the time for which the plaintiff would be unfit to pursue her legal proceedings was equivocal, constituted by an estimate of three to six months. I do not consider the fact that the plaintiff demonstrated capacity to pursue her legal proceedings by the filing of the documentation some four months and three weeks after the date of Mr Semmens' opinion is inconsistent with an estimate of incapacity of three to six months. In my view it is reasonable to infer that the estimate of time is necessarily predicated on an expectation there will be a gradual improvement in the plaintiff's condition over the months and that the plaintiff's transition from a state of incapacity to pursue her litigation to having capacity to do so will not be like flicking a light switch.

Whilst on the evidence presented is difficult to form a clear picture of the merits of the plaintiff's case it cannot be said from a review of the pleadings, mindful that they have broadly expressed and require particularisation, that the claim is obviously weak or without merit.
Against that background it seems clear the plaintiff will be prejudiced if the dismissal is not set aside because should she wish to commence a fresh action it seems likely she will then face a limitation defence.
Similarly in my view the defendants will be prejudiced if the dismissal is set aside if only by reason of the passage of time and the effect it might have on the recollection of witnesses to the events. Further it is now in the region of six and eight years since the alleged acts of negligence and the defendants have had the stress of this litigation hanging over their heads since the writ was issued in December 2017. Apart from this there is no evidence of specific prejudice to the defendants.
I do agree with counsel for the defendants that the conditions of being self-represented or being of poor health are not in themselves extraordinary. Indeed much of this courts work involves a large number personal injury claims in which poor health is endemic.
However, as referred to in Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2] the answer to the question, are the circumstances exceptional, requires the case to be determined on its own facts and I must be mindful that a combination of ordinary facts taken together might be regarded as amounting to exceptional circumstances.

Conclusion

Rule 44G is a case management provision found in the case management part of the DCR and exists as the inevitable consequence of failing to apply for an order and obtaining an order that a case be removed from the Inactive Cases List under r 44F.
The primary purpose of these procedural rules is to 'secure the just and efficient determination of proceedings before the court, the efficient use of curial resources and the timely disposal of the court's business'.[8] It seems to me the effect of that statement is that the purpose of the rules is to weed out those cases that for whatever reason are not being progressed as a result of a lack of desire or commitment by the plaintiffs so incurring unjustified time and expense to the other parties and to the taxpayer funding the court. The primary purpose is not to guillotine by the use of timelines, meritorious litigation that a party genuinely wants to proceed but which has not proceeded due to exceptional circumstances.
[8] Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2] [75].
In this case the plaintiff commenced her action represented by solicitors who subsequent came off the record. She filed her own notice of acting and proceeded to file her own statement of claim before she had obtained the file from her former solicitors at the end of April 2019. At that point the action stalled.
Throughout this time the plaintiff has been plagued by ill health to the point she has not been fit enough to progress her litigation and has spent at least part of the time outside of the state undergoing investigation and/or treatment in the United States of America. It appears she was in the United States of America undergoing medical treatment on 27 August 2019, before her case was placed on the Inactive Cases List on 2 September 2019 and was in the United States of America to until at least 3 September 2020.[9] Her psychologist is of the view the plaintiff was unfit to progress her case between the 11 October 2019 and the date her case was dismissed for want of prosecution.
[9] Affidavit of the plaintiff sworn 5 June 2020, par 6.
The plaintiff's case is a medical negligence case and compared to some cases, such as a simple debt recovery, is not the easiest case to prepare and advance at the best of times. It can only be more daunting for someone who has health problems which cause impaired cognitive functioning, and diminished concentration and short-term memory. This no doubt explains, at least in part, the plaintiff's desire and efforts to obtain alternate legal representation.
In my view this combination of factors takes the case out of the ordinary into the unusual to the point of constituting exceptional circumstances, which circumstances have a causal connection with the case coming to be dismissed. Accordingly, I am of the view the dismissal should be set aside. However, it would be unfair on the defendants for a situation of prolonged inactivity to arise again and I consider terms as to the progress of the case should be imposed on the plaintiff.
At the conclusion of the hearing of this application the plaintiff applied for what she described as a suppression order. I understood the plaintiff proposed that the whole of the proceedings and documentation filed with the court in relation there to be suppressed, that is, not be disclosed to the public.
The basis of the application is that the evidence filed with the affidavits contain information that is embarrassing and that any reason for decision that may be published, such as these, may make reference to the evidence.
An alternative approach that was considered was whether the identity of the plaintiff might be suppressed by the use of a pseudonym in lieu of suppression of all information relating to the proceedings.
The question of suppression and the use of pseudonyms has relatively recently been addressed by this court in ZYX v JD.[10]In that case the court observed that the principle of open justice is a fundamental principle of law with its primary objective being to promote public confidence in respect for the administration of justice, the departure from which can only be justified where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament had modified the open justice rule.
[10] ZYX v JD [2019] WADC 164.
Examples of where this might apply include the protection of the identity of complainants under disability, victims of blackmail or police informers, or where the effect of disclosure would destroy the subject matter or the whole object of the action or where public policy considerations support suppression such as of the names of complainants in criminal proceedings involving sexual offences. In ZYX v JD the policy relating to the protection of the identity of the complainant in criminal proceedings was seen as a relevant consideration when it came to the question of suppressing the identity of a plaintiff alleging the commission of a sexual offence in civil proceedings.
The court also observed that generally adverse effects in the form of embarrassment and stress caused by publicity has in the past not been recognised as sufficient to justify a suppression order, particularly in criminal proceedings.[11]
[11] ZYX v JD [70] – [74].
The court went on to observe that the question of access to the court records was governed by r 71 of the DCR which provides, in circumstances which access is not prevented by some other written law or order including an order of a court, that a person is entitled by r 71(1A) to certain information including the identity of the parties to the case, the writ (and any statement of claim endorsed on it) and a judgment or order of the court.
Otherwise, the court may give leave to members of the public to inspect and/or take copies of any other part of the court record on being satisfied the applicant has sufficient cause and access to or possession of the record would be lawful. Rule 71(3) entitles a person to apply to the court for an order that prohibits or restricts access to alternate all or any part of the court record.
Accordingly, r 71 already provides some of the protection that the plaintiff seeks. In this case the defendants do not oppose an order for the anonymization of the name of the plaintiff. Having further regard to the considerations referred to ZYX v JD it is my view that justice is best served by suppressing the identity of the plaintiff with the use of a pseudonym.
I will hear the parties on the appropriateness of making orders in term of Annexure 5 to the Consolidated Practice Directions.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DH
Court Officer
19 AUGUST 2020