Avsar v Westland Healthcare Limited

[2002] WADC 10

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   AVSAR -v- WESTLAND HEALTHCARE LIMITED [2002] WADC 10

CORAM:   BLAXELL DCJ

HEARD:   29 OCTOBER, 29 NOVEMBER, 6 DECEMBER 2001

DELIVERED          :   25 JANUARY 2002

FILE NO/S:   CIV 3175 of 1997

BETWEEN:   JENNIFER PATRICIA AVSAR

Plaintiff

AND

WESTLAND HEALTHCARE LIMITED
Defendant

Catchwords:

Practice and procedure - Appeal from decision dismissing action for want of prosecution - Plaintiff's failure to comply with order for security for costs - Irregularity in order as extracted - Part payment of security by way of instalments - Whether appropriate to dismiss action in all of these circumstances

Legislation:

Fatal Accidents Act 1959

Law Reform Miscellaneous Provisions) Act 1941

Result:

Appeal upheld

Representation:

Counsel:

Plaintiff:     Mr V G De Alwis

Defendant:     Ms F C E Davis

Solicitors:

Plaintiff:     De Alwis & Associates

Defendant:     Phillips Fox

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

Birkett v James (1978) AC 297

Dallas Development Corp Pty Ltd v West Australian Land Authority [2000] WASCA 49

Dzienciol v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998

Hazart v Rademaker (1993) 11 WAR 26

Lewandowski v Lovell (1994) 11 WAR 124

Ulowski v Miller (1968) SASR 277

Case(s) also cited:

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

Hughes v Gales (1995) 14 WAR 434

Southern Cross Exploration N/L v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491

1. BLAXELL DCJ:  This is an appeal from the decision of a Registrar of this Court made on 25 October 2000 dismissing the plaintiff's action for want of prosecution.  That order was made as a result of the plaintiff's failure to furnish security for costs in accordance with an order previously made by the Court on 25 February 1999.  The history of the proceedings is somewhat complex, and it is appropriate that I outline this prior to dealing with the merits of the appeal. 

The nature of the plaintiff's claim

1. The plaintiff is the only child of the late Antoinette Marie Cowan who died on 16 February 1996.  Between 21 and 28 September 1995 the plaintiff's mother had been in the care of the defendant while a resident at the Applecross Nursing Home.  The plaintiff claims that her mother's death resulted from the negligence of the defendant in the course of that care. 

2. In this regard, the plaintiff's mother was at the material time an invalid suffering from dementia and diabetes.  She required medication in the form of a daily prescribed dosage of insulin to be administered in the early mornings.  The statement of claim asserts that on 28 September 1995 staff members of the defendant negligently administered double the required dosage (in the form of two separate doses of insulin at 7.30 am and 8.10 am respectively).  As a result of this overdose the plaintiff's mother became hypoglycaemic and required emergency admission to Fremantle Hospital. 

3. It is further pleaded that on 9 October 1995 the plaintiff's mother suffered a hypoglycaemic coma, and when discharged from Fremantle Hospital on 16 October 1995 she was incoherent, unable to walk without assistance, unable or unwilling to eat, and suffering from necrotic sores on her feet. 

4. Thereafter the plaintiff took over the care of her mother.  The mother resided in the plaintiff's home in South Australia and from 19 October 1995 until the date of her death on 16 February 1996 required the full‑time assistance of the plaintiff. 

5. The statement of claim pleads separate causes of action under the Fatal Accidents Act 1959 as amended and the Law Reform (Miscellaneous Provisions)Act 1941 as amended.  The plaintiff brings the first of those actions for her own benefit as the only child of the deceased.  The statement of claim does not plead in what capacity the plaintiff brings the second action.  The various heads of damages claimed fall into the following categories: 

   -Loss of financial support that the plaintiff claims to have received from the deceased. 

   -Reimbursement for loss of income resulting from the plaintiff being unable to work while caring for the deceased. 

   -Funeral expenses. 

   -Additional costs incurred by the plaintiff arising from the care of the deceased prior to her death and including travel costs, medical expenses, and costs of furniture, equipment and home modifications. 

The history of the proceedings to date

1. The present action was commenced by the plaintiff in the Supreme Court on 30 January 1997.  As she was acting in person, it is perhaps understandable that the statement of claim endorsed on the writ was not properly pleaded, was more in the nature of a proof of evidence, and was some 55 pages long. 

2. After filing a memorandum of appearance, the defendant applied to strike out the plaintiff's statement of claim on grounds (inter alia) that it did not disclose a reasonable cause of action and was embarrassing.  This resulted in an order by the Acting Principal Registrar of the Supreme Court on 20 March 1997 that the statement of claim be struck out.  At the same time the plaintiff was granted liberty to file a substituted statement of claim. 

3. On 14 April 1997 Messrs Taylor Smart filed notice that they were appointed to act as solicitors for the plaintiff.  They prepared a substituted statement of claim which was filed on 3 November 1997.  In the meantime, the Supreme Court had by a consent order made on 6 May 1997 remitted the action to the District Court. 

4. On 19 June 1998 Messrs Taylor Smart applied for an order that they cease to act for the plaintiff.  The affidavit in support of this application asserted that there had been difficulty in obtaining instructions, that fees were outstanding, and that the plaintiff was unwilling to accept Messrs Taylor Smart's advice as to the extent of her entitlements.  An order that the solicitors cease to act was made on 8 July 1998. 

5. Thereafter the plaintiff again represented herself in the proceedings but initially did not provide a local address for service.  Furthermore on 9 September 1998 she wrote to the Court advising that she had departed South Australia and was residing with her husband overseas in Turkey.  By then the defendant had applied to strike out the substituted statement of claim on the ground that the plaintiff was not executrix or administrator of her mother's estate and had no standing to bring her various claims.  That application was adjourned sine die on 28 August 1998 and does not appear to have ever been relisted. 

6. On 9 February 1999 the defendant applied for an order for security for costs against the plaintiff on the grounds that she was ordinarily resident out of the jurisdiction, and was in default in payment of orders for costs made against her in proceedings she had previously commenced against Fremantle Hospital and others.  The security sought was payment into Court of $30,000 within seven days.  However on 25 February 1999 a Deputy Registrar ordered that there be only $15,000 security and that there be no time limited for payment.  The Deputy Registrar also ordered that pending payment of the security the proceedings were to be stayed, but that such stay was not to operate so as "to prevent the defendant from bringing an application to strike out the action due to the deficiencies in the (plaintiff's) cause of action or failure to provide a proper address for service". 

7. Following the hearing on 25 February 1999 the defendant's solicitors lodged a draft formal order which unfortunately did not reflect the orders actually made.  It did not contain the Deputy Registrar's specific proviso to the order staying proceedings, and (more significantly) erroneously stated that the sum of $15,000 security was to be paid "within seven days from the date of this order".  For reasons which are unclear but which necessarily involve negligence on the part of the Court, that order was settled and entered in the wrong form and in accordance with the draft. 

8. The defendant then took steps towards serving the order for security of costs on the plaintiff in Turkey.  However, it would seem that the order was not in fact served until some date in June 1999, by which time it was obviously too late for the plaintiff to comply with its terms (as extracted). 

9. On 1 July 1999 the plaintiff filed a further "substituted statement of claim" without any prior application for leave to amend.  This version of the pleading purported to add further particulars of alleged negligence, claims on behalf of the plaintiff's husband and children, and a claim for loss of a $75,000 benefit under an insurance policy due to the defendant's "(failure) to disclose the fatal accident to the plaintiff and her family". 

10. On 5 January 2000 the plaintiff also applied for leave to appeal out of time against the order for security for costs.  This application ultimately came on for hearing before Muller DCJ on 16 June 2000.  A little more than a week beforehand (on 7 June 2000) Messrs Stephen Browne lawyers had filed a notice that they had commenced to act for the plaintiff, and on 16 June the solicitor appearing on the plaintiff's behalf applied for an adjournment on the grounds that she had been unable to obtain full instructions.  Muller DCJ refused this adjournment and dismissed the plaintiff's application without having to consider the issues on their merits.  It would also seem that Muller DCJ and the solicitors for the parties all mistakenly believed that the order appealed from had been made in the form as extracted. 

11. On 22 August 2000 the defendant applied to dismiss the action "due to the failure of the plaintiff to furnish security for costs … and for want of prosecution of the action by the plaintiff".  In the meantime the plaintiff had (on 12 July 2000) commenced making payments into Court of $200 per fortnight, which she claimed was all that she was able to afford towards meeting her obligation to furnish security. 

12. On 25 October 2000 the defendant's application came on for hearing, and a Registrar ordered that the action be dismissed "for want of prosecution".  Although on its face this order appears to be inconsistent with the fact that proceedings had been stayed since 25 February 1999, the Registrar's reasons for decision indicate that dismissal was in fact ordered because of the plaintiff's failure to furnish security.  In this regard the Registrar noted that if the plaintiff was to continue making payments into Court at a rate of only $200 per fortnight, another 2½ years would elapse before the order for security for costs would be fully discharged.  The Registrar considered that the prejudice which would result to the defendant from this further delay outweighed "any benefits to the continuation of this action". 

13. On 1 November 2000 the plaintiff filed a notice of appeal from the order dismissing her action (and it is this appeal which has come on for hearing before myself).  Subsequently the matter has been complicated by Stephen Browne Lawyers obtaining an order (on 24 January 2001) that they cease to act for the plaintiff, there being various amendments to the notice of appeal, and by delays in having the appeal brought on for hearing and dealt with.  Furthermore as from 23 November 2001 a new solicitor, Mr Viji De Alwis has acted for the plaintiff. 

The principles that apply to the present appeal

1. As the Registrar's decision was made in the exercise of delegated jurisdiction, the appeal involves a complete review de novo.  The evidence that I must take into account is not only that which was before the Registrar, but also such further evidence as has been tendered before me and which has not been excluded on the basis of irrelevance or because it would be unjust or unfair to admit the same (Hazart v Rademaker (1993) 11 WAR 26). The defendant has in fact objected to much of the material in the further affidavits from the plaintiff. However, given the voluminous nature of these affidavits, it has been agreed that I need not rule on the objection, but will simply exclude from consideration any of the materials that in my view are irrelevant.

2. The defendant's application the subject of the appeal seeks to dismiss the action because of the plaintiff's failure to furnish security "and for want of prosecution".  However, as the plaintiff has been prevented from prosecuting the action since February 1999, the merits of the application must largely turn upon the failure to pay security.  In this regard the Court has an inherent power to dismiss an action in circumstances where an order for security for costs has not been complied with, the time limit has expired, and there is no prospect of the security being lodged.  The considerations that apply are similar to those involved in an application to dismiss an action for want of prosecution (Dallas Development Corp Pty Ltd v West Australian Land Authority [2000] WASCA 49).

3. When determining whether to dismiss an action for failure to furnish security or for want of prosecution, the Court exercises a wide discretion which is unfettered by any absolute or inflexible rules (Ulowski v Miller (1968) SASR 277, 280). The five paramount matters to be taken into account by the Court are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed, the prejudice to the defendant if the action is allowed to proceed, and the conduct of the defendant in the litigation (Lewandowski v Lovell (1994) 11 WAR 124 applying the decision in Ulowski (ibid). 

4. In cases where the application to dismiss is based upon prolonged delay by the plaintiff, it has been held that: 

   "…  The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, eg, disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants … ."  ( Diplock LJ in Birkett v James (1978) AC 297)

5. It follows that mere delay, without more, will usually be insufficient to justify dismissal of an action for want of prosecution.  However, there will always be circumstances where delay of itself might give rise to an inference that there is serious prejudice to a defendant (Dzienciol v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998). 

The merits of the appeal

1. Applying these principles to the present matter it is self‑evident that there has been a very lengthy delay by the plaintiff in making payment of the $15,000 security for costs ordered on 25 February 1999.  However in light of the materials before me, I am not satisfied that this delay has been intentional or contumelious.  Furthermore, I largely accept the plaintiff's explanations as to the reasons for that delay.

2. In particular, I accept that a major reason for the delay up until June 2000 was that the plaintiff believed she was subject to an order which it was impossible for her to comply with.  In this regard she had been served with an order in June 1999 which had required her to make payment of $15,000 security within seven days of 25 February 1999.

3. Subsequently, the plaintiff made payment of instalments, and as to this her evidence is that when her appeal from the order for security was dismissed on 16 June 2000:

   "His Honour Judge (Muller) ordered me to pay the security for costs.  I immediately commenced to comply with Judge (Muller's) order to pay security…I had no choice but to comply with Judge (Muller's) order to the best of my ability, even though I was never made aware of the fact that the order as served, was not the correct order of the Court, the defendant claimed to have extracted."  (Paragraph 3 of affidavit sworn 12 November 2001).

4. From my reading of the transcript of the hearing on 16 June 2000 I am unable to understand how the plaintiff came to be under the impression that Judge Muller had ordered her to pay the security.  Nevertheless, it is self‑evident from the fact that the plaintiff then commenced to make fortnightly payments into court that she must have been under that impression.  It may also be relevant that at that time the plaintiff was still resident in Turkey.

5. I further accept that all material times the plaintiff was impecunious and that such payments as she did make were all that she could afford within her means.  Obviously, once the order dismissing the action was made on 25 October 2000 it was no longer possible for the plaintiff to make further payments towards satisfaction of the previously ordered security.  It follows in my view that the plaintiff has put forward reasonable explanations for failing to furnish security, and that her default cannot be regarded as "inexcusable". 

6. However, as at the present date, I should have regard not only to the delay up until 25 October 2000 in furnishing security, but also to the subsequent delay by the plaintiff in prosecuting the appeal.  In this regard I note the contents of the plaintiff's affidavit sworn on 12 November 2001 which set out her personal circumstances since coming to Western Australia on 7 January 2001, and which in my view partially explain her delay in prosecuting this appeal.

7. A further factor which I must take into account is the prospective prejudice to the defendant if the appeal is to be allowed. A period of more than six years has elapsed since the alleged negligence of the defendant and it can be expected that the memories of witnesses as to relevant events will be affected. Nevertheless, the issue as to whether the plaintiff's mother was given a double dose of insulin involves a fairly limited factual enquiry. Furthermore, the fact that the mother was immediately admitted to Fremantle Hospital should mean that detailed records are available which set out her condition at the material time and the circumstances surrounding her admission. It follows that the potential prejudice to the defendant is not as great as it might otherwise have been. It is also relevant to note that at least some of the plaintiff's claims are not yet statute barred. (See s 7 Fatal Accidents Act 1959).

8. A further factor to be considered is the extent of any hardship to the plaintiff if her action is dismissed.  In this regard there can be little doubt that the bulk of her claims are unviable, particularly as she has been unable to obtain an order that she be made executrix of her mother's estate.  However, if the plaintiff was able to prove the facts asserted in her statement of claim, then in my view she would be likely to receive a relatively minimal award pursuant to the Fatal Accidents Act 1959 as amended.

9. As I have previously observed, the discretion to dismiss an action for want of prosecution or for non‑payment of security is wide and unfettered.  In the particular circumstances of the present matter I consider that a significant matter affecting the exercise of my discretion, is the fact that the plaintiff was served with an order in incorrect form, and in terms with which it was impossible to comply.  The plaintiff at all material times believed that the order as served was the order as made, and I consider that it would be unjust to dismiss the action  by reason of non‑compliance in these circumstances.  Accordingly, and for these reasons, the appeal will be allowed. 

10. Notwithstanding this outcome of the appeal, I am strongly of the view that it would not be in the interests of either of the parties for this action to proceed to trial.  Accordingly, at the time of delivering this decision I intend to make appropriate orders (pursuant to O 29 r 2 of the Rules of the Supreme Court) referring the matter to a Registrar of this Court for special mediation.