Avsar v Westland Healthcare Ltd - [2005] WADC 74

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: AVSAR -v- WESTLAND HEALTHCARE LIMITED [2005] WADC 74

CORAM: CHANEY DCJ

HEARD: 12 NOVEMBER 2004

DELIVERED : 21 APRIL 2005

FILE NO/S: CIV 3175 of 1997

BETWEEN: JENNIFER PATRICIA AVSAR
Plaintiff
AND
WESTLAND HEALTHCARE LIMITED
Defendant

Catchwords:

Procedure - Appeals from Registrar - Futility of appeal in relation to adjournment - Irregularity in filing of chamber summons - No substantive effect on proceedings - Turns on own facts

Procedure - Application to strike out pleadings - Action commenced by plaintiff prior to grant of administration - Whether valid proceedings - Leave to amend statement of claim

Procedure - Substitution of plaintiff

Legislation:

Law Reform (Miscellaneous Provisions) Act 1941

Fatal Accidents Act 1959

Result:

Appeal against orders of 10 June 2004 dismissed
Application to strike out appeal dismissed
Registrar's orders of 24 August 2004 varied
Leave to substitute plaintiff granted

Representation:

Counsel:

Plaintiff: Mr V G De Alwis ( by leave)
Defendant: Ms F C E Davis

Solicitors:

Plaintiff: In person
Defendant: Phillips Fox

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

Ammoun v Ammoun, unreported; SCt of WA; Library No 4395; 8 February 1982
Finnegan v Cementation Co Ltd [1953] 1 QB 688
Hilton v Sutton Steam Laundry [1946] KB 65
Ingall v Moran [1944] KB 160
Patrick v Mumby (1898) 24 VLR 448
Pekel & Anor v Humich & Ors, unreported; SCt of WA; Library No 980701; 3 December 1998

Case(s) also cited:

Nil

CHANEY DCJ: This action was instituted in 1997. In it, the plaintiff claims damages in relation to the alleged negligence of the defendant in the administration of insulin to the plaintiff's mother, Mrs Cowan, which the plaintiff asserts eventually led to Mrs Cowan's death.
After a somewhat tortured history, the action was listed for trial for five days commencing on 31 May 2004. The matter was initially listed for trial at a listing conference held on 9 February 2004. In late February, through to early April, there were various hearings in chambers before a Registrar in relation to the issue and early return of a number of subpoenas duces tecum and orders were made in relation to the exchange of expert evidence. In the course of those hearings, the question of the state of the pleadings was raised, and the plaintiff foreshadowed an application to vacate the trial dates. The plaintiff made an application to adjourn the trial in mid‑April. That application was dealt with by a Judge on 29 April 2004 and the application was granted. As well as applying to vacate the trial dates, the plaintiff sought leave to amend her statement of claim. That application was adjourned to a special appointment before Acting Principal Registrar Kingsley (whom I will refer to as "the Registrar"). A draft amended statement of claim was filed on 18 May 2004.
On 28 May 2004, the defendant filed a number of documents. Those documents included an affidavit of Lucinda Kate Gunn expressed to be "in support of the defendant's application for summary judgment … pursuant to SCR O 16 or alternatively to strike out the plaintiff's statement of claim pursuant to SCR O 20 r 19(1)". At the same time, a set of submissions was filed. The face sheet of those submissions describes them as being in support of the applications referred to on the face sheet of Ms Gunn's affidavit. A list of authorities bearing the same description was also filed. On 8 June 2004, the defendant's solicitors wrote to the plaintiff enclosing "a copy of the defendant's application for summary judgment". The letter recited that "a sealed copy has not been returned to me by the court", and that a request had been made to the court to have the summons dealt with at the same time as the application to amend the statement of claim, which was listed to be heard on Thursday, 10 June 2004 before the Registrar. Apparently the defendant believed that a copy of that summons was included amongst the other documents lodged with the court on 28 May 2004. That belief may well be quite correct, but for some reason the summons does not appear on the court file amongst the documents filed on 28 May, and somewhere along the line it has obviously been mislaid.
The letter from Phillips Fox enclosing a copy of the summons was received by Mrs Avsar on 9 June 2004. The next day, in chambers, she sought to have the Registrar dismiss the chamber summons (which I will refer to as "the strike out application") on the basis that it had been "filed and served without due notice". The Registrar declined to make that order, but instead adjourned the hearing of both the application to amend the statement of claim and the strike out application to 17 June 2004.
The following day on 11 June 2004, Mrs Avsar filed a notice of appeal against the Registrar's refusal to dismiss the strike out application and his decision to adjourn both applications for seven days. That appeal is one of the matters presently before me.
The plaintiff did not seek a stay of execution of the Registrar's orders pending her appeal against them, and accordingly the matter came on for hearing before the Registrar on 17 June. The plaintiff's application to amend the statement of claim, and the defendant's strike out application were then fully argued before the Registrar on 17 June. On 9 July the Registrar delivered his written reasons for decision. In those reasons the Registrar expressed the conclusion that any claim that the plaintiff has under the Law Reform (Miscellaneous Provisions) Act should be struck out and could not be revived through any amended pleading. He concluded that the plaintiff's claims under the Fatal Accidents Act should be allowed to proceed in the action, but expressed the view that the pleading in its present form should not be allowed to stand, and should be struck out with leave to the plaintiff to file and serve a fresh statement of claim confined to claims under the Fatal Accidents Act.
On 16 July 2004, an appeal against the Registrar's decision delivered on 9 July 2004 was instituted, notwithstanding that it does not appear that the Registrar made any formal orders on that date. Those orders were eventually made on 24 August 2004. That appeal is another of the matters currently before me.
While the Registrar was considering his decision in relation to the matters argued on 17 June 2004, the plaintiff, on 5 July 2004, filed a chamber summons seeking orders pursuant to O 18 r 6 that she be substituted in her capacity as administratrix of the estate of her late mother as plaintiff in the action. That is another matter that is currently before me for consideration.
That is not an end to the applications. On 9 July 2004, apparently coincidentally to the delivery of the Registrar's decision on that date, the defendant issued a chamber summons seeking to strike out the plaintiff's appeal dated 11 June 2004 against the Registrar's decision of 10 June. That summons is also presently before me.
A review of the file also shows that there is an outstanding appeal lodged by the plaintiff against certain orders made by the Registrar in relation to an extension of time for compliance with the subpoenas duces tecum in February. That appeal was not listed before me, and was not for that reason argued. It was a matter which will need be dealt with so as to dispose of all outstanding matters on the file so that sensible directions can be made to bring the action to trial without any further expense and delay.
The matters which were heard by me and which these reasons will deal with therefore comprise:
1.The plaintiff's appeal lodged 11 June 2004 against the Registrar's orders on 10 June 2004.
2.The defendant's application to strike out the notice of appeal dated 11 June 2004.
3.The plaintiff's appeal against the Registrar's decision of 9 July 2004 (which I take to be an appeal against his orders made 24 August 2004).
4.The plaintiff's summons dated 4 July 2004 for substitution of herself as administrator of the deceased estate as plaintiff in the action.

The plaintiff's representation

Although, during the history of the action, the plaintiff has been represented by several firms of solicitors from time to time, she is presently acting in person. She has been for some time. At one stage during the history of the action, she was represented by a Mr De Alwis. Mr De Alwis was, when these matters were argued before me, suspended from legal practice by order of the Legal Practice Board. When the matter was brought on, on 24 August 2004 for orders to be made consequent upon the Registrar's decision of 9 July 2004, Mrs Avsar was apparently in poor health. Her daughter appeared on her behalf.
When the matter was called on for hearing before me on 12 November 2004, Mr De Alwis sought leave to appeal on Mrs Avsar's behalf. He sought that leave on the basis that he would fulfil the role of amicus curiae, or alternatively as a McKenzie friend. I determined that, not being a practitioner holding a current practice certificate, Mr De Alwis could not fill the role of amicus curiae in the usual sense of that role. It was also apparent that he sought to argue the matters on Mrs Avsar's behalf, and in that sense to play a role well in excess of the generally accepted role of a McKenzie friend. Mrs Avsar advised me from the bar table that she remained unwell, that she did not believe that she could stand for long to make submissions and, in effect, did not feel able to represent herself adequately in view of her health. When asked as to whether she had anything in the way of a medical report as to her current condition, she produced a bundle of letters and medical reports, none current, and some a few years old. It was apparent from those documents that she generally had not enjoyed good health for some years, but there was little assistance to me in making any objective assessment as to the state of her health. In the course of the matters upon which she did address me, I formed the view that she would have some difficulty in arguing her case. I was concerned that the interlocutory matters that are before me have given rise to documents that now fill in excess of three lever arch files. The total volume of papers filed in the action now occupy some eight lever arch files. Much of the material filed in relation to the matters before me is repetitive and much is totally unnecessary. Against that background, and given Mrs Avsar's assertions as to the state of her health, I formed the view that the public interest in achieving a fair and efficient disposition of the matters with which I am concerned would be better served by granting Mr De Alwis leave to argue the applications on 12 November 2004. Neither party wished to adjourn the hearings before me, and the defendant in particular, whilst opposing the grant of leave to Mr De Alwis to appear, expressed its primary concern as avoiding any adjournment of the matter. Both parties considered that adjournment of the application was not in anybody's interests. The other alternative of requiring Mrs Avsar to argue her case herself had the capacity to work an unfairness on Mrs Avsar. Accepting at face value her complaint as to her state of health, and given the confusion which has been demonstrated by the vast amount of paper filed in relation to these applications, I formed the view that Mrs Avsar was unlikely to be able to properly present her case in an orderly fashion. I thus acceded to Mr De Alwis's application to be heard on the plaintiff's behalf.
As I made clear at the conclusion of the hearing, the grant of leave on this particular occasion should not be taken to be a general grant of leave in relation to any other proceedings in this action, nor as an indication of a likelihood that the same indulgence will be granted again. As it happened, in the course of his submissions, Mr De Alwis disclosed a matter which was very clearly the subject of without prejudice communications between the parties, and in doing so, jeopardised my capacity to continue to manage this file, or at least to ultimately conduct the trial of the action. That was most regrettable, and highlights the reasons that, in general, only certificated practitioners alert to their duties to the court, are generally able to appear.

The Registrar's orders of 10 June 2004

The plaintiff complains about the orders made by the Registrar on several grounds.
First, the plaintiff complains that the summons, a copy of which she received by mail on 9 June 2004, did not have the seal of the District Court endorsed on it nor did it have the date and time for hearing written on it. It was said that the application was never formally filed, nor were any application fees paid on it.
The observations made by the plaintiff may well be correct. What is clear, however, is that by 10 June 2004, the plaintiff had a copy of the summons setting out the orders which are sought, the Registrar presumably had a copy of the summons supplied to him, and the substance of the application was well known to all concerned. Whether the summons was not included amongst the documents lodged with the court on 28 May, or whether it was included but was mislaid somewhere in the court's Registry, or whether there is some other explanation for the fact that the document did not, at least at that stage, find its way onto the court's file, may never be known. The significant thing is, however, that had the summons been filed, the course of events would have followed precisely the same course as that which occurred. The proceedings progressed on the assumption that the summons had been regularly issued. If there was a failure to comply with the terms of the rules requiring applications to be made by summons, that failure would amount to an irregularity which, by virtue of O 2 r 1(1) of the Rules of the Supreme Court would not nullify the proceedings or any step taken in the proceedings.
The second concern expressed by the plaintiff in her written submissions was that she did not have proper notice of the application on 10 June 2004, presumably because the seven days' notice required by O 59 r 5(1) of the Rules of the Supreme Court had not been given. If the Registrar had dealt with the matter on 10 June 2004 in any substantive way, that objection would have some substance. He did not do so, however. He adjourned the matter for seven days, thus ensuring compliance with the requirement of the rules as to notice. That was clearly within his discretion, and in my view was an entirely appropriate course of action to follow.
The third matter raised in the plaintiff's written submissions is that the Registrar "insisted" on proceeding with the hearing on 17 June 2004, notwithstanding that an appeal had commenced on 11 June 2004 against his directions the previous day. Mr De Alwis submitted that, in proceeding to deal with the substantive application on 17 June, the Registrar became "a judge in his own cause" and thus denied natural justice to the plaintiff. I do not understand that submission. Order 6 r 11(5) of the District Court Rules provides that an appeal from the decision of a Registrar shall not operate as a stay of proceedings unless so ordered by a Judge or a Registrar. The institution of the appeal on 11 June did not therefore operate as a stay of the direction that the matter be dealt with on 17 June. For the Registrar to have declined to deal with the matter on 17 June would in effect have been to allow the appeal.
The orders made by the Registrar were clearly within his discretion. The points made by the plaintiff against the exercise of that discretion are all matters of form and not substance. The appeal never had any real prospect of success, and in my view was ill‑conceived.
The position is now that the Registrar has heard the substantive applications and delivered written reasons for decision. There is an appeal against that decision which I am required to deal with. The appeal is a hearing de novo, that is, I am required to consider the application afresh. Those circumstances highlight the pointlessness of the pursuit of the plaintiff's appeal against the directions given on 10 June. The plaintiff contended that the appeal should be disposed of by way of an order made pursuant to O 2 r 1(2) of the Rules of the Supreme Court setting aside all steps taken in relation to the defendant's strike‑out application, including the Registrar's decision and the orders made as a consequence of that decision. The practical effect of such an order would be that the defendant would be entitled to, and probably would, commence a fresh application to strike out on precisely the same grounds as have now been adjudicated upon by the Registrar. In the ordinary course that matter would be heard before a Registrar, whose decision would be subject to an appeal to a Judge of the court. The ultimate result would be that, sometime in the future, either a Registrar or a Judge would again be called upon to determine the very issues which arise, and were fully argued before me. It would be absurd to now start the whole process over again by setting aside the proceedings leading up to and including the Registrar's decision.
It follows that the plaintiff's appeal lodged 11 June 2004 should be dismissed.

The defendant's application to strike out plaintiff's 11 June Appeal

The defendant issued a summons to strike out the plaintiff's appeal of 11 June 2004 on the basis that it was an abuse of process, or alternatively, was scandalous, frivolous or vexatious. The essence of that application was that the appeal was pointless given that the substantive applications had been determined on their merits by the Registrar by his decision delivered 9 June 2004. In reaching my conclusion that the appeal should be dismissed, I have, in effect, adopted the reasoning which led to the issue of the defendant's summons of 9 July 2004. There is a question as to whether that summons was necessary at all, rather than for the defendant to simply argue that the appeal should be dismissed for the reasons which underlay the issue of the summons to strike out. The explanation proffered by counsel for the defendant for the issue of the summons was that it would have enabled the matter to be dealt with before a Registrar, rather than by a Judge on the hearing of the appeal itself. Thus it was thought that the issue of the chamber summons returnable before a Registrar would have provided a simpler method of disposition of the appeal. That objective was thwarted by orders that all of these matters be dealt with as a special appointment before a Judge. Notwithstanding that, given the dismissal of the appeal on its merits, the summons to strike out should also be dismissed, there was sound basis for the institution of that application, which may be relevant to the question of the costs of that summons.

The appeal filed 16 July 2004 against Registrar's Kingsley's decision of 9 July 2004

The summons dealt with by the Registrar in his reasons of 9 July sought the following orders:
1.The defendant have leave to bring this application.
2.Judgment be entered for the defendant with costs against the plaintiff pursuant to O 16 r 1 of the Rules of the Supreme Court insofar as the plaintiff's claim is brought pursuant to the Law Reform (Miscellaneous Provisions) Act.
2.1In the plaintiff's statement of claim filed 3 November 1997:
2.1.1Paragraph 20 and the particulars thereto; and
2.1.2The prayer for relief paragraph (ii),
2.2Alternatively, in the statement of claim dated 7 June 1999 and filed on 1 July 1999:
2.2.1Paragraph 20 and the particulars thereto; and
2.2.2The prayer for relief in paragraph (ii).
3.In the alternative the plaintiff's claim under the Law Reform (Miscellaneous Provisions) Act be struck out with costs awarded to the defendant on the basis that the action does not disclose a reasonable cause of action, is scandalous, frivolous or vexatious and may prejudice, embarrass or delay the fair trial of the action, with respect to the parts of the plaintiff's pleading as set out in pars 2.1 and 2.2 above.

The orders made by the Registrar on 24 August 2004 implementing his reasons in relation to the defendant's summons were as follows:
1.The defendant have leave to bring the application;
2.the defendant's application pursuant to O 16 be dismissed;
3.the defendant's application insofar as it relates to the Law Reform (Miscellaneous Provisions) Act 1941 be allowed;
4.the costs be reserved to the trial Judge.
In addition, the Registrar made orders on the plaintiff's application for leave to amend the statement of claim (which was filed on 19 August 2002) as follows:
1.The application for leave to file and serve a substituted statement of claim dated June 2004 be dismissed;
2.the plaintiff do have leave to file and serve a substituted statement of claim within 28 days limited to pleading a claim for damages under the Fatal Accidents Act 1959;
3.the costs of the plaintiff's application be reserved to the trial Judge.
To understand the defendant's application, it is necessary to have regard to the terms of the statement of claim. Identifying the current statement of claim from the documents on file is by no means straightforward. The Registrar concluded, however, that a pleading entitled Substituted Statement of Claim and filed on 1 July 1999 should be treated as the current pleading, and neither party takes any issue with that determination.
The statement of claim pleads that the plaintiff's mother, Antoinette Marie Cowan ("the deceased") was admitted to a nursing home operated by the defendant in September 1995. She was said to then be suffering dementia and diabetes. It is pleaded that she was administered a double dose of insulin which resulted in her admission to Fremantle Hospital on 28 September from where she was discharged on 29 September 1995. It is pleaded that she was re‑admitted to Fremantle Hospital on 9 October 1995 "in a hypoglycaemia coma" where she remained as an in‑patient until 16 October 1995. It is pleaded that the deceased then travelled with the plaintiff on 19 October 1995 to South Australia, her condition deteriorated rapidly and she eventually died on 16 February 1996. A number of particulars of negligence or breach of contract are asserted against the defendant in relation to the administration of the insulin and various other criticisms of the care of the deceased at that time.
It is then pleaded that "the plaintiff brings this action for her own benefit as the only child of the deceased and when probate is granted (filed in Supreme Court, after Public Trustee granted the plaintiff consent) brings this action for the benefit of the relatives of the deceased."
Paragraph 19 of the statement of claim then pleads some particulars of the plaintiff's claim in the following terms:
"(a)the plaintiff is the daughter and only child of the deceased who was born on 22 June 1928;
(b)Nature of Claim:
(1)(i) As at the date of her death, the Deceased was 67 years of age;
(ii)as at the date of her death, the Deceased received superannuation contributions and pension in the sum of $625 per fortnight;
(iii)as at the date of her death, the Deceased contributed to the Plaintiff's household expenses and made financial gifts to the Plaintiff for the benefit of herself and her four children and, as such, the Plaintiff has suffered loss of financial support and has suffered loss and damage;
(2)(i) As a result of the Deceased's deteriorating condition, the Plaintiff arranged for the Deceased to be transferred to the Plaintiff's home in Adelaide so that the Plaintiff could care for her;
(ii)the Plaintiff, husband and four children claims reimbursements for loss of income resulting from the Plaintiff being unable to work and operate the meat and skin export business and earn income, resulting in the loss of export licence, because of the time spent by the Plaintiff and husband caring for the Deceased, particulars of which loss will be provided;
(iii)the Plaintiff and eldest son Sean claims damages for post traumatic stress disorders, physical and mental injury resulting from the suffering and death of the deceased pursuant to the Acts Amendment (Actions for Damages) Act PART 111 – SUPREME COURT ACT 1935 as amended (sic)."
Paragraph 20 of the statement of claim reads as follows:
"20.Further, the Deceased during her lifetime suffered the deterioration of her condition and by her death her life was considerably shortened and in consequence thereof her estate has suffered substantial loss and damage. Particulars of which loss will be provided.
ALSO
Loss of Benefits that the Deceased was insured for under the Paraplegic Benefit Fund;
Sum insured for in Insurance Policy                 $75,000
Deceased was unable to claim within the
prescribed time given in the insurance policy,
as Defendant failed to disclose the fatal
accident to the Plaintiff and her family
PARTICULARS
(a)Funeral Expenses  $7,500
(b)Additional costs incurred by the Plaintiff
arising from the care of the Deceased
prior to her death:
All receipts available:
(i)    medical expenses
(Medicare to be reimbursed)
(ii)   ambulance charges
(St Johns Ambulance)
(iii) costs of travel and relocation
Adel/Perth/Adel
(iv) purchase of additional furniture
and equipment
(v)   cost of home and bath modifications) Total $20,175
(vi) purchase of van for wheelchair
transportation of the Deceased  $6,655
(vii) interest on additional borrowings
obtained to finance additional
purchases ANZ Bank  $2,320
(c)The Plaintiff claims carer's reimbursement for the Deceased's board at the Plaintiff's home for 17 weeks as follows:
(ci)(i)    19 October 19095 – 20 November 1995:
4.5 weeks (Full-time care 24 hrs)
(ii)19 December 1995 – 5 January 1996:
2.5 weeks (Full‑time care 24 hrs)
(iii)16 January 1996 – 18 January 1996
.5 weeks (Full‑time care 24 hours)
While the Deceased resided at the Plaintiff's home, she required care on a 24 hours a day basis which was provided by the Plaintiff and members of the Plaintiff's family and the Plaintiff claims for such services gratuitously to the Deceased as follows:
7.5 weeks at $15 per hour for two twelve hour shifts per day by two persons  = $19,080
(cii)The Deceased also required special feeding and nursing care which was provided three times each day at mainly the Gawler Health Service and Royal Adelaide Hospital as follows:
(i)20 November 1995 – 19 December 1995    4 weeks
(ii)5 January 1995 – 16 January 1996            2 weeks
(iii)18 January 1995 – 16 February 1996        4 weeks
Three visits each day at meal times equals
9 hours per day
Reduced rate at $10 per hour for two persons
= $90 per day including travel costs of 80 kms
per day to RAH and accommodation for whole
family in caravan park close to the hospital     = $ 6,300
AND THE PLAINTIFF CLAIMS against the Defendant:
(i)Damages pursuant to the Fatal Accidents Act, 1959 as amended, for her own benefit as daughter of the Deceased and for the benefit of all of the relatives of the deceased.
(ii)Damages on behalf of the Estate of the Deceased pursuant to the Law Reform (Miscellaneous Provisions) Act, 1941 as amended;
(iii)interest on damages as at such rate and for such period as the Court may order;
(iv)Costs."
The plaintiff's application to amend the statement of claim now relates to a document dated 17 June 2004 and entitled Plaintiff's Minute of Amended Writ of Summons and Plaintiff's Minute of Amended Statement of Claim. The proposed amended statement of claim is difficult to follow. It starts with six paragraphs which are entirely new which appear to be a summary of the claim and its basis. The document then sets out a further 19 paragraphs, the first 18 of which appear to be pars 1 to 18 of the existing pleading. There is then a new par 19 which pleads that: "The Plaintiff brings this action for her own benefit as the only child of the deceased as next friend for and on behalf of the Plaintiff's disabled son Sean Avsar the Deceased's first lawful grandson." There then follows a series of separate claims by each of Mrs Avsar herself, then through her children Sean Avsar, Slim Avsar, Yasmin Avsar and Yusef Avsar, who is now apparently 11 years old.
The claim by Mrs Avsar is said to comprise a loss of financial support which Mrs Avsar gained from the deceased prior to her death by way of contribution to household expenses and gifts. Her second category of claim is funeral, burial, ambulance and medical expenses "pursuant to the Fatal Accidents Act 1959," and a third category is said to be a loss as a beneficiary of the deceased's will by reason of "testamentary dispositions taking effect earlier than would otherwise have been the case". That is said to be a claim arising under the Fatal Accidents Act. The fourth category of claim, said to be pursuant to the Law Reform (Miscellaneous Provisions) Act 1941 is a loss the plaintiff claims to have suffered by reason of being unable to operate a meat and skin export business and earn income as a result of her personal injuries, time spent caring for the deceased and pursuing claims in West Australian courts. A claim under the same Act is made in relation to "damages for loss of enjoyment of life in relation to personal injury being post traumatic stress disorder, depression, chronic shock, physical and mental injury as a result of witnessing the suffering and death of the deceased for five months" and a claim for gratuitous services rendered by Mrs Avsar to the deceased. The claims for personal injuries suffered by Mrs Avsar are particularised in considerable detail There are particulars of loss of earnings and potential future earnings also given in general terms although they are not quantified.
There then follows a claim on behalf of Sean Avsar in relation to loss of support, losses by reason of testamentary dispositions taking early effect, and damages for personal injury suffered by Sean Avsar including a loss of capacity to earn and damages for loss of enjoyment of life.
In relation to Slim Avsar damages are claimed for loss of enjoyment of life, pain and suffering from post traumatic disorders, mental anguish and stress "as a result of witnessing the deceased's injuries and death, and also in particular his mother suffering injury since October 1995." Those damages are claimed pursuant to the Law Reform (Miscellaneous Provisions) Act.
A similar claim is made in relation to Yasmin Avsar and Yusef Avsar.

Leave to bring applications

The defendant's application for judgment pursuant to O 16 alternatively to strike out the plaintiff's pleading was brought well outside the time limited for such applications. Accordingly, the first order sought on that application was leave to bring the applications. The time for an application under O 16 is within 21 days after appearance, or at any later time by leave of the court. The time for bringing an application to strike out pleadings pursuant to O 20 r 19 is within 21 days of service of the pleading objected to. Ordinarily an application of this nature would not be entertained so late in the proceedings. The circumstances in which the application is brought in this case are, however, quite unusual.
As indicated earlier, the trial dates were vacated on the application of the plaintiff in April 2004. At the same time, the plaintiff sought leave to amend her statement of claim in the manner which I have outlined. The application to amend the statement of claim threw into focus, again, the nature and basis of the various claims being made by the plaintiff. Since the original statement of claim was filed in January 1997 with the writ, there have been a further three substituted statements of claim filed. In an action like this, where there have been voluminous interlocutory proceedings, it is not unreasonable for the defendant to have elected not to prolong those interlocutory matters, but rather leave issues as to the sustainability of various claims to the trial judge. However, when faced with the vacation of the trial dates, and the foreshadowing of yet another substantial amendment to the statement of claim, it was, in my view, reasonable and appropriate for the defendant to raise its objections to the sustainability of various aspects of the defendant's claim, and to pursue its argument as to the sustainability of the entirety of the claim. I agree with the Registrar's conclusion that it is appropriate that leave to bring the application be granted.

The claims under the Law Reform (Miscellaneous Provisions) Act 1941

The defendant contends that the claims purportedly brought by the plaintiff pursuant to the Law Reform (Miscellaneous Provisions) Act1941 are not sustainable, because the plaintiff did not have the standing to bring the proceedings under that Act at the time when the proceedings were commenced, and thereafter the proceedings, insofar as they are brought under that Act, are a nullity. The Registrar upheld that contention. In support of that proposition, the defendant relies on a line of authority commencing with Ingall v Moran [1944] KB 160 followed by Hilton v Sutton Steam Laundry [1946] KB 65 and Finnegan v Cementation Co Ltd [1953] 1 QB 688 Ingall v Moran established what appears to be a relatively well accepted principle that an action commenced by a person on behalf of a deceased estate prior to the granting of letters of administration is a nullity. That nullity was not cured by the doctrine of "relation back" which is reflected in s 8 of the Administration Act 1903. That section deems all real and personal estate of a deceased person to have been vested in an executor to whom probate is granted, or an administrator who obtains letters of administration, as from the date of death of the deceased. That line of authority would suggest that proceedings claiming only relief under the Law Reform (Miscellaneous Provisions)Act brought by a person not appointed under a Will as executor, nor granted letters of administration, would constitute a nullity which could not be cured by any subsequent order of the court. Those authorities were not, however, considered binding by Master Sanderson in the Supreme Court of Western Australia in his decision in Pekel & Anor v Humich & Ors, unreported; SCt of WA; Library No 980701; 3 December 1998. The Master said that "there can be no doubt about the principle. An administrator does not have title to sue before a grant of letters of administration. When the grant is made it is not effective to validate proceedings issued before the grant." Notwithstanding that, the learned Master considered that he was not constrained by the authorities to which he referred, none of which was binding upon him, and he declined in the case before him to apply the principle. Pekel was a case where the action had been brought by an executor appointed under a Will, but prior to the grant of probate. The defendant sought, in the case before me, to distinguish Pekel on that basis.
Another decision of the Supreme Court which is inconsistent with the proposition emerging from Ingall v Moran is Ammoun v Ammoun, unreported; SCt of WA; Library No 4395; 8 February 1982. In that decision in chambers, Brinsden J was concerned with an appeal from an order of an acting Master that the plaintiff be appointed legal representative of the estate. Order 18 r 15 enables such an appointment to be made by the court notwithstanding that the deceased has no personal representative by reason of a grant of probate or letters of administration. His Honour discussed the issue as to whether an order under O 18 r 15 could be made only when valid proceedings, commenced by somebody entitled to commence them, were on foot. He considered that the provisions of O 18 r 15 do not support the proposition that the court can appoint a person to represent the estate where the action had been commenced by the person seeking the appointment without an entitlement to do so. His Honour pointed to the conflict between what was said to be the position in England in the commentary in "Supreme Court Practice" 1979, Vol 1; p 219 which suggests that a valid proceeding was necessary, and the position in Victoria suggested in Williams, "Supreme Court Practice" Vol 1 2nd ed at 1255 relying on the decision in Patrick v Mumby (1898) 24 VLR 448. Having discussed that conflict, Brinsden J considered it unnecessary to resolve the conflict by reason of the provisions of O 2 r 1(1) of the Supreme Court Rules. His Honour categorised the commencement of the proceedings in the name of the plaintiff as representative of the estate without having obtained an order under O 18 r 15, as a failure to comply with that rule, which should, by virtue of O 2 r 1(1), be treated as an irregularity which does not nullify the proceedings.
Master Sanderson, in Pekel, expressed some difficulty in understanding Brinsden J's reasoning and noted that it was in conflict with Ingall v Moran, but also noted that Ingall v Moran was not referred in his Honour's reasons.
Putting aside objections to the statement of claim concerning whether the particular losses claimed are recoverable under the Law Reform (Miscellaneous Provisions) Act, the primary objection to the plaintiff's claim under that Act, and the objection upheld by the Registrar, is that the proceedings are a nullity. The position is, however, complicated by the fact that even from the first statement of claim, the action has always encompassed claims under both the Fatal Accidents Act and the Law Reform (Miscellaneous Provisions) Act. No challenge is brought as to the plaintiff's capacity to bring the action under the Fatal Accidents Act. To the extent that the claim is brought under that Act, the writ was validly issued, and cannot be said to be a nullity. Rather, it was a writ containing multiple claims, some one or more of which, being brought under the Law Reform (Miscellaneous Provisions) Act, might have been liable to be struck out pursuant to O 20 r 19, or possibly, if the reasoning of Brinsden J in Ammoun is adopted, pursuant to O 2 r 2. An application pursuant to O 2 r 2 by the defendant would face the difficulty of not having been made "within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularities".
The plaintiff has now obtained limited administration of the estate for the purpose of conducting these proceedings pursuant to a grant dated 28 November 2003. In the circumstances, the irregularity in the proceedings is capable of being cured by the substitution of the plaintiff as administrator of the estate, at least in respect of those aspect of the claim brought under the Law Reform (Miscellaneous Provisions) Act, and I am not inclined to strike out the claim under that Act by reason of the failure on the part of the plaintiff to obtain letters of administration prior to the issue of the writ.

The application to strike out pursuant to O 20 r 19

The alternative relief sought in the defendant's strike out application was that par 20 of the plaintiff's statement of claim should be struck out on the basis of the plaintiff's incapacity to bring an action under Law Reform (Miscellaneous Provisions) Act, and also on the basis that the various damages claimed are not, as a matter of law, recoverable under the Fatal Accidents Act, the Acts Amendment (Actions for Damages) Act, No 50 of 1986, or the Law Reform (Miscellaneous Provisions) Act. In my view, there is merit in many of the defendant's objections on the ground that the damages claimed are not recoverable under the legislation identified in the pleading, or indeed at all.
The claims which in my view are not sustainable are as follows:
i.The claim contained in par 19(b)(iii) for damages for post traumatic stress disorders, physical and mental injury resulting from the suffering and death of the deceased pursuant to the Acts Amendment (Actions for Damages) Act pt III – Supreme Court Act 1935 as Amended (sic). The reference to the legislation is presumably a reference to the Acts Amendment (Actions for Damages) Act being No 50 of 1986 which amended both the Law Reform (Miscellaneous Provisions) Act and the Supreme Court Act. Its provisions do not provide any foundation for recovery of the damages claimed, nor do the provisions of either the Fatal Accidents Act or the Law Reform (Miscellaneous Provisions) Act.
ii.The claim in par 20 for the deceased suffering a deterioration in her condition during her lifetime, and a shortening of her life expectancy are expressly excluded by s 4(2)(d) of the Law Reform (Miscellaneous Provisions) Act1941. Having said that, some of the items particularised are not in fact particulars of the introductory plea in par 20, in the sense that they are not particulars of pain and suffering or shortened life expectancy. Some, such as funeral expenses, and, depending upon who incurred them, medical expenses may be recoverable under either the Law Reform (Miscellaneous Provisions) Act or the Fatal Accidents Act.

In the circumstances, if the statement of claim filed on 1 July 1999 remains the applicable pleading, then par 19(2), and par 20 should be struck out, with leave to file an amended pleading so as to claim those items properly recoverable under either the Fatal Accidents Act or the Law Reform (Miscellaneous Provisions) Act.
It follows that I would allow the plaintiff's appeal to the extent that the orders made by the Registrar should be varied as indicated.

The plaintiff's application for leave to amend the statement of claim

The claims now sought to be propounded by the plaintiff in her document of 17 June 2004 are summarised above. The pleading names as plaintiff her four children as well as herself as administrator of the estate. Orders joining those parties as plaintiff have not been made. As I have indicated in relation to the present statement of claim, the claims by Mrs Avsar personally under the Law Reform (Miscellaneous Provisions) Act relating to her inability to operate her meat and skin export business, and the claim for post traumatic stress disorder and other physical and mental injuries suffered by Mrs Avsar are clearly not sustainable. Similarly, the claims brought in respect of each child for personal injury, loss of earning capacity and damages for loss of enjoyment of life suffered by each of those children and said to be claimed pursuant to the Law Reform (Miscellaneous Provisions) Act are unsustainable under that legislation, or otherwise. The proposed statement of claim is in a form which would not permit the simple excision of the unsustainable portions of the claim, and leave to amend the pleading in the terms sought should not be granted.
Accordingly, the orders made by the Registrar on the plaintiff's application for leave to amend the statement of claim should stand, save that the words "limited to pleading a claim for damages under the Fatal Accidents Act 1959" should be deleted in view of my conclusions as to the capacity of the plaintiff to pursue a claim under the Law Reform (Miscellaneous Provisions) Act.

Plaintiff's application to substitute herself as administratrix of the deceased's estate as plaintiff in the action

The defendant opposes this application on the basis that it is misconceived and superfluous. It submits that there is no need for Mrs Avsar to be in her capacity as administrator of the estate to be substituted as plaintiff, because the Fatal Accidents Act is not reliant upon her having a grant of administration in respect of the estate. It is further submitted that, on the basis of the unsustainability of the action under the Law Reform (Miscellaneous Provisions) Act, the substitution should not be made for the purpose of enabling that aspect of the claim to proceed. I have already concluded that, in all the circumstances, the claim under the Law Reform (Miscellaneous Provisions) Act, is not defeated by reason of the fact that the action was commenced prior to the grant of letters of administration. With respect to the Fatal Accidens Act, s 6(1)(b) provides that an action shall be brought by and in the name of the administrator of a deceased person. In the circumstances, it is my view that it is appropriate that Jennifer Patricia Avsar as administrator for the estate of Antoinette Maria Cowan be substituted as a plaintiff in the action.

Conclusion

For the foregoing reasons:
(i)The plaintiff's appeal lodged 11 June 2004 should be dismissed.
(ii)The defendant's application to strike out the notice of appeal dated 11 June 2004 should also be dismissed by reason of the fact that the appeal itself is dismissed on the merits.
(iii)The appeal against the orders of the Registrar made 24 August 2004 should be allowed, and there should be substituted orders in relation to the defendant's strike out application the following orders:
1.the defendant have leave to bring the application;
2.the defendant's application pursuant to O 16 be dismissed;
3.paragraph 19(2) and par 20 of the plaintiff's statement of claim filed 1 July 1999 be struck out pursuant to O 20 r 19(1)(a).
(iv)In relation to the plaintiff's application for leave to amend the statement of claim, the orders made by the registrar on 24 August 2004 be varied by deleting from O 2 the words "limited to pleading a claim for damages under the Fatal Accidents Act".
(v)On the plaintiff's summons dated 4 July 2004, there should be an order that Jennifer Patricia Avsar as administrator of the estate of Antoinette Maria Cowan be substituted as plaintiff in the action.