Avsar v Westland Healthcare Ltd - [2012] WASCA 125

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: AVSAR -v- WESTLAND HEALTHCARE LTD [2012] WASCA 125

CORAM: PULLIN JA
NEWNES JA

HEARD: 1 JUNE 2012

DELIVERED : 1 JUNE 2012

PUBLISHED : 22 JUNE 2012

FILE NO/S: CACV 10 of 2012

BETWEEN: JENNIFER PATRICIA AVSAR
Appellant
AND
WESTLAND HEALTHCARE LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KEEN DCJ
Citation  :AVSAR as Administratrix of the estate of Antoinette Maria Cowan -v- WESTLAND HEALTHCARE LTD [2007] WADC 27
File No  :CIV 3175 of 1997

Catchwords:

Appeal - Application to strike out grounds of appeal and dismiss appeal - Where right of appeal has been exhausted - Whether grounds of appeal have any reasonable prospects of success

Legislation:

District Court of Western Australia Act 1969 (WA), s 79
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr S A Richards

Solicitors:

Appellant: In person
Respondent: SRB Legal

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

Avsar as Administratrix of the estate of Antoinette Maria Cowan v Westland Healthcare Ltd [2007] WADC 27
Avsar v Westland Healthcare Ltd [2005] WADC 74
Avsar v Westland Healthcare Ltd [2007] WASCA 28
Avsar v Westland Healthcare Ltd [2008] HCASL 337
Avsar v Westland Healthcare Ltd [2008] WASCA 35
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38
Grierson v The King [1938] HCA 45; (1938) 60 CLR 431
Napier v The State of Western Australia [2008] WASCA 106
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Westland Healthcare Ltd v Avsar [2006] WASCA 230

REASONS OF THE COURT: The respondent made an application to dismiss the appeal on grounds that none of the proposed grounds had any reasonable prospect of success. When the matter was first listed for hearing, Mrs Avsar did not attend. The matter was adjourned and then heard on 1 June 2012. After hearing the appellant's submissions, the court upheld the respondent's application. As a result the appeal was dismissed with reasons to be given later. These are the reasons.
Mrs Avsar, the appellant, is a litigant who refuses to abandon her attempts to claim damages against the respondent. Despite decisions of the courts to the contrary, she continues to pursue claims that the respondent caused her mother's death.
The facts as found by Keen DCJ in Avsar as Administratrix of the estate of Antoinette Maria Cowan v Westland Healthcare Ltd [2007] WADC 27 are that in September 1995 her mother, Mrs Cowan, was in the respondent's nursing home. A doctor had diagnosed Mrs Cowan as suffering from Alzheimer's disease, diabetes and hypertension. This doctor said that Mrs Cowan needed nursing home care as she had disruptive behaviour, incontinence and was not able to look after herself. The doctor's prognosis was of a reduced life expectancy. Her condition was deteriorating rapidly. On 28 September 1995, in the nursing home, Mrs Cowan was mistakenly given a double dose of insulin. She was admitted to hospital as a result. In hospital she was observed to be drowsy, but she fully recovered and she was discharged back into the respondent's care the next day. In October 1995, she was discharged into the care of Mrs Avsar. Mrs Avsar and her mother went to Adelaide where they lived together. On 16 February 1996, Mrs Cowan died. The death certificate showed the cause of death to be multi cerebravascular accidents, diabetes mellitus and alcoholism.
On 30 January 1997, Mrs Avsar commenced proceedings in the District Court claiming damages against the respondent on the basis that the respondent caused Mrs Cowan's death by the double dose of insulin. Mrs Avsar was represented by several solicitors, and then by a solicitor who was under suspension. Eventually she began acting in person. Interlocutory decisions of registrars on the way to trial were challenged by Mrs Avsar: see Avsar v Westland Healthcare Ltd [2005] WADC 74. The proceedings up until that date were described by Chaney DCJ in that case as 'tortured'. Interlocutory steps generated other appeals to this court: see Westland Healthcare Ltd v Avsar [2006] WASCA 230 and Avsar v Westland Healthcare Ltd [2007] WASCA 28.
Eventually though, there was a trial of a preliminary issue. That was to determine whether the alleged negligence of the respondent caused the death of the deceased. This came on before Keen DCJ on 12 March 2007. Keen DCJ's reasons explained what had happened at the commencement of the hearing. He said:
The matter came on for trial on 12 March 2007 when the only matter to be dealt with as a preliminary issue was whether the alleged negligence of the defendant caused the death of the deceased. On that day the plaintiff applied to transfer the trial to South Australia, in effect seeking to adjourn the trial. I refused that application for the reasons that I expressed orally on that day.
The plaintiff took an active part in the trial on that day, but it is a matter of some considerable regret that thereafter at times she absented herself from the trial with no excuse, save that she had apparently applied to the Court of Appeal to stay the trial.
As I understand the position, when the matter resumed on 13 March 2007, no stay had been granted and, as I have noted, the plaintiff did not appear to make any application on that day. Accordingly, the trial proceeded in the absence of the plaintiff. On 14 March 2007 the plaintiff made a further application to adjourn the trial which I again refused. She also made application for evidence to be taken by video-link, which I also refused. I gave reasons in respect of both matters on that day and I need not repeat them here.
Keen DCJ then proceeded with the hearing and held that Mrs Avsar failed on the preliminary issue. As a result, the action was dismissed: Avsar v Westland Healthcare Ltd [2007] WADC 27.
Mrs Avsar appealed against Judge Keen's decision, alleging error based on 27 grounds. One of the grounds, ground 27, was that she was unfit and unable to attend the trial after 12 March and that the hearing should have been adjourned.
All of the grounds were struck out as having no reasonable prospect of succeeding and as a result the appeal was dismissed: see Avsar v Westland Healthcare Ltd [2008] WASCA 35.
As to ground 27, this court said:
Ground 27 alleges that Mrs Avsar was unfit to attend the trial after 12 March. However, on 13 March 2007, Mrs Avsar was fit enough to file her Court of Appeal application for a stay of the trial and to serve the application at the District Court. She was also fit enough to make travel arrangements for her son to fly to Turkey to be with her husband and to attend at the Federal Court. On 14 March, Mrs Avsar was fit enough to prepare further applications for an adjournment of the trial, to arrange for these to be filed at the District Court and to attend court on the afternoon for the hearing of those applications. When arrangements were made at the conclusion of the hearing on 14 March 2007, Mrs Avsar made no complaint she was unfit and instead gave other reasons for being unavailable. Ground 27 therefore has no merit.
There were no grounds directed to the merits of the decision by Keen DCJ whereby he dismissed the claim that negligence had caused the deceased's death.
Mrs Avsar applied for special leave to appeal against this court's decision. Her application was refused: see Avsar v Westland Healthcare Ltd [2008] HCASL 337.
Undaunted, on 16 July 2010, Mrs Avsar wrote to the respondent's insurers, contending that it was 'necessary for you to settle this long outstanding matter as soon as possible, before I arrange for the matter to be commenced in court all over again'. Despite letters from the respondent's solicitors pointing out that Mrs Avsar could not relitigate the same cause of action, Mrs Avsar commenced this appeal on 6 January 2012. The appeal is against Keen DCJ's order of 14 March 2007 dismissing Mrs Avsar's application to adjourn the trial of the preliminary issue. That order was the subject of Mrs Avsar's ground 27 in Avsar v Westland Healthcare Ltd [2008] WASCA 35.
Mrs Avsar has filed an appellant's case containing 19 grounds, ground 1 of which reads:
The primary court erred in law when DC Judge Keen aborted the trial to dismiss the civil action CIV 3175 of 1997, whilst plaintiff was visibly unfit.
Read literally, this ground is incomprehensible, but what the particulars to the ground indicate is that Mrs Avsar claims she was unfit to attend court on 13 and 14 March 2007. Other grounds then range back over earlier interlocutory decisions.
The main theme is Mrs Avsar's alleged unfitness to attend the trial before Keen DCJ. This is simply a repeat of the complaint made by ground 27 in [2008] WASCA 35. Mrs Avsar has filed an affidavit in these proceedings dated 6 January 2012 which contains no new or fresh evidence.
Pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) the court may dismiss an appeal where it has no reasonable prospect of success. No ground of appeal has any reasonable prospect of success. Section 79 of the District Court of Western Australia Act 1969 (WA) confers the right of an appeal. It does not confer the right to appeal for a second time when the first has been heard and determined on the merits and the order perfected: see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 300 (Dawson & Gaudron JJ), 315 (McHugh J), 327 (Gummow J). See also Grierson v The King [1938] HCA 45; (1938) 60 CLR 431, 434 (Rich J), 436 (Dixon J), 437 (McTiernan J); Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38; Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218. Once an appeal has been heard and determined on the merits, the statutory right of appeal has been exhausted. Any further appeal is incompetent: Napier v The State of Western Australia [2008] WASCA 106 [12].
The appellant had also made applications, being applications to extend the time in which to appeal and for leave to appeal. Because the respondent's application was upheld, it was not necessary to deal with the appellant's applications.
The appeal is dismissed.