Avsar v Fremantle Hospital - [2001] WADC 57

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: AVSAR -v- FREMANTLE HOSPITAL & ORS [2001] WADC 57

CORAM: MARTINO DCJ

HEARD: 21 FEBRUARY 2001

DELIVERED : Delivered Extemporaneously on 21 FEBRUARY 2001 typed from tape and edited by Trial Judge

FILE NO/S: CIV 3333 of 1996

BETWEEN: JENNIFER PATRICIA AVSAR
Plaintiff
AND
FREMANTLE HOSPITAL
ROBERT JOHN COWAN
GUARDIANSHIP AND ADMINISTRATION BOARD WA
DEPARTMENT OF LANDS AND ADMINISTRATION MIDLAND
COMMONWEALTH BANK, ADELAIDE STREET, FREMANTLE
MINISTER AND DIRECTOR GENERAL OF COMMUNITY SERVICES
Defendants

Catchwords:

Practice - Appeal - Application to extend time to appeal

Legislation:

Community Services Act 1972

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff:     In person
First-named Defendant       :     Ms C J Thatcher
Second-named Defendant    :     No appearance
Third-named Defendant      :     Ms C J Thatcher
Fourth-named Defendant     :     Ms C J Thatcher
Fifth-named Defendant       :     No appearance
Sixth-named Defendant      :     Ms C J Thatcher

Solicitors:

Plaintiff:     In person
First-named Defendant       :     State Crown Solicitor
Second-named Defendant    :     No appearance
Third-named Defendant      :     State Crown Solicitor
Fourth-named Defendant     :     State Crown Solicitor
Fifth-named Defendant       :     No appearance
Sixth-named Defendant      :     State Crown Solicitor

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

Gallo v Dawson (1990) 64 ALJR 458

Case(s) also cited:

Birkett v James [1978] AC 297
Bourke v Kecskes [1967] VR 894
Girando v Girando, unreported; FCt SCt of WA; Library No 970525; 14 October 1997
Lewandowski v Lovell (1994) 11 WAR 124
Raeside Pty Ltd v Jymcroe Valley Pty Ltd, unreported; FCt SCt of WA; Library No 7196; 18 July 1988
Stollznow v Calvert [1980] 2 NSWLR 749
Witten v Lombard Australia Ltd (1966) 88 WN (Pt 1) (NSW) 405

MARTINO DCJ: This is an application by the plaintiff for leave to appeal out of time against the decision of Deputy Registrar Hewitt delivered on 23 April 1997 in which he struck out the plaintiff's statement of claim and dismissed her action against the first, third, fourth, fifth and sixth named defendants. The plaintiff's application for leave to appeal out of time was filed on 2 June 2000. It came before his Honour Judge Muller on 12 June 2000. At that time the application was dismissed insofar as it applied to the first, third, fourth and fifth named defendants and so the application before me concerns only the sixth named defendants who are the Minister and Director General of Community Services.
The essence of the plaintiff's claim against the sixth named defendants is that in 1994 her mother was in poor physical and mental health, her mother was being poorly treated by her mother's husband, the second named defendant, and that the plaintiff told the sixth named defendants about it but the sixth named defendants' officers did nothing in response to her concern. The plaintiff seems to make a claim on her own behalf and on behalf of the estate of her late mother.
The sixth named defendants contend that neither the plaintiff on her own behalf nor the estate of the plaintiff's late mother have any valid legal claim against them and so they made the application to Deputy Registrar Hewitt which application was successful. On 28 April 1997 the plaintiff wrote to this Court giving notice to the court that she wished to appeal Deputy Registrar Hewitt's decision. That notice, while arguably not in accordance with the appropriate form, was nevertheless within the five day time limit provided by O 6 r 11 of the District Court Rules. On 23 May 1997 the plaintiff filed a notice of appeal against the decision of Deputy Registrar Hewitt and so as at that stage while there may have been some short period by which the plaintiff was out of time, it was clear that she had taken steps within time and the application might have been dealt with on that basis.
The matter came before his Honour Judge Viol on 13 June 1997. At that time the plaintiff was represented by a solicitor, Mr Pillay. Mr Pillay filed on that day a notice of his appointment as the plaintiff's solicitor. Mr Pillay appeared before Judge Viol and withdrew the application for leave to appeal against Deputy Registrar Hewitt's decision.
The next step of significance in the action is the plaintiff's application on 2 June 2000; that is, over three years after the date of Deputy Registrar Hewitt's decision. When the matter came before his Honour Judge Muller on 12 June 2000 his Honour adjourned the plaintiff's application against the sixth named defendants to a special appointment and he ordered that the plaintiff apply immediately for that special appointment. The plaintiff did not apply immediately, but on 21 November 2000 the Crown Solicitor's office wrote to this Court requesting that the special appointment be listed, and it was listed for hearing today.
The principles upon which I should consider the plaintiff's application are contained in the judgment of McHugh J in Gallo v Dawson (1990) 64 ALJR 458.
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extent time is given for the sole purpose of enabling the Court or Justice to do justice between the parties. … This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. …When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. … It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted."
In accordance with the principles set out in the judgment of McHugh J I must consider the history of the proceedings. I have given a short chronology of the relevant events. It is clear that the plaintiff's application is many years outside the five day period limited to appeal. It is also clear that although the plaintiff did file notice of appeal not too long after the decision of Deputy Registrar Hewitt, that application was withdrawn by a solicitor who was then acting for her.
The plaintiff has informed me that the solicitor was not acting in good faith. The solicitor is not here today and I am not able to make any finding as to that in this action. Another matter of significance is that no doubt in view of the lengthy time since the judgment of Deputy Registrar Hewitt, Judge Muller directed the plaintiff to apply immediately for that special appointment, but she did not do so but, as I say, the sixth named defendants' solicitors did so on 21 November 2000.
In that regard, the plaintiff says that she spoke to a firm of solicitors, another firm of solicitors, the firm of Corsers, soon after the hearing before Judge Muller on 12 June 2000. They informed her at some stage after that that they were unable to assist her and she was then overseas and there was little that she could do personally to pursue the matter. The plaintiff has also pointed to her own poor mental health in periods since the decision of Deputy Registrar Hewitt and for the need for her to take steps to take care of her son who has also been in poor health.
The position is therefore that there have been lengthy periods of delay and while the plaintiff may have reasons for not taking steps at all times, it does seem that, in view of the very long period, the plaintiff has not been keen to press on with this matter as fast as she might. Be that as it may, it seems to me that the most important factor in considering this application is the prospect of the plaintiff succeeding in the appeal if leave to appeal were granted.
Any appeal would be a hearing de novo; thus it would be a complete re‑hearing of the sixth named defendants' application to strike out the statement of claim and dismiss the action. So for that reason I am not concerned with one matter that the plaintiff has raised, namely that Deputy Registrar Hewitt should have granted her an adjournment because she was not well on 23 April 1997.
That does not seem to me to be significant because, even if the plaintiff was not able properly to present her case on 23 April 1997, that would not preclude her fully presenting the case on the hearing de novo of the application if leave to appeal were granted. The plaintiff alleges that the sixth named defendants failed to take steps to care for her mother in the circumstances which I have related. The sixth named defendants have filed an affidavit by an officer of the sixth named defendants who has deposed that the sixth named defendants have no power to do anything and that they endeavoured to contact the plaintiff but were unable to do so.
The plaintiff has pointed to s 10 of the Community Services Act 1972 which provides that the functions of the department are to do certain things, including promote individual and family welfare in the community. While that section does set out various functions of the department, it does not give it any powers in a case such as that of the plaintiff's mother. Section 14 gives the Director General of the department power to manage property of disadvantaged individuals in certain circumstances but s 15 provides that in the case of a person who is an adult it cannot act unless it has the consent in writing of that person.
Not only does it seem to me that the sixth named defendants had no power to do anything in the circumstances, other than to endeavour to contact the plaintiff to inform her of the position, the law does not, in the circumstances that I have related, give the sixth named defendants a duty of care, either to the plaintiff or her mother, owed by the sixth named defendants. For those reasons, I have concluded that the plaintiff's prospects of success on any appeal are extremely poor. For that reason, along with the lengthy periods of delay to which I referred, I have decided that I should dismiss this application.