Avsar v Westland Healthcare Ltd
[2008] WASCA 35
•4 MARCH 2008
AVSAR -v- WESTLAND HEALTHCARE LTD [2008] WASCA 35
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 35 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:49/2007 | 19 OCTOBER 2007 | |
| Coram: | PULLIN JA LE MIERE AJA | 3/03/08 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | All of the grounds of appeal struck out on the basis that they have no reasonable prospect of success Leave to appeal against interlocutory decisions refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JENNIFER PATRICIA AVSAR JENNIFER PATRICIA AVSAR as Administratrix for and on behalf of the Deceased Estate of ANTOINETTE MARIA COWAN WESTLAND HEALTHCARE LTD |
Catchwords: | Appeal Practice and procedure Trial of preliminary issue Application to adjourn dismissed by trial judge Application to strike out grounds of appeal Application to adjourn hearing of application Turns on own facts |
Legislation: | District Court of Western Australia Act (WA), s 79 Supreme Court (Court of Appeal) Rules (WA), r 43 |
Case References: | Allmark v Mossensons [2006] WASCA 127 Avsar v Westland Healthcare Ltd [2005] WADC 74 Avsar v Westland Healthcare Ltd [2007] WASCA 28 City of Camberwell v Camberwell Shopping Centre Ltd [1999] 1 VR 163 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 Jackamarra v Krakouer (Unreported, WASC, Library No 940374, 30 July 2004) Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Westland Healthcare Ltd v Avsar [2006] WASCA 230 Wilson v Metaxas [1989] WAR 289 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : AVSAR -v- WESTLAND HEALTHCARE LTD [2008] WASCA 35 CORAM : PULLIN JA
- LE MIERE AJA
- First appellant
JENNIFER PATRICIA AVSAR as Administratrix for and on behalf of the Deceased Estate of ANTOINETTE MARIA COWAN
Second Appellant
AND
WESTLAND HEALTHCARE LTD
Respondent
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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 - Practice and procedure - Trial of preliminary issue - Application to adjourn dismissed by trial judge - Application to strike out grounds of appeal - Application to adjourn hearing of application - Turns on own facts
Legislation:
District Court of Western Australia Act (WA), s 79
Supreme Court (Court of Appeal) Rules (WA), r 43
Result:
All of the grounds of appeal struck out on the basis that they have no reasonable prospect of success
Leave to appeal against interlocutory decisions refused
Appeal dismissed
Category: B
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Representation:
Counsel:
First appellant : In person
Second Appellant : In person
Respondent : Ms F L E Davis
Solicitors:
First appellant : In person
Second Appellant : In person
Respondent : SRB Legal
Case(s) referred to in judgment(s):
Allmark v Mossensons [2006] WASCA 127
Avsar v Westland Healthcare Ltd [2005] WADC 74
Avsar v Westland Healthcare Ltd [2007] WASCA 28
City of Camberwell v Camberwell Shopping Centre Ltd [1999] 1 VR 163
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478
Jackamarra v Krakouer (Unreported, WASC, Library No 950605, 10 November 1995)
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Westland Healthcare Ltd v Avsar [2006] WASCA 230
Wilson v Metaxas [1989] WAR 289
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1 JUDGMENT OF THE COURT: This is an application by the respondent seeking to strike out all of the appellant's grounds of appeal. The appeal is against the judgment of Keen DCJ on 15 March 2007, by which the appellant (Mrs Avsar's) action against the respondent was dismissed. There are also appeals against the dismissal of the appellant's application on 12 March 2007 to adjourn the trial and to order that the action be heard in Adelaide and against a further order dismissing another application made on 14 March 2007 for an adjournment of the trial.
2 It will suffice, for the purposes of this appeal, to explain that the action brought by Mrs Avsar was for damages pursuant to the Fatal Accidents Act 1959 and the Law Reform (Miscellaneous Provisions) Act 1971 arising out of the death of her mother Antoinette Maria Cowan. Mrs Avsar's mother was a diabetic, and on 28 September 1995 the respondent's staff accidentally administered a double dose of insulin to the deceased. The deceased was admitted to Fremantle Hospital where she was treated and was discharged into the care of the respondent the following day. The deceased returned to Fremantle Hospital on 9 October 1995 where she stayed until 16 October 1995 when she was discharged back into the care of the respondent. The deceased then went with the appellant to Adelaide to live with the appellant. The deceased died on 16 February 1996. The action by Mrs Avsar was commenced on 30 January 1997.
3 It is unnecessary to set out details of the history of this litigation. It appears in other judgments. See for example the judgment of Chaney DCJ in Avsar v Westland Healthcare Ltd [2005] WADC 74, and of this court in Westland Healthcare Ltd v Avsar [2006] WASCA 230 and Avsar v Westland Healthcare Ltd [2007] WASCA 28.
4 Eventually, after much interlocutory skirmishing, an order was made that there should be a trial of a preliminary issue to determine whether or not the respondent had been negligent and whether any such negligence caused the death of the deceased.
5 The interlocutory decisions made at the trial are reviewable at the conclusion of the trial. See Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478. Two of the judgments or orders the subject of this appeal are interlocutory judgments or orders. As a result, those judgments are not final judgments and thus s 79 of the District Court Act requires that leave be granted before the appeal may be heard. Usually leave will only be granted where the decision was wrong or attended with sufficient doubt to justify granting leave and that substantial injustice would be done by
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- leaving the decision unreversed. See Wilson v Metaxas [1989] WAR 289, Allmark v Mossensons [2006] WASCA 127 at [26] (an application for special leave to appeal against the latter decision was refused.)
6 The judgment dismissing the action as a result of the trial is a final judgment. See Jackamarra v Krakouer (Unreported, WASC, Library No 950605, 10 November 1995), City of Camberwell v Camberwell Shopping Centre Ltd [1999] 1 VR 163. It is not subject to the requirement of leave, but it is open to this court under r 43 of the Supreme Court (Court of Appeal) Rules 2005 (WA) to strike out grounds of appeal on the basis that they have no reasonable prospects of success as that expression was explained in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473. That rule also applies to grounds relating to the interlocutory orders.
7 It is not necessary to relate the very long history of this litigation. It is set out in full detail in the affidavit of Gemma Louise McGrath dated 24 May 2007 and filed in these proceedings. However, it is necessary to mention what happened in the week before the trial which commenced on 12 March 2007 and what happened during the trial.
Mrs Avsar's interlocutory application the week before the trial
8 On 6 March 2007, Mrs Avsar made an application for extension of programming orders before Judge Sleight. Judge Sleight's reasons were given ex tempore. They have not been reported, and are not on a database. For that reason, these reasons will be set out in full. They are lengthy, but are necessary in order to set the scene for what then happened at the trial.
SLEIGHT DCJ: The trial of a preliminary issue in this action is listed to commence on Monday, 12 March 2007. The plaintiff has made an application by a Chamber summons dated 28 February 2007 for an extension of programming orders.
I had previously ordered that the plaintiff file and serve on the defendant (a) reports of any medical witnesses to be called at the trial of the preliminary issue; (b) witness statements of any non expert witnesses to be called at the trial of the preliminary issue; (c) to permit the defendant's solicitors to inspect documents included in the plaintiff's list of discoverable documents, and (d) to provide a list of witnesses that the plaintiff seeks to give evidence at trial by way of video-link. The application by the plaintiff for an extension of time in relation to these programming orders was heard by me on 2 March 2007 and I reserved my decision until today. This decision I am now giving is in an extempore form and reserve the right to edit the transcript.
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- The grounds for seeking such an extension are: (a) Mrs Avsar is not in a financial position to obtain expert medical reports; (b) she has had insufficient time to locate and arrange expert witnesses; (c) because of the heavy workload in preparing appeals, she has had insufficient time to prepare statements of witnesses and to obtain independent legal advice.
In relation to the issue of inspection of documents discovered by her, she indicated that she had been unwilling to comply with an order requiring inspection as she did not believe it was appropriate until she completed her application for leave to appeal to the High Court against orders preventing her from joining, as a further defendant to the action, the Fremantle Hospital and also prior to the pleadings in the action being finalised. The effect of the plaintiff's application is that, if granted, the trial of the preliminary issue will need to be adjourned and accordingly, I have treated this application as, in effect, an application for an adjournment of the trial.
This morning the plaintiff filed further documents which consisted of the following: (1) a minute of orders sought, these orders sought are as follows: (1) the trial dates listed for 12 March 2007 be vacated to a date to be fixed; (2) the defendant do pay the balance of costs to the plaintiff's expert evidence reports adduced for the expected ongoing trial; (3) the defendant be restrained from having direct contact with any of the plaintiff's proposed expert and lay witnesses, prior consent to be obtained from the plaintiff in writing if absolutely necessary to do so; (4) for the defendant's proposed expert evidence be filed and served only once, the plaintiff's forensic and clinical reports are filed and served to allow for compliance with the processes of the court and (5) the costs of the plaintiff's application filed on 1 March 2007 be in the cause.
In my view, the nature of these orders sought manifests a lack of understanding of the obligation of the plaintiff to prove her case and to pay for, at least initially, the costs of presenting her case in court. A further document was lodged this morning, being a list of the plaintiff's proposed witnesses to be called at the trial of the preliminary issue. This list numbers 54 witnesses and includes the comment at the end of the list, 'and numerous other local witnesses if need arises'. This starkly contrasts with the indications that Mrs Avsar gave me on 2 March 2007 as to what witnesses she intended to call, details of which I will mention in a moment.
The plaintiff, was also ordered by me on 2 March 2007 to make available today all her discoverable documents for inspection by a representative of the defendant's solicitors. Mrs Avsar filed today a further affidavit by her sworn on 6 March 2007 which confirmed that some of the documents are stored at her daughter's residence. The affidavit goes on to state at paragraph 7 and 8 as follows:
My children are furious that they have been caused so much upheaval and chaos in their lives since 1995 to date as a result of the endless fraud and gross negligence experienced by their
- grandmother in the state of Western Australia have now decided not to get involved further with any person connected with this gross negligence and fraud. They also seek two weeks' notice from me to allow them to enter and access my documents in future and this was advised to me on 5 March 2007 at my eldest son's birthday party.
- The affidavit annexes to it a document signed by Ms Jasmine Avsar which is dated 4 March 2007 and reads:
To whom it may concern, I object to any authority or persons seeking to gain access to my home for any purpose whatsoever. In my view, the defendant ought to be ordered to pay my mother's costs for relocation of address to arrange to inspect whatever they so choose.
A further annexure to the affidavit signed by Mr and Mrs Sean Avsar, reads:
Myself and my wife refuse any person access to or enter our property for whatever purpose.
I am satisfied that this recent noncooperation is a part of a deliberate attempt by Mrs Avsar, with the assistance of her children, not to comply with the programming orders and to frustrate the trial proceeding. This conclusion I reach given that throughout the conduct of these proceedings. Mrs Avsar has purportedly been acting in the interests of her children and with their cooperation.
In order to consider the merit of the application by Mrs Avsar, the history of this action needs to be taken into account. This action was commenced on 30 January 1997 in the Supreme Court and subsequently transferred to this court and is now over 10 years in duration. The plaintiff's claim for the purpose of this decision can be summarised as follows; (a) her mother, the deceased, was admitted as a resident of the defendant's nursing home on 21 September 1995; (b) on 28 September 1995, she was administered a double dose of insulin when only one dosage was required.
This is admitted by the defendant.
(c) that the double dosage caused the death of the deceased on 16 February 1996.
The plaintiff's claim is for damages under the Fatal Accidents Act and the Law Reform (Miscellaneous Provisions) Act 1941. The defendant admitted in its defence that the deceased was given a double dose of insulin on 28 September 1995 but says that she made a full recovery for this and that her death was caused by one or more of the following: (1) a prior multiple cerebrovascular accident one year before her death; (2) the deceased's pre-existing diabetes mellitus, a condition which had been in
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- existence for at least two years prior to her death; and (3) alcoholism. The particulars pleaded in the defence state that these causes of death are cited in the certificate of death for the deceased.
A considerable amount of the interlocutory proceedings over the 10 year period have related to the plaintiff trying to extend the claim beyond the Fatal Accidents Act and the Law Reform (Miscellaneous Provisions) Act 1941, including claims by her and her children for damages for shock.
To some extent the history of this action is set out in the decision of his Honour Judge Chaney on 21 April 2005, see 2005 WADC 74, and my decision on 9 June 2006, see 2006 WADC 85. The decision of his Honour Judge Chaney mentions that the matter was listed for trial commencing on 31 May 2004 and at the request of the plaintiff an order was made just two days before the trial to adjourn the trial.
My decision of 9 June 2006 highlights the number of attempts the plaintiff has made to file an amended statement of claim. In my decision of 9 June 2006 I concluded that there should be a trial of the preliminary issue as to whether the death of the deceased occurred due to the negligence of the defendant or its servants or agents. This decision to have a hearing of a preliminary issue was appealed against by the plaintiff Mrs Avsar and this appeal was dismissed, see Westland Healthcare Ltd v Avsar (2006) WASCA 230.
In my decision of 9 June 2006 I also made orders for the plaintiff to file an amended statement of claim amending the particulars of damages and giving her leave to add a cause of action for nervous shock for herself. The defendant appealed against the latter and the Court of Appeal ruled that Mrs Avsar should not be permitted to make a claim for damages for nervous shock at this late stage. The remaining issue of the amendment of the statement of claim to correctly plead the damages has been left in abeyance pending the outcome of the trial of the preliminary issue.
On 29 August 2006 I made orders that the trial of the preliminary issue be listed for hearing on 27 November 2006 and made various programming orders which included orders for discovery, filing of medical reports of any medical expert witnesses to be called by the parties, and preparation and exchange of witness statements.
The listing of the trial of a preliminary issue was not made without warning. I had indicated several times in an intention to list the matter for trial some time in late 2006, (see page 3 of the transcript of the special appointment on 31 March 2006).
The programming orders insofar as they were relevant to the plaintiff Mrs Avsar, required her to, firstly, file and serve an affidavit of discovery by 28 September 2006; secondly, file and serve by 14 October 2006 a copy of medical reports of any medical witnesses; and, thirdly, file and serve by
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- 2 November 2006 copies of witness statements of the evidence-in-chief of each witness to be called by the plaintiff.
On 10 October 2006 the plaintiff filed an application seeking the trial dates be deferred at least until February 2007. On 18 October 2006 the matter came before me. I asked Mrs Avsar why she had not complied with the programming orders and she stated, 'Because I am not happy with going into a trial when I am not ready for trial,' (transcript page 47). She then raised other grounds that the pleadings had not been finalised as to damages; she had lodged an objection to the subpoena filed by the defendant concerning the production of certain documents; there was a pending appeal before the Court of Appeal.
On 18 October 2006 I granted extensions to the programming orders extending the programming orders concerning the plaintiff as follows: (1) discovery milestone extended to 30 October 2006; (2) filing of medical reports milestone extended to 8 November 2006; and (3) filing of witness statements milestone extended to 14 November 2006. The plaintiff's application to adjourn the trial was adjourned to 31 October 2006.
On 19 October 2006 the plaintiff filed an application to add a new defendant, Fremantle Hospital, and that she be given leave to sue in her personal capacity. On 31 October 2006 the plaintiff's daughter appeared on behalf of the plaintiff and informed the court that the plaintiff's husband had suffered a brain haemorrhage and the plaintiff had to fly out of the country to be at her husband's side.
The plaintiff's daughter gave evidence under oath concerning this unfortunate situation. I vacated the trial listed on 27 November 2006 and made an order to stay all programming orders. On 27 November 2006 the matter came before me again. By this time, the plaintiff had returned from overseas. I relisted the trial of a preliminary issue for five days, commencing on 12 Match 2007, and set new time limits for complying with the programming orders. In relation to the plaintiff they were as follows: (1) discovery by 8 December 2006; (2) medical expert reports by 15 December 2006; and (3) witness statements by 15 January 2007.
At the time, the defendant applied for springing orders, but I declined to make such orders. Although on 27 November 2006 I declined to make any springing orders I warned the plaintiff that if she did not comply with the programming orders that, when the matter came back before me on 19 December 2006, I would make springing orders. I also dismissed the plaintiff's application to join the Fremantle Hospital as a further defendant and to allow her to sue in her personal capacity. The plaintiff made an application in the Court of Appeal for leave to appeal against these two decisions, and leave was refused. See 2007 WASCA 28.
By 19 December 2006 the plaintiff had still not complied with the programming orders. I accordingly on that date made a springing order that if the plaintiff did not comply with the programming orders for
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- discovery by filing a medical report by 8 January 2007, the plaintiff's claim be struck out and judgment be entered for the defendant. The matter was further adjourned to 30 January 2007.
I also indicated to the plaintiff that by 30 January 2007 she was required to comply with the programming order requiring her to file witness statements which, according to the programming order made on 27 November 2006, were required to be filed by 15 January 2007. She agreed that she would be able to do this. See transcript page 53. Mrs Avsar lodged an appeal against the programming order I made on 27 November 2006 and the springing order I made on 19 December 2006, but these were also dealt with by the Court of Appeal that dismissed her application in a decision delivered on 31 January 2007. See Avsar v Westland Healthcare (2007) WASCA 28.
The plaintiff filed an affidavit of discovery on 8 January 2007. That is complying with the springing order insofar as discovery was concerned. On 30 January 2007 the matter came before me again. By this time there was pending before the Court of Appeal the decision which was ultimately handed down on 31 January 2007, so I adjourned the matter to 15 February 2007.
The plaintiff vigorously opposed the relisting of the matter before me on 15 February 2007 on the grounds that (a) her son was going to boarding school and she needed time to get him ready with uniform, books, et cetera; and (b) she needed time to spend with her husband. I was not prepared to delay listing of the case management appearance before me as further delays in noncompliance would jeopardise the trial dates set.
The plaintiff wrote a letter to the court dated 31 January 2007 seeking to vacate the listing on 15 February 2007 and requested it be listed before me on 21 February 2007. In response to this request the Court wrote to Mrs Avsar rejecting the request. On 31 January 2007 Mrs Avsar filed an application that the time for compliance with the springing order be extended and the springing order be set aside. This application was listed before me on 12 February 2007. Mrs Avsar subsequently wrote to the Court asking this day be vacated and requested a hearing after 21 February 2007.
On my instructions, the listing on 12 February 2007 was vacated but was relisted on 15 February 2007. On 15 February 2007 Mrs Avsar failed to appear. The defendant's counsel indicated the defendant was anxious to maintain the trial dates and therefore it did not oppose the setting aside of the springing order and new programming orders being made. On 21 February 2007 the matter came back before me and I set aside the springing orders and made further orders of programming.
On 21 February 2007 I also made an order for the plaintiff to provide inspection of her discoverable documents to the defendant, including providing photocopies at the defendant's expense. When the plaintiff's
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- current application for an extension of the programming orders, and effectively an adjournment of the trial, came before me on 2 March 2007 Mrs Avsar provided me with the following further information from the bar table about her application.
She intended to call at the trial of the preliminary issue, the following witnesses: (1) Dr Michael Brown, a GP who was treating the deceased before her death. Dr Brown resides out of the state of Western Australia and no firm arrangements had been made for his attendance to give evidence on 12 March 2007. (2) A nurse, Ms Judy Smith, to give evidence of the care of the deceased before her death. (3) Dr Naik who resides in India, who is a cardiologist and who is to give evidence as to the cause of death. (4) Two or three unspecified Turkey medical experts, who will give evidence as to the cause of death. Mrs Avsar says she has Turkish written medical reports but these have not yet been translated into English.
Fourthly, four unspecified doctors; one from Queensland and three from South Australia. The Queensland doctor has agreed to provide a report for $1,500, of which Mrs Avsar has paid $1,000. The other three doctors are requiring $2,000 each for reports required. Despite requests from me on 2 March 2007 Mrs Avsar declined to identify these doctors as she did not believe she should do so without having obtained reports from them.
Mrs Avsar proposes that all the doctors give evidence by way of video-link. She has made an application by Chamber summons dated 27 November 2006 for evidence of witnesses to be taken by video link, but as yet this has not been dealt with, as prior to 2 March 2007, she failed to comply with orders requiring her to provide a list of the names of the doctors she intended to call and for whom she required a video-link. There are reports from Dr Brown, Ms Judy Smith and Dr Naik which were included in the plaintiff's list of discoverable documents but which the plaintiff had refused to allow the defendant's solicitors to inspect prior to 2 March 2007, despite orders from me.
Mrs Avsar says that she does not have funds available to pay for the medical reports she requires, the costs of the various doctors attending the trial, the cost of booking video-links for overseas and interstate doctors to give evidence, the cost of translating reports from Turkish doctors. The plaintiff states that she has sought the opinion from Turkish doctors when residing in Turkey for a period of time after her mother's death. She obtained an opinion from Dr Naik in India because she comes from India and has relatives in India.
I hazard a guess that Mrs Avsar will require somewhere in the vicinity of $15,000 to $20,000 to cover all the expenses of going to trial. At the moment she claims no prospect of paying this amount. She says that she may be able to borrow monies from relatives in India, but has not approached them as yet. In her affidavit in support of her application for an extension she says that her son had previously provided financial
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- assistance to her in pursuing the action but due to business commitments he is no longer willing or able to provide assistance.
On 2 March 2007 Mrs Avsar indicated to me that the reason why she had not filed witness statements from nonexpert witnesses was that she did not think that she would need to call any nonexpert witnesses but would confine the evidence she produced to the evidence of the doctors she nominated. Later she indicated to me that she did not understand exactly what was required by way of providing witness statements. This is notwithstanding that I had clearly explained to her what was required. See transcript of the appearance before me on 29 August 2006.
As I mentioned earlier, the plaintiff filed today a list of proposed witnesses which, contrary to the indications on 2 March 2007, now numbers at least 54 witnesses. The plaintiff's application for an extension of time on the programming orders and therefore effectively adjournment of the trial, comes in the context that she has persistently resisted the trial of the preliminary issue, giving a variety of reasons, including: (a) that there should not be a listing of the trial of the preliminary issue until her appeals were disposed of. Both appeals to the Court of Appeal have now been disposed of but there remains an outstanding appeal by way of an application for the High Court. (b) the trial should not proceed without the pleadings as to damages being finalised; and (c) the recent heavy workload with appeals to the High Court have given her insufficient time to consult witnesses and seek independent legal advice. These grounds are repeated and set out in her Chamber summons in support of her application for the extension of time and in addition to the ground that she now has insufficient financial resources to cover the cost of the trial.
I now need to direct my mind to the relevant legal principles. The starting point is that I need to take into account the fact that Mrs Avsar is unrepresented and as such suffers an obvious disadvantage. I believe the correct approach to be taken is set out in the decision of Rajski v Scitech Corporation Butterworths Unreported Judgments 16 June 1986 NSWCA Samuels JA at page 14, where he said as follows:
In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to …….. state of status, would be quite unfair to the represented opponent.
In this case the Court has been, in my view, particularly indulgent allowing two prior adjournments of the trial. However, ultimately the Court cannot conduct the claim of the plaintiff for her. When I first took over the case management of this action in May 2005 I made it clear I intended to list the trial in 2006. Throughout most of 2006 the plaintiff has been aware that she needed to get ready for trial in 2006. As it was, the trial of the preliminary issue was listed in November 2006 and then. subsequently as mentioned listed in March 2007. The extent to which a Court can grant an indulgence to an unrepresented litigant must be tempered by the case management principles set out in Order 1, rule 4(a) and 4(b) of the
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- Supreme Court rules. These principles are worth setting out in full, and they are as follows, rule 4(a):
The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.
Rule 4(b):
Actions, causes and matters in the court will, to the extent that the resources of the court permit, be managed and supervised in accordance with a system of positive case flow management, with the objects of (a) Promoting the just determination of litigation; (b) Disposing efficiently of the business of the court; (c) Maximising the efficient use of available judicial and administrative resources; (d) Facilitating the timely disposal of business at a cost affordable by the parties.
Then subrule (2) says:
These rules are to be construed and applied, and the processes and procedures of the court conducted, so as to best to ensure the attainment of the objects referred to in paragraph 1.
The power of a Judge to order an adjournment of the trial is contained in order 34, rule 4 of the Supreme Court rules, which provides as follows:
A Judge may, if he thinks it expedient in the interests of justice, adjourn a trial to such time and to such a place and upon such terms, if any, as he thinks fit.
The discretion should be exercised taking into the case management principles I have alluded to. If a party fails to prepare in time then the Court is concerned to balance the prejudice to the parties which arises from the adjournment and the public interest in proper use of Court resources provided for the administration of justice. In this action it must be remembered that this is the third time the trial has been listed. The current trial is listed for five days and to adjourn the trial again is a significant waste of resources. There is also the issue of prejudice to the defendant, which I will speak of shortly.
Of course the waste of Court resources and the conflict with the case management principles must be balanced against the ultimate aim of the courts to attain justice. In Queensland v J.L. Holdings Pty Ltd (1996) 189 CLR 146, Dawson, Gaudron and McHugh JJ in their joint judgment emphasised that case management principles should not be employed to shut out a party from litigating a relevant issue which is fairly arguable,
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- except perhaps in extreme circumstances. At page 154 in their judgment, they stated as follows:
Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation but it is always to be borne in mind, even in changing times, that the ultimate aim of a Court is the attainment of justice and no principle of case management can be allowed to supplant that aim.
Of course the attainment of justice must also take into consideration the consequences of an adjournment to the other party in this case the defendant. The relevant consideration is whether a cost order, or the imposition of other conditions, could adequately balance the competing claims to justice. See Kirby J in Queensland v J.L. Holdings Pty Ltd at page 170. In this case, there is little prospect of the plaintiff being in a position of providing security for costs or paying any costs awarded to the defendant. One of the grounds for the plaintiff seeking an extension of time is her impecunious state and there is no immediate prospect of that situation changing. Further, the defendant will be calling at the trial a number of expert medical witnesses (I am told two). Arrangements have already been made for these medical witnesses to attend to give evidence. One witness will give evidence by way of a video link. Accordingly, an adjournment will cause an inconvenience to these witnesses. These are all factors which I need to consider.
I am very conscious of the fact that the effect of a decision not to allow Mrs Avsar an extension to the programming order will effectively prevent Mrs Avsar from presenting her case at trial listed on 12 March 2007. However, I conclude that this is a case which comes within what the High Court in Queensland v J.L. Holdings would describe as an extreme circumstance. It cannot be ignored that this action has been progressing for over 10 years, and that two trials have already been adjourned at the request of the plaintiff.
Further, I am satisfied Mrs Avsar by her failure to give inspection of documents required, her failure to file reports as requested and her failure to file any witness statements, has sought to frustrate the programming orders that I have made and the trial of the preliminary issue proceeding. Regrettably, I feel to do justice in this matter I must conclude enough is enough, and reject the plaintiff's application. Over a period of 10 years she has had more than an adequate opportunity to prepare her case for trial and in particular to the critical issue of whether her mother's death was caused by the overdose of insulin.
I believe a significant injustice will be caused to the defendant if the trial was further adjourned which cannot be remedied by a costs order. The defendant after all this time is entitled to have a resolution of the issue of its liability. Accordingly I dismiss the application for an extension, the effect of which will be that the trial will proceed on 12 March 2007. If the
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- plaintiff is unable to produce evidence at the trial then it will be a matter for the trial judge to decide the consequences.
The trial of the preliminary issue
9 At the commencement of the trial of the preliminary issue before Judge Keen on 12 March 2007, Mrs Avsar produced an affidavit in support of an application for orders that the trial of the preliminary issue take place in South Australia. This application was dismissed. Judge Keen gave oral reasons for his decision as follows:
In that application the plaintiff asked that the trial of the preliminary issue be dealt with in Adelaide, South Australia, and sets out a number of grounds in relation to her husband who is seriously ill. In it she says, at paragraph 3:
The plaintiff needs to care for her seriously ill husband in her family home in Gawler in the State of South Australia. The plaintiff's husband has recently been discharged from hospital overseas, having had a brain haemorrhage operation and is in want of full time care in his family home which only the plaintiff is able to give him. This is impossible to do in Perth, Western Australia, where the plaintiff does not have a place of permanent residence.
I don't propose to go through the whole of the rest of the grounds set out, save to note that the plaintiff also wishes to lead evidence from expert witnesses in Adelaide, South Australia. During the course of this hearing today I canvassed with the plaintiff the problems in relation to the transfer of these proceedings to South Australia.
It seemed to me that there was no jurisdiction to do so. The Jurisdiction of Courts (Cross Vesting) Act 1987 does not provide any such jurisdiction Section 5(2) might provide for a transfer of proceedings from one Supreme Court to another in another state where there is some related proceedings. There is no such matter here. Indeed, if this matter were to be transferred under that act, it would, first of all, have to be transferred to the Supreme Court as a first step.
In my view, nothing in that act provides for the transfer of these proceedings to South Australia and there is no other power to transfer the same. Upon questioning Ms Davis also confirmed that that was her understanding of the position. There is provision, of course, for taking evidence elsewhere in Western Australia pursuant to section 110 of the Evidence Act. There is no supporting affidavit in favour of such an application, even if it were to be made.
It has not been made and there is certainly no undertaking in relation to costs as is set out in form 29 of the rules. There is no proper application in that regard. That disposes of the way in which the application is addressed,
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- namely that it be dealt with in Adelaide in the sense that as far as I am concerned I have no power to transfer the matter. Today, to further advance her application for this matter to be adjourned, Ms Avsar also said that she needed to assist her husband and her husband's condition was more pressing.
She said that she had to be near her husband. It transpires that he is still in Turkey. I only mention this because paragraph 3 of her application didn't say that. If I have missed it elsewhere in the application, then so be it but it appears that he is in Turkey where he has been receiving medical treatment. It seems that he has an open ticket to come home and could come home at any time. A letter was produced from some Turkish general practitioner saying that the plaintiff's husband was in need of care.
That was only received, according to the plaintiff, on Sunday from her daughter. It is dated 1 March 2007. Nevertheless, this business about her husband being in Turkey and receiving medical treatment and being in need of medical care was not a matter that was raised or pressed before Judge Sleight last week. I pressed the plaintiff in relation to this and the plaintiff's answer as to why it was not pressed on that occasion was most unsatisfactory. I told her she could not split her case in this way and if it was a matter that was important today, it seemed to me that it would have been a matter that would have been just as important last week.
Ms Davis opposes the application for an adjournment on a number of grounds. I don't propose to go through those grounds in detail, suffice it to say that the history of this matter shows that the plaintiff has been given trial dates from time to time. They have been adjourned at her request. Judge Sleight has quite rightly pointed out last time the public interest elements involved in the trial process and I have said to the plaintiff today that these trial dates have been allocated to the plaintiff at the expense of other persons waiting to utilise the services of this court.
It seems that the plaintiff is not ready for trial and she has in fact candidly said as much. It seems that on 2 March she advised the court of only a number of experts that she intended to call. Nevertheless, she has not provided the names of some of those experts and on 6 March she filed a much more extensive list of witnesses, both lay and expert. I understand from her today that she intends to limit those witnesses.
I indicated earlier that the plaintiff had an application in to have the evidence of the witnesses taken by way of video-link. She had been ordered to provide details of those witnesses for the video link and she has not provided them. Ms Davis tells me that the trial of the preliminary issue can proceed today and there are some documents and some material within the plaintiff's statement of evidence dated 12 March 2007 which could be tendered without opposition. Some of that is of a medical or quasi medical nature in the way of medical records and the hospital and nursing home records. Against that, Ms Avsar says that she doesn't have expert reports
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- To come to court today asking for a five day trial, which has been listed since November of last year and against the background of his Honour Judge Sleight having refused just such an application on 6 March, is most unsatisfactory The courts cannot function against such a background or cannot function efficiently. The courts in this state and elsewhere are under pressure so far as giving appropriate time where litigants are concerned. It's for these reasons that case management has become a feature of the courts
I am conscious that case management should not play a superior role to the attainment of justice. I'm conscious of what the High Court has had to say in relation to such matters in the well known case of Queensland v JL Holdings Pty Ltd (1986) 189 CLR 146. Nevertheless, there comes a time that the balance has to be addressed; that is to say, the balance between the attainment of justice both for the plaintiff and for the defendant. The defendant has been kept out on a trial for an inordinate length of time and the time has now come when the defendant's interests need to be carefully considered in the balance.
I am of the view that the plaintiff has utilised as much of the discretion of the court as could be expected to become available to the plaintiff in relation to the trial dates and I'm not prepared on this occasion to exercise my discretion to adjourn the matter further. The defendant is entitled to have this matter brought on for trial and the trial will proceed today, so accordingly the application that is made to transfer this matter to South Australia and the implied application that goes with it to adjourn this trial are both refused.
- The action then commenced and Mrs Avsar remained present in court on that day.
10 At the conclusion of the evidence on that day, there was discussion between the trial judge and Mrs Avsar about the next day's proceedings and what time the court should start. An early start time was set for 10 am to allow Mrs Avsar an opportunity to bring further information about the witness she wanted to call from South Australia.
11 On the second day of trial, 13 March 2007, Mrs Avsar did not appear at 10 am. At 10.55 am, the trial judge called the matter on and advised that Mrs Avsar had filed an application to the Court of Appeal for a stay of the trial and the matter was stood down so that inquiries could be made with this court in relation to the stay application. When the trial judge reconvened the court, his Honour was told about the outcome of inquiries which was that no stay application had been heard in the Court of Appeal. The trial judge then decided that he would adjourn the trial until 2 pm and attempts were made by the respondent's solicitors to contact Mrs Avsar. The trial resumed at 2 pm and the second day of trial was completed at
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- approximately 3.30 pm and adjourned until the following day at 10 am. The next day, 14 March 2007, Mrs Avsar did not appear and material was provided to the trial judge by the respondent in an affidavit outlining the attempted telephone calls, faxes and letters sent by courier to Mrs Avsar advising her that the trial would be proceeding. The respondent then called its last witness and closed the respondent's case. The judge advised that he would hand down his decision on Thursday 15 March 2007. On that day, the associate to the trial judge advised the solicitors for the respondent that Mrs Avsar had filed two applications which the trial judge said he would hear that afternoon at 2.30 pm. They were applications for evidence of a witness to be taken by video-link and the other application was an application to adjourn the trial. These applications were heard on the afternoon of 14 March 2007. The affidavit of Ms McGrath referred to above in par 99 reads:
I attended court that afternoon with Ms Davis for the hearing of Mrs Avsar's application. During the course of this hearing Mrs Avsar gave various and conflicting reasons as to why she had not attended the trial on day two and day three, including that she had been at the Federal Court to collect documents, had been arranging travel for her son to fly to Turkey to be with her husband and look after him, and that she had suffered from a blood nose. After hearing from both Mrs Avsar and Ms Davis for the Respondent the Trial Judge delivered detailed oral reasons and dismissed both applications.
13 On 15 March 2007 there was no appearance for Mrs Avsar. The trial judge then ruled that the trial had closed and gave reasons for judgment dismissing Mrs Avsar's claim with costs.
Mrs Avsar appeals, the respondent applies to strike out the grounds, Mrs Avsar seeks an adjournment
14 Mrs Avsar's appeal has 27 grounds. The respondent applied to strike out the grounds. Affidavits were filed by both parties and submissions
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- were filed by both parties. The application was listed for hearing on 19 October 2007.
15 On 4 October 2007, Mrs Avsar wrote asking for the proceedings to be deferred on the basis of injuries suffered in a motor vehicle accident. Mrs Avsar was directed to file an affidavit with a doctor's certificate to verify this and with advice from Mrs Avsar that the doctor would be available to give evidence on 19 October 2007. A doctor's certificate was obtained from a Dr Turner, which did not certify that Mrs Avsar was unable to attend court. By providing the doctor's certificate the assumption was made that the doctor was available to give evidence. An associate of this court wrote to Mrs Avsar on 15 October 2007 advising her that this was the assumption and that Dr Turner would be contacted to make arrangements about the telephone conference. The associate then took steps to speak to Dr Turner. What was said to the associate by Dr Turner was recorded in a file note made by the associate which was subsequently provided to the members of this court and read in court at the hearing on 19 October 2007. It read:
On 17 October 2007 I called the number stamped on the medical note in Mrs Avsar's affidavit. I asked to speak to Dr Turner, the doctor who had signed the note. I was put through to Dr Turner who explained that she was not Mrs Avsar's regular doctor but that when Mrs Avsar came to the clinic on Monday asking for a medical certificate which she needed 'that day', her regular doctor, Dr Edwina Allen, was unavailable.
Dr Turner agreed to sign the note based on the medical notes in Mrs Avsar's file. Dr Turner said that Mrs Avsar was 'very difficult' to deal with and insisted that the note be reworded to say what she wanted it to say. Dr Turner suggested that I speak to Dr Allen as she, Dr Turner, was not familiar with Mrs Avsar's medical condition. I was then put on hold, after which a receptionist told me that Dr Allen was not available and would not be back in the clinic until Monday. I asked if she had any other way of contacting Dr Allen but was informed that there was not.
16 On 18 October 2007, the associate wrote to Mrs Avsar in the following terms:
I refer to my letter to you dated 15 October 2007. In accordance with that letter and the directions of Pullin JA, I attempted to contact the doctor who signed the medical certificate attached to your affidavit of 15 October 2007. The results of my inquiry are documented in the attached file note.
In the light of that inquiry and the resulting non-compliance with Pullin JA's orders made on 5 October 2007, I am advising you that it should not be assumed that the matter listed for Friday will be adjourned.
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17 The letter enclosed a copy of the file note which is referred to above. Subsequently the associate telephoned Mrs Avsar to ask whether she had received the correspondence. Mrs Avsar said she had not and the associate read the letter dated 15 October 2007 to Mrs Avsar. This fact was reduced also to a note by the associate who provided it to the members of the court and the content of the note was read into the transcript on 19 October.
18 The members of the court were also informed that on the morning of 19 October 2007, Mrs Avsar had telephoned the associate to the President of the Court of Appeal (the President was not due to sit on the appeal) and said she wanted an adjournment of the hearing and also sent a facsimile to the Principal Registrar asking for an adjournment. When the hearing commenced on 19 October, Mrs Avsar was called but she did not appear. The above history was then related in the court and transcript and a direction was given that Mrs Avsar should be sent a copy of the transcript and she should be given a further seven days to make further submissions.
19 It may be observed that there was no credible material before the court that Mrs Avsar was unable to attend court on 19 October 2007. It may be accepted that Mrs Avsar had received some injuries but the court is not satisfied that Mrs Avsar was unable to attend on 19 October 2007.
20 Mrs Avsar has taken the opportunity to make further written submissions. She had also taken the opportunity to file two further affidavits. One is from her daughter-in-law concerning what the daughter-in-law observed about Mrs Avsar on 12 to 16 March 2007. No leave was sought to lead this evidence and it must be disregarded. The other is an affidavit sworn by Mrs Avsar in which she quotes from the transcript of the hearing before this court on 19 October. The quote concerns the observation of the court that there was nothing by way of medical evidence or any sworn evidence that Mrs Avsar was unable to attend the court. Mrs Avsar, in her affidavit, has exhibited a letter dated 21 October 2007 from the Outpatient Department of the South Metropolitan Area Health Service advising that a referral dated 15 October 2007 had been received 'for' Mrs Avsar. The letter states that Mrs Avsar would be advised of an appointment 30 days prior to her appointment. The affidavit also exhibits two photographs which are said to be photographs of Mrs Avsar taken on an unknown date, showing some sign of injury to her forehead and perhaps some bruising around one or both eyes. None of this material establishes that Mrs Avsar was not able to attend court on 19 October 2007.
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21 In the written submissions, the only point taken in relation to the associate's account of the of the conversations with Dr Turner and Mrs Avsar is that Mrs Avsar denies saying that she was willing to have the matters dealt with on the papers. It is not possible to resolve that conflict, so the court will proceed on the basis that Mrs Avsar did not make such a statement.
22 That does not, however, alter the fact that there was no evidence which satisfies the court that Mrs Avsar was unable to attend court on 19 October 2007 and that there was therefore no basis for her request for an adjournment. As a result, the refusal of the court to adjourn the respondent's application to strike out all the appellant's grounds of appeal must be confirmed.
Grounds of appeal
23 It is not necessary to go laboriously through the 27 grounds. The grounds fall into several groups. Some of the grounds complain about decisions which had been made disallowing Mrs Avsar's attempts to amend the statement of claim to plead a claim for damages for personal injuries to Mrs Avsar, to bring claims on behalf of her children and to join the Fremantle Hospital. All of these points have been determined against Mrs Avsar in Westland Healthcare Ltd v Avsar [2006] WASCA 230 and Avsar v Westland Healthcare Ltd [2007] WASCA 28, which were the subject of unsuccessful special leave to appeal applications brought by Mrs Avsar in the High Court. Other grounds complain about procedural matters and about an alleged failure to comply with rules about pre-trial conferences and mediations and being denied a pre-trial conference and mediation, even though Ms McGrath's affidavit shows that both a pre-trial conference and mediation did take place. Some grounds contain complaints about the absence of a listing conference and notice not having been given to Mrs Avsar about trial dates, but a listing conference was held according to Ms McGrath, and there are other complaints made about orders concerning inspection of documents. None of these grounds in any way assist in challenging either Judge Keen's decision on the merits or on the applications for adjournment.
24 Other grounds complain about the two decisions of Judge Keen refusing to adjourn the trial. These grounds incorporate arguments that the trial should not have proceeded once she had filed her applications for special leave to apply to the High Court against this court's decisions, and should not have proceeded once Mrs Avsar appealed against Judge Sleight's refusal to adjourn the trial on 6 March 2007. There is also a
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- complaint that the trial should not have proceeded once Mrs Avsar had filed an application for a stay with the Court of Appeal on 13 March 2007. None of these points demonstrate any error in Judge Keen's decision to refuse to adjourn the trial.
25 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.
26 There are no grounds directed to the merits of the decision by Judge Keen whereby he dismissed the claim that negligence by the respondent had caused the deceased's death.
27 As a result, none of the grounds of appeal have any prospects of success and the interlocutory decisions under review have not been shown to be wrong or attended with any doubt. As a result, all the grounds of appeal should be struck out on the basis that they have no reasonable prospects of success. Leave to appeal against the interlocutory decisions should be refused. In consequence the appeal should be dismissed.
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