Avsar v Westland Healthcare Limited
[2004] WADC 141
•9 JULY 2004
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: AVSAR -v- WESTLAND HEALTHCARE LIMITED [2004] WADC 141
CORAM: REGISTRAR KINGSLEY
HEARD: 17 JUNE 2004
DELIVERED : 9 JULY 2004
FILE NO/S: CIV 3175 of 1997
BETWEEN: JENNIFER PATRICIA AVSAR
Plaintiff
AND
WESTLAND HEALTHCARE LIMITED
Defendant
Catchwords:
Practice - Plaintiff application to amend writ and statement of claim - Defendant's application for judgment - Order and O16 Rules of the Supreme Court of Western Australia - Turns on own facts
Legislation:
Act Amendment (Action for Damages) Act 1986
Fatal Accidents Act 1959
Law Reform (Miscellaneous Provisions) Act 1941
Public Trustee Act 1941
Supreme Court Act 1935
Result:
Plaintiff's application dismissed
Defendant's application allowed as to Law Reform (Miscellaneous Provisions) Act 1941
Representation:
Counsel:
Plaintiff: In person
Defendant: Ms F C E Davis
Solicitors:
Plaintiff: Not applicable
Defendant: Phillips Fox
Case(s) referred to in judgment(s):
About Holdings Pty Ltd v Bellbird Enterprise Pty Ltd (1996) 17 WAR 309
Ammoun v Ammoun, unreported, SCt of WA (Brinsden J); Library No 4395; 8 February 1982
Blake v Midland Railway Company (1852) 18 QB 93
Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601
Finnegan v Cementation Co Ltd [1953] 1 QB 688
Hilton v Sutton Steam Laundry [1946] KB 65
Ingall v Moran [1944] KB 160
Public Trustee v Zoanetti (1945) 70 CLR 266
Case(s) also cited:
Nil
REGISTRAR KINGSLEY: Before me today are the plaintiff's application for Orders;
1.For leave to amend the writ of summons filed on 30 January 1997
2.The substituted statement of claim filed on 1 July 1999 without any prior application for leave to amend be null and void, and
3.Costs and the cause
The defendant has filed an application pursuant to O 16 Rules of the Supreme Court and in the alternative to strike out the plaintiff's statement of claim pursuant to O 20 r 19(1).
History
The plaintiff commenced her action in the Supreme Court in January 1997. The plaintiff sought damages arising from the death of her mother in February 1996 allegedly as a result of the negligence of the defendant. The claims in the writ of summons appear to be under the Fatal Accidents Act1959 ("F A Act") and the Law Reform (Miscellaneous Provisions) Act 1941("L R (M P) Act").
The defendant filed a memorandum of appearance in February 1997 and brought an application to strike out the plaintiff's statement of claim in February 1997. In March 1997 Registrar Johnston orders that the statement of claim be struck out and gives leave to the plaintiff within 21 days to file and serve a substituted statement of claim.
In April 1997 a firm of solicitors is appointed by the plaintiff and in May 1997, by consent order, the action is remitted from the Supreme Court to the District Court.
In October 1997 the defendant files a chamber summons to strike the plaintiff's action by reason of the plaintiff's failure to file and serve a substituted statement of claim. The Court orders that the plaintiff files a substituted statement of claim within 10 days or the action would be struck out. A substituted statement of claim dated 3 November 1997 is filed on behalf of the plaintiff.
Between December 1997 and June 1998 there are four summonses for directions in relation to pleadings. In July 1998 Taylor Smart, the solicitors then acting for the plaintiff, apply for removal from the record.
In August 1998 the defendant files a chamber summons applying to strike the plaintiff's statement of claim on the grounds that the plaintiff was not the executrix nor administratrix of the estate of the deceased, that the proceedings are scandalous, frivolous and/or vexatious, and that pursuant to O 16 the plaintiff's statement of claim be struck out as it does not disclose a reasonable cause of action. It is this application that is being dealt with now. The defendant's application was adjourned sine die in August 1998 as the plaintiff was absent from the jurisdiction. In November 1998 the defendant seeks to re‑list the strike out application, the application is re‑listed and the defendant files submissions in support of its application.
At the return date in January 1999 there is no appearance by the plaintiff and the defendant's application is adjourned until February 1999.
In February 1999 the defendant files a chamber summons for security for costs and in February 1999 the plaintiff advises that she is in Turkey. In February 1999 security for costs in the sum of $15,000 was ordered.
In June 1999 the plaintiff seeks the Court review its decision on the security for costs and in July 1999 files and serves a further substituted statement of claim.
In January 2000 the plaintiff files a notice of appeal against the orders for security for costs and an application for leave to appeal out of time. The plaintiff's application is heard by Judge Muller in June 2000, and dismissed.
In July 2000 the plaintiff proposes to the defendant's solicitors that the plaintiff pay the security for costs by monthly instalments of $200. In August 2000 the defendant advises that the plaintiff's proposal is unacceptable and files an application for dismissal of the action due to the plaintiff's failure to provide the security for costs and for want of prosecution. In October 2000 I grant the defendant's application and dismissed the plaintiff's action for want of prosecution.
In November 2000 the plaintiff files a notice of appeal against the decision dismissing the action. That appeal was heard in December 2001 and in January 2002 Judge Blaxell determined that it was within his discretion to find that the action ought not be struck out for failure to provide security for costs for want of prosecution. Judge Blaxell ordered the parties attend a mediation.
In August 2002 Registrar Wallace adjourned the matter to a mediation for hearing in September 2002. The mediation was eventually heard before Registrar Wallace in November 2003. The mediation was not successful and the action was adjourned to a listing conference on 9 February 2004.
In November 2003 the Supreme Court (Probate Division) grants the plaintiff limited administration for the purpose of continuing as plaintiff in these proceedings.
In February 2004 at a listing conference before me, I listed the matter for trial for five days commencing 31 May.
In April 2004 the plaintiff brought an application to amend the statement of claim and adjourn the trial dates. His Honour Judge Williams in April 2004 vacated the trial dates and adjourned the summons to amend the statement of claim to me.
At the first return in June 2004 I heard submissions from the plaintiff and from counsel for the defendant. It became apparent that issues relating to the amendment of the statement of claim and the striking out of the statement of claim, and O 16 application were inextricably bound up such that a hearing of both matters was warranted. The applications were adjourned to 17 June for hearing on all issues.
The amendment to the statement of claim
There have been a number of statements of claim filed in this action. There is the statement of claim lodged with the writ in the Supreme Court in January 1997, a substituted statement of claim in November 1997, a further substituted statement of claim in March 1999, and a further substituted statement of claim in July 1999. The defendants have filed a defence dated 14 June 2002 to the plaintiff's substituted statement of claim dated 1 July 1999.
Of the statements of claim only the statement of claim dated 3 November 1997 would appear to be pursuant to an order of court.
As a preliminary issue I ruled that pursuant to O 2 r 1 Rules of the Supreme Court the plaintiff's substituted statement of claim dated 1 July 1999 was validly filed. The basis of my ruling is that a failure to comply with the requirements of a rule does not nullify proceedings nor the steps in them.
The plaintiff has filed a Minute of Amended writ and amended statements of claim. I say statements of claim because the plaintiff seeks to file a separate statement of claim for each plaintiff. Paragraphs 1 to 18 of the Minute under the heading "Particular of Negligence", are the same paragraphs as those in the substituted statement of claim dated 3 November 1997. Paragraph 19 has some slight changes, as does the particular under the heading "Particular of Claim".
The significant amendments relate to the damages purportedly suffered by the plaintiff and her children. The amendments can be summarised as:
(a)a loss to the estate due to premature death;
(b)loss of plaintiff's future income, time spent in caring for the deceased and pursuing claims in Courts, plaintiffs loss of enjoyment of life and a claim for gratuitous services;
(c)a personal claim by Mrs Avsar for pain and suffering, loss of enjoyment of life, loss of earnings and a claim for expenses;
(d)a claim by Sean Avsar for pain and suffering, and loss of earnings on his part;
Law Reform (Miscellaneous Provisions) Act
A head of the plaintiff's claim is under the L R (M P) Act. The L R (M P) Act provides that a cause of action that vests in a deceased survives for the benefit of the estate. The proper plaintiff in an action under the L R (M P) Act is the estate, either the executor or the administrator of the estate.
The evidence reveals that the Public Trustee elected to administer the estate of the plaintiff's deceased mother pursuant to s 14(1) of the Public Trustee Act in July 1994. The plaintiff then contested the validity of the election and the election made by the Public Trustee was revoked by the Public Trustee in September 1996.
Letters of Administration were granted to the plaintiff in January 2000 for the sole purpose of Family Court proceedings commenced against the deceased's husband.
The plaintiff's evidence is that Letters of Administration were granted in November 2003 limited for the purpose of her acting as plaintiff in these proceedings.
Thus the plaintiff has commenced proceedings under the L R (M P) Act and then subsequently has obtained the Letters of Administration. In Ammoun v Ammoun, unreported, SCt of WA (Brinsden J); Library No 4395; 8 February 1982 the plaintiff was the widower of the deceased and had brought proceedings when no application for probate or for Letters of Administration had been made. The plaintiff had brought proceedings under the L R (M P) Act. After argument Brinsden J was of the opinion that the proceedings were not a nullity. No authorities were cited by Brinsden J. The decision of Brinsden J was on the basis of the provisions of O 2 r 1 Rules of the Supreme Court and the fact that the defendant had taken steps in the proceedings without raising the irregularity.
There is a long line of authorities on this issue and the case of Ingall v Moran [1944] KB 160 is a convenient starting point. In that case the plaintiff issued a writ under the L R (M P) Act (England) claiming to sue in a representative capacity as administrator of his son's estate. However, Letters of Administration were not taken out until two months after the date of the writ. Scott LJ at p 164 states that:
"as the writ was issued on 17 September 1942 and there was no grant until November, it follows necessarily, that at the time the writ issued the plaintiff had no shadow of title to his son's surviving chose of action in respect of which he purported to issue a writ, falsely (although no doubt quite innocently) alleging that he issued it as administrator."
Scott LJ went on to say that when the plaintiff got his title by the grant of administration he prima facie became entitled to sue, and then could have issued a new writ but that was all. An application by him to treat the original writ of 17 September as retrospectively valid from the date would have been refused by the Court, not only because it might prejudice existing rights of defence but because it would not be permissible under the Rules of the Supreme Court for the Judicature Acts.
Luxmore LJ at p 167 comments:
"It is, I think, well established that an executor can institute an action before probate of his testator's will is granted, and that, so long as probate is granted before the hearing of the action, the action is well constituted, although it may in some cases be stayed until the plaintiff has obtained his grant. The reason is plain. The executor derives his legal title to sue from his testator's will. The grant of probate before the hearing is necessary only because it is the only method recognized by the rules of court by which the executor can prove the fact that he is executor. … It is true that, when a grant of administration is made, the intestate's estate, including all choses in action, vests in the person to whom the grant is made, and the title thereto then relates back to the grant of the intestate's death, but there is no doubt that both at common law and in equity, in order to maintain an action the plaintiff must have a cause of action vested in him at the date of the issue of the writ."
In Hilton v Sutton Steam Laundry [1946] KB 65 the plaintiff who was the sole dependent of her deceased husband brought an action in an administrative capacity for damages under the F A Act in respect of her husband's death. The Court applied Ingall v Moran holding that the writ was a nullity and was not validated by the subsequent grant of administration. Lord Green MR after citing Ingall v Moran commented:
"The principles there laid down are applicable to this case it would mean that the original writ here was a nullity and could not be validated by anything that happened afterwards, either by the alleged new basis upon which the statement of claim was said to have been framed, or by the grant of letters of administration, or by any order of the court under any of the rules of court on the ground that it was a mere irregularity."
In Finnegan v Cementation Co Ltd [1953] 1 QB 688 the plaintiff obtained Letters of Administration in Southern Ireland only but sought to bring an action under the F A Act in England. The Court held that the action had been brought in a representative capacity which the plaintiff did not possess, and must be set-aside on the ground of incompetence.
Whilst any reasoning of Brinsden J must be accorded great respect, in my opinion the weight of authority compels me to conclude that the institution of the proceedings under the L R (M P) Act are a nullity and not an irregularity.
The only proper plaintiff is the estate, the executor or the administrator. The doctrine of relation back does not assist the plaintiff, because this action under the L R (M P) Act is a nullity at the outset. It is a nullity which cannot be waived by the Act of any party against whom it is taken About Holdings Pty Ltd v Bellbird Enterprise Pty Ltd (1996) 17 WAR 309.
The plaintiff argues that because of delay the defendant ought not be permitted leave to bring an application pursuant to O 16. The requirement that applications pursuant to O 16 be brought within 21 days of an appearance has been part of the Rules for some considerable time. Where an application is brought out of time it is essential that the defendant explains the delay. But a decision as to whether or not to grant an extension of time to bring an application is determined by looking at where the interests of justice lie. A crucial factor is the strength of the defendant's case. In this matter there is an affidavit sworn by Lucinda Gunn which sets out the history of this matter having been outlined above that history gives explanation for delay. I am satisfied that the delay has been explained and having regard to the strength of the defendant's case in my opinion, I am prepared to grant leave to bring the O 16 application out of time.
That being the case, I would order that the plaintiff's claim pursuant to the L R (M R) Act be struck, as that proceeding is a nullity.
Fatal Accidents Act Claim
Under the F A Act the action is for loss of dependency. Only pecuniary loss to the family resulting from the deceased's death is recoverable. There is no claim for damages for grief suffered by relatives. The Australian Courts have been compelled to follow the view which prevailed after Blake v Midland Railway Company (1852) 18 QB 93 that damages may not include anything by way of consolation to the dependents for grief and suffering; that their assessment is as Lord Wright said in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 "a hard matter of pounds, shillings and pence". The rule is that "in ascertaining the pecuniary loss resulting from [a person's] death there must be taken into consideration, on the one side, the reasonable expectations of benefit upon which the claimant would have been entitled to rely, had his life not been brought to an end, and, on the other side, the pecuniary benefits, arising on his death, to which the claimant had a reasonable expectation, whether as of right or otherwise." (Public Trustee v Zoanetti (1945) 70 CLR 266 Dixon J at 276.)
The minute of amended statement of claim seeks to bring a claim for the plaintiff and for her children Sean Avsar, Selim Avsar, Yasmin Avsar and Yusuf Avsar, whom for the sake of convenience I will call the other plaintiffs. The other plaintiffs' claim could be primarily categorised as claims for mental anguish, depression and emotional trauma. In relation to Sean Avsar, there is a claim for loss of earnings and loss of future earnings in relation to an export meat business.
The other plaintiffs' claims appear to be brought under the F A Act, the L R (M P) Act and the Acts Amendment (Action for Damages) Act 1986. The Acts Amendment (Action for Damages) Act made certain amendments to the L R (M P) Act and the Supreme Court Act. However, in my opinion the Acts Amendment (Action for Damages) Act did not establish any new or different cause of action and accordingly, any claim to bring the other plaintiffs into the proceedings based on this heading is misconceived.
In my opinion the claim under the F A Act is only referable to the pecuniary loss to the family resulting from the deceased's death. The pecuniary loss is the loss of the financial benefit being provided by the deceased to the family members. The loss is calculated by reference to the reasonable expectation of pecuniary benefit from the continuation of the deceased's life, that is damages for the loss of earnings in the "lost years". Accordingly, any economic claim beyond that narrow compass ought to be disallowed.
The authorities are clear that under the F A Act there can be no claim for damages for grief suffered by the relatives. Accordingly, heads of damage under this heading claimed by the plaintiff for herself and the other plaintiffs must be disallowed.
Abandonment of claim
The plaintiff's endorsed writ of summon and statement of claim dated 30 January 1997 pleads claims on behalf of herself and the other plaintiffs – the children. That statement of claim is substituted by a statement of claim dated 3 November 1997. There is a further substituted statement of claim dated 1 July 1999, which notwithstanding irregularities, I have ruled to have been validly filed. That statement of claim has been pleaded to.
The 30 January 1997 statement of claim pleads claims under the F A Act and L R (M P) Act on behalf of the plaintiff and other plaintiffs.
The substituted statement of claim dated 3 November 1997 pleads a claim on the part of the plaintiff as the only child of the deceased pursuant to the F A Act. There is also a claim on behalf of the estate pursuant to the L R (M P) Act.
The substituted statement of claim follows; at least to par 19, the substituted statement of claim dated 3 November 1997. Paragraph 19 pleads the action is brought for the plaintiff's benefit as the only child of the deceased, and, after probate is granted, brings on action for the benefit of the relatives of the deceased. The prayer for relief, in relation to the claim made under L R (M P) Act seeks damages on behalf of the estate of the deceased.
The plaintiff, in my opinion, has abandoned the claims for the other plaintiffs made in the statement of claim dated 30 January 1997. The plaintiff now seeks to re-introduce those claims. The defendant is entitled to assume that the claims have in fact been abandoned, and the plaintiff ought not, in fairness seek to re-introduce those claims.
Conclusion
For these reasons I am of the opinion that any claim the plaintiff has under the L R (M P) Act must be struck and cannot be revived through any amended pleading.
In relation to the claims under the F A Act I am of the opinion that the amendments under this heading ought not be allowed. The claims of the other plaintiffs do not arise under the Act.
The pleading in its present form is not one that can be allowed and is struck in its entirety.
I give leave to the plaintiff to file and serve a fresh statement of claim, however the statement of claim is to be confined to the claim under the F A Act.
I will hear Mrs Avsar and counsel for the defendant on the issue of costs.
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