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 [No 2]
[2020] WADC 155
•4 DECEMBER 2020
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 [No 2] [2020] WADC 155
CORAM: PRINCIPAL REGISTRAR MELVILLE
HEARD: 23 NOVEMBER 2020
DELIVERED : 4 DECEMBER 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
GEETHANI PERERA GUNAWARDENA
Fourth Defendant
TONI CHRISTINE LAW
Second Defendant
OLGA SERVICES PTY LTD t/as SWAN VIEW FAMILY PRACTICE
Third Defendant
HEALTH INTEGRA PTY LTD t/as GP SUPERCLINIC @ MIDLAND RAILWAY WORKSHOPS
Fifth Defendant
ATISH DINESH CHUDASAMA
Sixth Defendant
Catchwords:
Circumstances in which self‑executing orders should be made
Legislation:
Nil
Result:
The time for compliance with orders to file and serve further and better particulars be extended
Representation:
Counsel:
| Plaintiff | : | In person |
| First Defendant | : | Mr M Williams |
| Fourth Defendant | : | Mr M Williams |
| Second 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 |
| Fourth Defendant | : | Minter Ellison |
| Second 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
ATS v F S Kotai Pty Ltd [2020] WADC 115
Compagnie Financiere et Commercilae du Pacifique v Peruvian Guano Company (1882) 11 QBD 55
Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179
Mubarak v Kelly [2020] WADC 136
PRINCIPAL REGISTRAR MELVILLE:
The dispute
On 23 November 2020 this case came back before me for a directions hearing as a consequence of orders that had been made on 8 September 2020. Mr M Williams appeared for the first, second, fourth, fifth and sixth defendants, being those defendants who have entered an appearance. For ease of reference I will call them the 'defendants'.
The defendants, having given notice of their intention to do so, seek a self‑executing order to the effect that the plaintiff's action be dismissed if she continues to fail to comply with orders made 8 September 2020 that she file and serve answers or objections to the request for further and better particulars of the statement of claim and to file and serve her list of discoverable documents.
The plaintiff who is unrepresented opposed the application and sought an adjournment of the case. As I ascertain the basis of her opposition and application, it is that she needs more time in which to engage solicitors so as to be able to comply with the orders.
Background
It is necessary to consider some of the history of this case in order to understand the context in which these orders are sought, and opposition there to, and to better understand the issues.
The plaintiff commenced proceedings by writ issued 20 December 2017 by which she sought damages for personal injury allegedly caused by the negligence of the various defendants in 2012 and 2014. She commenced proceedings represented by solicitors but by the end of December 2018 was unrepresented.
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.
The plaintiff did not comply with those orders. Further, on 3 March 2020 her case was dismissed for want of prosecution after having been placed on the inactive cases list for six months.
On 3 August 2020 I ordered the dismissal be set aside, having found there were exceptional circumstances involved in the case having come to be dismissed. Those exceptional circumstances included the ill health of the plaintiff. The full reasons are found in the published decision.[1]
[1] ATS v F S Kotai Pty Ltd [2020] WADC 115.
Notwithstanding it was thought appropriate to set aside the dismissal, I was concerned with prejudice to the defendants and expressed the view it would be unfair on the defendants for a situation of prolonged inactivity to arise again. It was considered that terms as to the progress of the case should be imposed on the plaintiff.
On 8 September 2020, in her presence, the plaintiff was ordered to file and serve answers or objections to the defendants request for further and better particulars, to file and serve a list of discoverable documents, and to do so by 2 October 2020. The plaintiff was also ordered to file and serve particulars of damages by 13 November 2020. The matter was otherwise adjourned to a directions hearing on 23 November 2020. The plaintiff did not appeal the orders.
By facsimile dated 2 October 2020 the plaintiff wrote to the court seeking an extension of time and the vacation of the hearing. The court responded by way of a letter dated 6 October 2020 in which the plaintiff was advised the court could not act unilaterally and that if she sought to have time extended she must bring a chamber summons supported by an affidavit seeking the extension of time.
The plaintiff has previously been informed of the difference between making submissions on the one hand and evidence in support of application on the other. In any event, she has not acted in compliance with the advice of the court contained in its letter of 6 October 2020.
In a further letter dated 17 November 2020 the plaintiff declared that she had instructed new lawyers 'a few days ago' and wanted an adjournment of at least seven days from 17 November 2020 for them to assist her in this matter.
In an affidavit sworn 19 November 2020 the defendants' solicitor deposed to having heard the plaintiff advise the court on 17 November 2020 that she had instructed Cardillo Gray Partners, lawyers, to act on her behalf. He subsequently contacted that firm of solicitors who informed him this was not the case and that no decision could be made that Cardillo Gray would act until they had seen the papers, which were not likely to be received before at least 20 November 2020.
As of 23 November 2020 no notice of acting has been filed by that firm. The plaintiff, again from the bar table, sought to advise the court that she had been in contact with yet further solicitors and, as I understand what she had to say, had most recently spoken with a firm known as A&E Eates who appear to have told her to seek an adjournment until sometime in January 2021 so that they could consider the papers and decide whether they would accept instructions to act on the plaintiff's behalf.
The defendants' submissions
In his submissions counsel for the defendants confined the request for the self-executing order to the failure to comply with the order to provide answers or objections to the request for further and better particulars and to provide discovery. Whilst moving for orders requiring compliance within 14 days, counsel conceded, appropriately in my view, that if the order was to be made, it was open to the court to give the plaintiff a longer period for compliance.
The focus of the defendants' submissions is in respect of the delay in prosecuting this action and the prejudice to the defendants as a consequence. It is observed that:
1.the plaintiff is alleging circumstances of negligence that arose in 2012 and 2014, some six to eight years ago;
2.the writ issued nearly three years ago in December 2017, and some three to five years after the alleged circumstances of negligence;
3.orders were originally made on 3 April 2019 requiring the plaintiff to provide answers or objections to the request for further and better particulars and to provide discovery, some 18 months ago;
4.the case was placed on the inactive cases list on 2 September 2019, a little in excess of 14 months ago;
5.case was dismissed for want of prosecution on 3 March 2020, a little in excess of eight months ago;
6.the dismissal of the case was set aside on 3 August 2020, a little in excess of three months ago at which time the court expressed the view the plaintiff should be put on terms as to the progress of the action and expressed concerns about unfairness being occasioned to the defendants as a result of the delay; and
7.further orders were made on 8 September 2020 requiring the plaintiff to provide answers or objections to the request for further and better particulars and to provide discovery, in excess of two months ago.
The plaintiff's submissions
The plaintiff is self-represented and as such I must be mindful of difficulties she may have in articulating and presenting her case and may have to assume the burden or some of the burden in endeavouring to ascertain the plaintiff's rights which may be obfuscated by her own advocacy.
Whilst doing this I must also be careful not to descend into the arena and start advocating on behalf of the plaintiff the very cause I am required to decide. Any latitude that might be given to an unrepresented party must not deprive the other party of a fair hearing.[2]
[2] Mubarak v Kelly [2020] WADC 136 [6] - [9].
In this case, I understand the plaintiff wants more time to provide answers or objections to the request for further and better particulars and to provide discovery. The reasons for this I discern to be:
1.she needs a lawyer to provide her with assistance and go over voluminous documents in order to properly assess the case;
2.the time provided by the orders made 8 September 2020 was insufficient to enable her to engage lawyers;
3.she is in poor health and not fit to represent herself and has declined further since the hearing to set aside the dismissal;
4.she is disabled and by reason of her disability should be given equality before the law;
5.the defendants are not prejudiced by allowing her more time.[3]
[3] ts 79 - ts 82.
Need for a lawyer
The order made 8 September 2020 was that the plaintiff file and serve answers to or objections to the request for further and better particulars and file and serve a list of discoverable documents. She was not ordered to do so by solicitors. The order was that she do it.
In my view the requirement to provide answers or objections to the request for further and better particulars is not onerous. To paraphrase the request, it seeks:
•the date or dates upon which the defendants are alleged to have provided the pleaded medical services at the material relevant time;
•the date or dates of diagnosis of the pleaded left breast carcinoma and lumpectomy and the prescription of the medication Levien in 2014;
•the facts that the defendants are alleged to have known or ought to have known to justify conducting the pleaded 'triple test' and how the facts derived from the 'triple test' would have led to a diagnosis of left breast carcinoma;
•the facts that the defendants are alleged to have known that ought reasonably have made them aware that Levien was known to have a high risk of causing embolism in women of the plaintiff's age and in women with breast cancer or of a higher risk of developing breast cancer;
•the facts the defendants are alleged to have known that ought reasonably have made them aware the plaintiff had breast cancer or was at high risk of developing breast cancer.
Further and better particulars have the benefit of further narrowing the issues that call for determination where the pleadings of material facts are broadly stated and puts the defendants on proper notice of the case they have to meet and enables the defendants to take steps to properly defend themselves.
Effectively, a request for further and better particulars is a request directed to the usual questions that are asked when enquiring into something, namely what happened, when it happened, where it happened, who did it, how was it done and why was it done.
Objections might be taken to a request for particulars on the grounds that they are embarrassing in the sense that the request is ambiguous or otherwise incomprehensible, or that the request seeks irrelevant information, or that the request is oppressive in the sense the time and expense involved in trying to answer them unjustifiably exceeds the need for them.
If the request is unobjectionable the party answering the request should provide the answer to the best of their ability. Sometimes they will not have the information. Whether or not the answer is sufficient in the circumstances is an issue that can be addressed at a later time if the party receiving the answers wishes to press the point.
In this case the plaintiff alleges the defendants knew or ought to have known of certain things. It is reasonable to assume the plaintiff knows her reasons for making the allegations. Fundamentally all the defendants are doing is asking the plaintiff to explain, to the extent she can, why she alleges they knew or ought to have known of those things.
Whilst engaging a solicitor to assist in providing those answers might result in a cleaner, more professional set of answers, I do not see that legal advice is essential in order to comply with the order. Further, whether or not the plaintiff in fact obtains legal representation or advice is hypothetical. The request for further and better particulars has been outstanding for in excess of 18 months during which time the plaintiff appears to have made a number of unsuccessful attempts to obtain legal representation. I accept that for a large part of this time the plaintiff was in no condition to pursue her case and that this constituted part of the exceptional circumstances that resulted in the dismissal of her case being set aside. I do not count that against her but since 3 March 2020 when she brought her own application to set aside the judgment she has demonstrated capacity to pursue her claim. In this time, which is a period in excess of eight months she has not obtained legal representation.
Similarly, it is my view that the requirement to provide to the defendants a list of the documents she has, or once had, in her possession, custody or power that relate to the matters in issue in these proceedings is not onerous. It does not require a solicitor. If the plaintiff had a solicitor, the solicitor would require her to produce to him all the documents she regarded as relevant and to advise him of any other documents she once had she regarded as relevant but no longer had. Her solicitor would then draw up the list.
The documents that are relevant are those documents that relate to matters in issue and which may lead to a course of enquiry that would assist the other party's case or damage the discovering parties' case.[4]
[4] Compagnie Financiere et Commercilae du Pacifique v Peruvian Guano Company (1882) 11 QBD 55, 63.
The steps the plaintiff would need to take in order to comply with the request of her solicitor, are exactly the same steps she would need to take to comply with the order for discovery, the only difference being, having compiled her documents she would then need to write up the list rather than have the solicitor do so. The format of the list is as prescribed in Form 17 found in the Rules of the Supreme Court 1971 (WA) (RSC).
The plaintiff's poor health
The plaintiff submits another reason for being given more time to engage a lawyer and/or comply with the orders is that her poor health has declined, as I understand it since her application to set aside the dismissal of her case, resulting in an inability to represent herself.
In this regard I have no evidence of further decline and the submission does not appear to be consistent with the plaintiff's ability to articulate her objections to what was proposed when she appeared before me, her correspondence to the court which refers to proceedings in other courts, her statements from the bar table on 8 September 2020 in which she explained that her mother had recently died and in which she briefly described the subsequent demands on her time, and her statements from the bar table on 23 November 2020 in which she referred to her faxed communications to the court.[5]
[5] ts 57 and ts 78.
To be treated equally before the law
I understand the plaintiff to complain that she is being denied equality before the law and non-compliance with what she describes as the United Nation's Charter article 13 that she submits deals with equality, non-discrimination and access to justice, and article 16 which she says, deals with liberty and security of the person and freedom from exploitation.
In this regard the plaintiff appears to be submitting that she is being treated less favourably than people without disabilities, impairments or ill health. However, some of the health problems she cites have questionable relevance. For example, the plaintiff submits from the bar table that she has a spinal disability and post-traumatic stress disorder.[6] Why and how this explains why she has failed to comply with the order is not shown.
[6] ts 78.
In my view, when all is said and done the plaintiff's complaints in this regard boil down to the proposition that in circumstances where she has health problems, some of which are the very reason for bringing this litigation, the requirement she provide answers or objections to the request for further and better particulars and discovery demonstrates she is being treated differently to other litigants such that she is being denied access to justice.
In my opinion not only can I see no support for such a proposition, it seems to blithely ignore the fact that the dismissal of her case was set aside because her ill health at the time constituted exceptional circumstances. The plaintiff appears not to contemplate that the defendants, some of whom are facing allegations going back eight years and have had this litigation hanging over their heads for some two to three years might have a right to properly understand the nature of the case being brought against them.
No prejudice to the defendants
The plaintiff submits there is no prejudice to the defendant in providing an adjournment until perhaps sometimes in January 2021 to allow her to obtain legal representation so as to comply with the orders.
However, I have already found that the defendants are prejudiced by the delay in prosecuting this case. The High Court in Aon Risk Services Australia Ltd v Australian National University[7] has observed that the question of prejudice is not limited to the consideration simply as to the loss of evidence and impairment to recollections, but extends to the strain the litigation imposes upon litigants, and not simply individuals as litigants, but even employees and officers of corporations who may be crucial witnesses.[8]
[7] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27.
[8] Aon Risk Services Australia Limited v Australian National University [99] - [100].
Ongoing delay is only going to cause ongoing prejudice. That being said, a further delay of six to eight weeks is not likely to add significantly to the prejudice the defendants have suffered to date. The defendants do not produce any evidence of any particular or specific prejudice that they suffer as a result of the ongoing delay.
Circumstances in which a self-executing order is made
The circumstances in which self-executing orders might be made has been addressed by the Court of Appeal in Firmware Technologies Inc v Asia Platinum Group Ltd.[9] There the court said:
41.…
Devising and applying appropriate sanctions for non-compliance is one of the major problems which case managers face. An innocent party is entitled to expect that the Court will act to support the integrity of its processes where another party is in default. On the other hand, case management is a means to an end and not an end in itself. All processes and sanctions must be carried out and imposed in a way that will facilitate the achievement of justice.
42.The entry of judgment prior to trial without regard to the merits of a case is, generally speaking, the antithesis of justice. It follows that, at least generally speaking, a springing order which would have that consequence can only be justified where necessary to enable the court to fairly determine the substantive matter in dispute and as a last resort.
[9] Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179.
Conclusion
On 8 September 2020 the plaintiff was ordered to file and serve answers or objections to the request for further and better particulars and to provide discovery. This was against a background of significant delay in commencing proceedings, prosecuting proceedings and non‑compliance with an order previously made. A considerable part of that delay was brought about by a number of factors personal to the plaintiff including in particular poor health, which circumstances have been found to be exceptional. To that extent the plaintiff has been relieved of some of the consequences of the past delay, albeit that clearly must be of little comfort to the defendants.
The plaintiff's explanation for non-compliance with the order is that she needs legal representation to do so for a variety of reasons including ongoing poor health and the apparent complexities and challenges associated with doing so. I am not persuaded that the plaintiff's complaints of ill health, substantiated or unsubstantiated, justify her failure to comply with the order made 8 September 2020.
Nor am I persuaded that she will in fact obtain the legal representation she says she needs before she can comply with the order and in any event, for the reasons given above, I do not consider she requires it.
Further, I do considered the defendants continue to be prejudiced by the ongoing delay albeit any prejudice they would suffer in providing further indulgence to the plaintiff in this regard would be minimal.
Given what I perceive as being the plaintiff's misconceptions of her obligations and her misconception as to the difficulties she might encounter in complying with the order I do not regard her non‑compliance as contumelious or sufficiently contumelious for it to be said we have reached a stage of last resort.
In my view the best way to proceed is to give the plaintiff an extension of time in which to comply with the orders made on 8 September 2020. However, the plaintiff should be under no illusions as to the potential consequences of continued non-compliance.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LF
Court Officer4 DECEMBER 2020
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