Crombie v State of Tasmania
[1999] TASSC 55
•14 May 1999
[1999] TASSC 55
CITATION: Crombie v State of Tasmania [1999] TASSC 55
PARTIES: CROMBIE, Robert
v
STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: Original
FILE NO/S: 796/1995
DELIVERED ON: 14 May 1999
DELIVERED AT: Hobart
HEARING DATES: 6, 14 May 1999
JUDGMENT OF: Underwood J
CATCHWORDS:
[Edited reasons given orally]
REPRESENTATION:
Counsel:
Applicant: R E Hudson
Respondent: P Turner
Solicitors:
Applicant: Butler McIntyre & Butler
Respondent: Director of Public Prosecutions
Judgment Number: [1999] TASSC 55
Number of Paragraphs: 27
Serial No 55/1999
File No 796/1995
ROBERT CROMBIE v STATE OF TASMANIA
REASONS FOR JUDGMENT UNDERWOOD J
14 May 1999
This is an application made by the plaintiff for orders:
(a)that the time be extended for the bringing of an application for an order pursuant to the Rules of Court, O8, r1;
(b)that the writ of summons be renewed, pursuant to the same rule.
Towards the end of May 1992, the applicant was admitted as a patient to St Helen's Hospital. There, he underwent surgery at the hands of a medical practitioner, Mr David Muir. From the affidavit material read in support of these applications, it appears that the surgical procedure was successful, but that post-operative complications arose. In consequence of the post-operative complications, the applicant was transferred from St Helen's Hospital to the Royal Hobart Hospital on 30 May 1992. At the Royal Hobart Hospital, appropriate treatment required the introduction of a catheter. Medical opinion annexed to one of the affidavits read on this application states that the catheter was inserted into the sub-clavian artery when it should have been inserted into the sub-clavian vein. Subsequent to the insertion of the catheter, the applicant suffered a stroke which was likely to have been caused by a clot moving to the brain from the site of the catheter insertion. The medical opinion is to the effect that the stroke may well have occurred due to the insertion of the catheter into an artery instead of into a vein.
As a result of the stroke, the applicant suffered injury, loss and damage and consulted Mr Faulds, legal practitioner, for advice. According to the applicant's first affidavit, he was not then persuaded that his case was sufficiently strong to warrant the commencement of proceedings, and was told by Mr Faulds that he had seven years from the date of the insertion of the catheter within which to commence proceedings. Clearly, this advice was incorrect, but nothing turns upon this.
The applicant decided to consult a Sydney solicitor, Mr Fegent, who specialises in personal injury claims. This consultation occurred on 18 April 1995, the upshot of which was that Mr Faulds was instructed to institute proceedings on behalf of the applicant against Mr Muir, St Helen's Hospital and the Southern Regional Health Board, the last named then being the authority responsible for the management of the Royal Hobart Hospital. The writ and statement of claim were filed on 30 May 1995, the last day of the three year period prescribed by the Limitation Act 1974, s5(1).
At the time of the filing of the writ and statement of claim, the applicant was not anxious to proceed to service until he had obtained medical opinion which would indicate that he had a reasonable chance of success.
Mr Fauld's file was transferred to Mr Fegent's then Hobart agents, Messrs Piggott Wood & Baker, who advised Mr Fegent on 14 March 1996 that the writ should be served not later than 11 June 1996. This too, was an error, but it was corrected by a subsequent letter from Messrs Piggott Wood & Baker to Mr Fegent, in which the advice was that the writ should be served not later than 30 May 1996.
By 2 May 1996, it appeared that a decision had been made by the applicant to serve all defendants. His Sydney solicitors instructed Messrs Piggott Wood & Baker by letter dated 2 May 1996 so to do. Had the instructions been carried out, this application would not have been necessary. However, the instructions were not carried out.
In an affidavit sworn 3 June 1996, Miss Garrott of Messrs Piggott Wood & Baker, confirmed that she received instructions to serve the writs and deposed that upon receipt of such instructions, she made arrangements to file a notice of change of solicitors for the applicant from Mr Faulds to her firm. Apparently this was done. Miss Garrott deposes that after the notice of change of solicitors had been filed and served, she omitted to serve the writs, "due to oversight and pressure of work".
On 31 May 1996, Mr Fegent telephoned Miss Garrott to enquire whether the writ had been served and the oversight was thereupon disclosed. That same day, Miss Garrott filed this application which was, at that time, one day out of time.
Prima facie, as the application to renew the writ to enable it to be served was only one day out of time, an extension of time within which to make the application, authorised by the Rules of Court, O79, r7, should be granted. However, there would be no point in granting the extension of time unless the Court were minded to exercise its discretion in favour of the substantive application to renew the writ.
With respect to the proper exercise of the discretion to order renewal of a writ for a period not in excess of six months as provided by the Rules of Court, O8, r1, I direct myself in accordance with the principles set out by the Full Court of this Court in National Mutual Life Association of Australasia Ltd v Huddlestone & Anor 72/1997.
Although it is customary for applications to renew a writ to be made on an ex parte basis, this application was served upon all defendants. All appeared by counsel. When the matter first came on before me, counsel for Mr Muir and counsel for St Helen's Hospital advised me that matters had been resolved between the applicant and their clients and, in consequence, a notice of discontinuance was filed. Accordingly, in order to regularise the proceedings, the title of the action was amended to delete therefrom Mr Muir and St Helens Hospital and to substitute the State of Tasmania for the Southern Regional Health Board as it had been abolished in the period between the institution of proceedings and the application coming on for hearing before me.
With respect to this application, counsel for the State of Tasmania, Mr Turner, said that he neither opposed nor supported the making of the orders.
Upon the issue of whether or not the applicant has established a prima facie case against the State of Tasmania, I am satisfied from the affidavit material that he has established such a case against the respondent. No medical opinion evidence was put before me to contradict that expressed in the medical report annexed to the applicant's affidavit.
With respect to the issue of prejudice arising from the delay prior to the filing of this application on 31 May 1996, there are statements in the affidavits read on behalf of the applicant to the effect that the respondent has suffered none and there was no material to suggest that the applicant had suffered specific prejudice but, of course, the mere fact of delay itself will cause prejudice and in this respect I refer to the observations of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 and following.
The exercise of the discretion conferred by the Rules of Court, O8, r1, is proscribed by the requirement that before it may be exercised, I must be satisfied that reasonable attempts have been made to serve the writ or that there is other good cause for exercising the discretion. It is clear in this case that no attempt was made to serve the writ, but as at the date this application was filed, the inadvertence of the applicant's then Hobart solicitor is, in my view, sufficient good cause to enable the discretion to be exercised.
However, almost three years have passed between 31 May 1996, when the application was filed, and 6 May 1999, when the application came on for hearing before me. Until the filing of the notice of discontinuance on 6 May 1999, this application concerned three respondents. It was first called on for an ex parte hearing before the Master on 3 June 1996. The Master directed that it be heard inter partes and adjourned the hearing. In accordance with the direction, service was effected on all the respondents and the application next came on for hearing before the Master on 21 June 1996, but only one of the three respondents appeared by counsel. It was adjourned again. Authorities to inspect the applicant's medical records were sought by the solicitor for the then first defendant and had to be obtained. Theses were delivered on 9 July 1996 and by letter dated 11 September 1996, Miss Garrott wrote to Mr Fegent:
"As soon as Mr Muir's solicitors have inspected the medical records we will relist the application."
However, it appeared from the material filed in support of this application when it first came on for hearing before me, that very little was done thereafter to have this application determined. That affidavit material disclosed that there was an exchange of correspondence between Messrs Piggott Wood & Baker and Mr Fegent towards the end of 1997, the substance of which seemed to amount to an attempt to attribute and refute blame to the Hobart solicitors for the mishandling of the applicant's affairs. Little seemed to have been done to get this application on for a hearing. According to the Court record on the court file, there was no further hearing until 16 June 1997 when it was listed for hearing before Wright J, but after two minutes was adjourned sine die.
In September 1997, Mr Fegent wrote to the applicant advising him that it may be necessary to consider a professional negligence claim against the Tasmanian solicitors. The letter concludes with this paragraph:
"We realise that this must be extraordinarily frustrating for you as you seem to have been done badly by all Tasmanian solicitors with whom you have dealt, however we are attempting to rectify this situation and will keep you advised."
By letter dated 23 October 1997, Mr Fegent instructed the applicant's present solicitors to take over conduct of the action.
When I pointed out to Mr Hudson, who appeared for the applicant, that there was no explanation for the delay between the end of May 1996, when the application was filed, and the beginning of May 1999, when the hearing commenced before me, Mr Hudson sought an adjournment. On the resumption of the hearing this morning, a vast quantity of affidavit and other material was tendered by consent. In large measure, this material constitutes a chilling litany of incompetence and delay on the part of virtually all the applicant's legal advisers. However, that is not my concern except to say that it is clear that delay since the filing of this application has not been the making of the applicant. During this period there was, as Mr Hudson submitted this morning, considerable "activity". Most of the applicant's solicitor's dealings during this period were with the solicitors for the then first and third defendants. It appears that the respondent to this application was content to let these solicitors deal with the action and took no steps itself to bring the application to a hearing.
It is unnecessary to detail the events that occurred between May 1996, when the application was filed, and August 1997, when Mr Fegent terminated the agency contract with Messrs Piggot Wood & Baker and engaged the applicant's present Hobart solicitors. They are set out in Miss Garrott's affidavit sworn yesterday. This "activity" included inspection of medical records by the solicitors for the then first defendant and the filing and serving of an application to extend time to bring the action against the first and third defendants as inspection of the medical records disclosed that the writ claiming against those defendants was filed outside the time prescribed by the Limitation Act, s5(1).
Preparation for the application to extend time proceeded. At some time it was decided that the best course of action was to hear the application to extend time and this application at the same time. Of course, both applications were opposed and considerable court time was required to deal with both of them. In addition to delay caused by the need to get together material to support the application to extend time, there were several adjournments of allocated hearing dates due to inadequate court hearing time being available.
Between about September 1997 and 6 May 1999, the applicant's present Hobart solicitors have had carriage of the matter, either as agents for Mr Fegent in Sydney or as principals. Again, it is unnecessary to set out details of the "activity" of the Hobart solicitors during this period. They are set out in a chronology of events handed up by consent this morning. Throughout this period, it again appears that most of the contact was between the solicitors for the applicant and the solicitors for the then first and third defendants. There was also a great deal of correspondence between the solicitors for the applicant in Hobart and Mr Fegent in Sydney. There appeared to be confusion about who was responsible for various aspects of the applicant's application for an extension of time, particularly on the issue of a prima facie case.
Finally, on 18 September 1998, Mr Turner got hold of the file and wrote a sensible letter to Mr Hudson inquiring, in effect, just what orders the applicant sought. His letter concluded:
"As you can appreciate your client's action has been floating around for a number of years and the State of Tasmania at least, has no idea whether it will ever coalesce into a proceeding having teeth."
In response, Mr Hudson telephoned Mr Turner and told him that he was awaiting instructions but understood that the applicant would definitely proceed against Mr Turner's client but may not proceed against the first and third defendants. As I have mentioned, this eventually came to pass early this year, but only after the solicitors for the first defendant sought a hearing date for this application and the application to extend time and, accordingly, forced the matter to a head.
As I have said, the conduct of the applicant's legal affairs has been beset with incompetence and delay on the part of his legal advisers since he gave instructions to serve the writs, now a very long time ago, but none of it was of his making. In his evidence before me he explained that he kept in regular touch with his legal advisers to ascertain progress of his affairs, but found that he was often unable to understand "the jargon" of the advice he was given.
In the light of all of the foregoing, and particularly in the light of the absence of opposition to the making of the orders sought, I am persuaded that my discretion should be activated in favour of the applicant. As I said earlier, had this application been brought on for hearing in timely fashion, it is beyond question that an order would have been made because the application was then only one day out of time, as was the period within which the writs could have been served as of right. With respect to the delay since the filing of this application, I am satisfied that there is a reasonable explanation for it, in that it was largely due to the application to extend time to commence proceedings against the then first and third defendants being raised and conducted at the same time as this application. I suspect that this delay was contributed to by the failure of the applicant's legal advisers to come to grips with what needed to be done. However, I repeat, none of that was of the applicant's own making and, accordingly, there will be an order, firstly extending until 31 May 1996 the time within which the application may be made pursuant to O8, r1 and secondly, the writ will be renewed until 20 May 1999.
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