Crerar v Parkes (No 2)
[2005] TASSC 93
•26 September 2005
[2005] TASSC 93
CITATION: Crerar v Parkes (No 2) [2005] TASSC 93
PARTIES: CRERAR, Allison
v
PARKES, Scott
VANDERSLINK, Gerald
STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 83/2003
DELIVERED ON: 26 September 2005
DELIVERED AT: Launceston
HEARING DATE: 31 August 2005
JUDGMENT OF: Crawford J
CATCHWORDS:
Procedure – Costs – Departing from the general rule – Other cases – Indulgence of court – Successful application to extend time under Limitation Act – Applicant unaware of possible claim until after time expired – Whether indulgence of court sought.
Aust Dig Procedure [598]
REPRESENTATION:
Counsel:
Plaintiff: D J Porter QC
Second Defendant K B Procter SC
Third Defendant: P Turner
Solicitors:
Plaintiff: Worsley Darcey & Associates
Second Defendant: Murdoch Clarke
Third Defendant: Director of Public Prosecutions
Judgment Number: [2005] TASSC 93
Number of paragraphs: 12
Serial No 93/2005
File No 83/2003
ALLISON CRERAR v SCOTT PARKES, GERALD VANDERSLINK
and STATE OF TASMANIA (NO 2)
REASONS FOR JUDGMENT CRAWFORD J
26 September 2005
On 3 March 2003 the plaintiff filed an application for an order extending time in which she might commence an action against the defendants. At the same time she filed a writ by which she commenced the action. The endorsement of claim stated that she was claiming damages for personal injuries suffered as a consequence of the negligence, breach of agreement and breach of statutory duty of the defendants between 3 March 1997 and October 2000. Because of the provisions of the Limitation Act 1974, s5, her claim with respect to a cause of action that arose prior to 3 March 2000 was barred unless she obtained an extension of time in which make it. The first defendant did not seek to rely on the limitation defence. The second and third defendants did so. Accordingly, upon the hearing of the application, the plaintiff did not pursue an order against the first defendant.
Following the hearing of the application, I ordered, on 7 July 2005, that the time within which the plaintiff might commence proceedings against the second and third defendants for damages suffered as a consequence of negligence or other breach of duty on or after 30 April 1998 was extended until 3 March 2003, which was the date of the writ. See Crerar v Parkes [2005] TASSC 63. So far as time was concerned, she gained an extension beyond the primary three year limitation period of about one year 10 months. I did not extend time with respect to a date prior to 30 April 1998 because I was not satisfied that she had demonstrated that she had an arguable case for anything that occurred earlier than then.
The plaintiff applied for an order that the second and third defendants pay her costs of the application. She sought in the alternative, that the costs of the application of the parties be costs in the action. The second and third defendants applied for orders that the plaintiff pay their costs of the application.
There was no dispute between counsel on matters of principle:
1I have an unfettered discretion concerning costs, subject to my duty to do justice between the parties having regard to the circumstances of the case.
2Usually costs follow the event, so that if an application is successful an order for costs is made in favour of the applicant.
3However, "ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable." Holt v Wynter (2000) 49 NSWLR 128 at 147 – 148. The principle is sometimes expressed as one that as a general rule, a party who seeks a dispensation, indulgence or favour of the court will be ordered to pay the other parties' costs resulting from the application.
Counsel for the plaintiff advanced a number of arguments for his client. I will refer to some of them. He submitted that her application was substantially successful (although unsuccessful with respect to the period between 3 March 1997 and 30 April 1998, a period of about 14 months). He also submitted that this was not a case of the Court granting an indulgence or favour to her, and that between her and the defendants she ought not to be held responsible for her claim falling outside the primary limitation period of three years. Further, it was submitted that the defendants actively resisted what was plainly a meritorious application and that orders for costs should not encourage such conduct with an expectation that costs will be awarded against the applicant. Bladel v Russell Allport Pty Ltd unreported 106/1964. Indeed, if the opposition is unreasonable, intransigent and thorough, the person who opposes may be ordered to pay the costs. Re Australasian Memory Pty Ltd; Brien v Australasian Memory Pty Ltd (2000) 34 ACSR 158; Nardell Coal Corporation (In Liquidation) v Hunter Valley Coal Processing (2003) 178 FLR 400 at 436. It was pointed out that the second defendant did not merely put the plaintiff to proof concerning the merits of her application. He called expert evidence that challenged the evidence of the plaintiff's expert that supported an arguable case on the issue of liability against the second defendant, and his counsel aggressively challenged the plaintiff's expert in cross-examination. It was submitted that the third defendant's counsel used the hearing of the application as an opportunity to cross-examine the plaintiff and one of her expert witnesses, Associate Professor Lording, for the purpose of being better informed of her case at the trial and not for the purpose of genuinely opposing the application. It was pointed out that counsel for the third defendant made no closing address at the hearing of the application.
Counsel for the second defendant submitted that this is a case of an applicant seeking a dispensation, indulgence or favour from the Court after the passage of time had barred the relevant part of her claim. He submitted that the second defendant did not act unreasonably in opposing the application and that the usual order for costs should be made in favour of his client. He pointed out that the second defendant had not raised specific prejudice by reason of the delay in commencing the action and had opposed the application by testing the plaintiff's explanation for the delay and by seeking to show that she had no arguable case for liability against the second defendant.
Concerning the plaintiff's explanation for the delay, it was pointed out by counsel for the second defendant that in an affidavit of the plaintiff she asserted that she had given no thought to the question of a time limit and received no legal advice about the issue, whereas in an affidavit of her Victorian solicitor, Ms Read, it was asserted that time limits were canvassed initially in a general sense, although no written or specific advice was given. It was only in cross-examination that Ms Read resiled from her assertion and expressed the belief that she had been mistaken and that she probably made no mention to the plaintiff of a time limit in terms of a specific period of time. It was also pointed out that the plaintiff indicated in an affidavit that by late 2000, or thereabouts, she thought that she might be entitled to the payment of compensation by a medical practitioner arising out of the failure to diagnose the cause of her considerable suffering earlier than October 2000, and at that time she was still within the primary three year limitation period that commenced on 30 April 1998. It was also pointed out that my finding that the plaintiff had shown an adequate explanation for the delay was based on evidence that arose out of cross-examination of the plaintiff and not on evidence in her affidavits.
Concerning the issue of an arguable case against the second defendant, his counsel pointed out that no mention was made by the plaintiff in either of her affidavits in support of the application of her discovery that she might have a cause of action against him because of his failure to ensure that she underwent a synacthen test on or shortly after 30 April 1998. My understanding of what counsel submitted was that it was not until April 2004 that the plaintiff asserted that she may have had an arguable case against the second defendant arising out of his likely knowledge on or about 30 April 1998 that the synacthen test had been recommended at the Launceston General Hospital and his subsequent failure to ensure that the recommendation was followed up. Until then, the basis of the plaintiff's claim against the second plaintiff was unclear, it was submitted. It was also argued that the strength of any case the plaintiff might have been able to argue against the second defendant was questionable. In particular, an expert witness for the plaintiff, Associate Professor Lording, who swore an affidavit in support of the application, had indicated in a report that it would be hard to blame the second defendant for the failure to diagnose the plaintiff's condition. It was not until September 2004 that the plaintiff presented an affidavit by Dr Stewart, who expressed the opinion that the second defendant could be held liable, but it was submitted that Dr Stewart's expertise to express an opinion about the matter was questionable, his specialty being as an occupational physician. To counter his opinion, the second defendant had available to him the opinion of Dr Walters, a general practitioner with impressive credentials, that the second defendant could not be blamed for the failure to ensure that the synacthen test was performed. It was argued that the second defendant reasonably challenged the issue of an arguable case at the hearing.
Counsel for the third defendant adopted the submissions of counsel for the second defendant concerning the plaintiff's explanation for her delay in suing. He submitted that in the circumstances it was reasonable for his client to test the explanation that she had not understood there was a time limit. Concerning the issue whether there was an arguable case against the third defendant, he submitted that he had merely sought to test the evidence for the plaintiff, given inconsistencies between the views expressed by Associate Professor Lording and Professor Stockigt and the lack of detail in the former's affidavit. Counsel for the third defendant had directed some cross-examination to the question whether the plaintiff's condition ought to have been diagnosed prior to April 1998, and he pointed out that the plaintiff was unsuccessful in having time extended to a date before then. He argued that the position of the third defendant at the hearing had not been unreasonable and that by the close of the evidence he had accepted that the application would succeed and declined to make a closing address.
As between the plaintiff on the one hand and the second and third defendants on the other, she ought not be considered to have been at fault in any way for her claim, based on what occurred on or about 30 April 1998, not having been commenced within time. It was not until time had expired that she became aware of the recommendation for the synacthen test that had been made that day by an employee of the hospital, for whom the third defendant was responsible. A copy of the discharge summary, noting that recommendation, was sent to the second defendant and he initialled it, apparently to indicate that he had read it. Therefore, it appears that the second and third defendants were aware of the recommendation but the plaintiff was not aware of it. It was fortuitous that she learned of it, over three years later, because the second defendant decided to leave Tasmania and made his records available to her to pass on to her next general practitioner. Upon perusing them she learned of the recommendation and that the fact of it had been communicated to the second defendant. She pointed out what she had discovered to her Victorian solicitor and reasonably committed the prosecution of any claim she may have had to that practitioner. She could not be regarded as being personally to blame for not discovering the possible cause of action until after the primary time limit in respect of it had expired. Justice does not require that she should be made to bear the responsibility for costs, between her and the second and third defendants, as a mere consequence of time expiring.
There was some merit in the submissions advanced for the second and third defendants concerning the reasonableness of their defences of the application. Nevertheless, they did actively oppose it and because I do not regard the plaintiff as being at fault for her claim being out of time, I do not see that this is a case for an order that she should pay their costs. It is just that the allocation of responsibility for the costs should depend on the outcome of her action. In making that determination I have also had regard to the fact that her application was not wholly successful, the eventual order only extending time for a cause of action that accrued on or after 30 April 1998, an extension for 14 months less than the plaintiff had sought.
It will be ordered that the costs of the application as between the plaintiff and the second and third defendants will be costs in the cause as between them. There will be a certificate for counsel.
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