Fernando v Epworth (Want of Prosecution)
[2019] VSC 697
•18 October 2019 (ex tempore; revised)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2014 05360
| SARAH FERNANDO | Plaintiff |
| v | |
| EPWORTH HOSPITAL LTD (ACN 080 303 573) trading as Epworth Freemasons (ABN 98 080 303 573) | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 October 2019 |
DATE OF RULING: | 18 October 2019 (ex tempore; revised) |
CASE MAY BE CITED AS: | Fernando v Epworth (Want of Prosecution) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 697 |
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PRACTICE AND PROCEDURE – Application for dismissal of proceeding for want of prosecution – Medical negligence claim subject to multiple trial date vacations and interlocutory order breaches – Assessment of plaintiff’s capacity – Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 15 – Pistorino v Connell [2012] VSC 438 – Litigation guardian not required – Inordinate and inexcusable delay – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 24.01, 24.05 – Sullivan v Greyfriars Pty Ltd [2015] VSCA 196 – Chan & Ors v Chen & Ors [2013] VSC 538 – Civil Procedure Act 2010 (Vic) ss 7–9, 25 – Effluxion of time – No serious prejudice to defendant – Self-executing orders a just outcome.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Simon (solicitor) | Cottier Stenning Lawyers |
| For the Defendant | Mr M Martin (solicitor) | Moray & Agnew |
HER HONOUR:
By way of summons filed on 17 July 2019, the defendant seeks dismissal of the proceeding for want of prosecution. The plaintiff opposes the application.
Background
This proceeding is a claim of medical negligence in respect of surgery that occurred in August 2010. The proceeding was initiated in October 2014. Since then, the trial has been listed three times: 5 June 2017, 4 March 2019 and 22 July 2019. Each trial date has been vacated. The plaintiff has breached various interlocutory orders. Four different firms of solicitors have acted for her. There have been periods when the plaintiff was self-represented.
Summary
I disallow the application to dismiss for want of prosecution. I will however make self-executing orders that provide for dismissal of the proceeding with costs in the event of non-compliance with the orders.
Evidence
The plaintiff relies on the following affidavits:
(a) her own, sworn on 6 October 2019;
(b) Paul Simon, solicitor, sworn on 19 September 2019 (‘the first Simon affidavit’) and 11 October 2019 (‘the second Simon affidavit’).
The defendants rely on the affidavits of Michael Martin, sworn on 17 July 2019 (‘the first Martin affidavit’) and 15 October 2019 (‘the second Martin affidavit’).
Capacity
On the first return date of this application, namely 20 September 2019, I made orders requiring the plaintiff to file and serve an affidavit as to her current capacity or to make an application to appoint a litigation guardian prior to the next return date. In Other Matters of those orders I stated that a medical certificate should be exhibited to the affidavit. The plaintiff and her solicitor subsequently each filed affidavits. Medical reports were exhibited, but none directly addressed her current capacity to provide instructions. Her solicitor expressed the view that she has capacity.
Order 15 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’) provides for the appointment of a litigation guardian:
15.01 Definitions
In this Order, person under disability means—
(a) a minor; or
(b) a person who is incapable, by reason of injury disease, senility, illness or physical or mental infirmity, of managing that person’s affairs in relation to the proceeding.15.03 Appointment of litigation guardian
(1)A person may be a litigation guardian of a person under disability if the first-mentioned person—
(a) is not a person under disability; and
(b)has no interest in the proceeding adverse to that of the person under disability.
(2)Where a person is authorised by or under any Act to conduct legal proceedings in the name of or on behalf of a person under disability referred to in paragraph (b) of the definition of that term in Rule 15.01, the person so authorised shall, unless the Court otherwise orders, be entitled to be litigation guardian of the person under disability in any proceeding to which that person’s authority extends.
(3)Where after a proceeding is commenced a party to the proceeding becomes a person under disability, the Court shall appoint a litigation guardian of that party.
(4)Where the interests of a party who is a person under disability so require, the Court may—
(a) appoint or remove a litigation guardian; or
(b) substitute another person as litigation guardian.
(5)Where a party has a litigation guardian in a proceeding, no other person shall act as litigation guardian, unless the Court otherwise orders.
(6)Except where a litigation guardian has been appointed by the Court, the name of a person shall not be used in a proceeding as litigation guardian of a person under disability unless there is first filed in the office of the Prothonotary—
(a)the written consent of the person to be the litigation guardian; and
(b)a certificate by the solicitor for the person under disability certifying that the solicitor knows or believes that—
(i)the person to whom the certificate relates is a minor or is a handicapped person, giving the grounds of the solicitor's knowledge or belief; and
(ii) the litigation guardian of the person under disability has signed the written consent and has no interest in the proceeding adverse to that person.
In Pistorino v Connell, J Dixon J stated that the ‘means by which the court will determine whether a guardian should be appointed can vary from case to case’.[1]
[1][2012] VSC 438, [17] (‘Pistorino’), citing L v HREOC (2006) 233 ALR 432, 438 [26].
Ultimately, the court makes the decision concerning capacity.
Medical, psychological or psychiatric evidence will usually be important, but the final decision rests with the Court, not with the doctors, the lawyers, or the parties.[2]
[2]Ahmet v Jardine [2014] VSCA 52, [29] citing Goddard Elliott v Fritsch [2012] VSC 87, [562].
In Pistorino, J Dixon J outlined some of the relevant considerations:[3]
[3]Pistorino (n 1), [21]–[24] (citations omitted).
In relation to litigation in which a person is a party, the person must be able to understand the nature of the litigation, its purpose and its possible outcomes, including the risks in costs. As Kyrou J has observed, in Slaveski:
The question of incapacity in relation to litigation must be examined against the facts and subject matter of the particular litigation, the number and complexity of the issues involved and the identity, number and interests of the other parties, particularly opposing parties. A person can have the requisite capacity for one proceeding and lack it for another. Where a person is a party to a proceeding and is legally represented, he or she will be incapable of managing his or her affairs in relation to the proceeding if he or she does not have the mental capacity to understand the nature of the acts or transactions in respect of which he or she needs to give instructions to the lawyer.
In Owners of Strata Plan No 23007 v Cross, Edmonds J identified the following factors as relevant to determining whether one of the parties in that case (who was able to be legally represented) was a ‘person under disability’:
(a)whether the person had the ability to understand that he or she required advice in respect of the relevant legal proceeding;
(b)whether the person had the ability to communicate this requirement to someone who could arrange an appointment with an appropriate advisor or, alternatively, whether he or she could arrange such an appointment of his or her own accord;
(c)whether the person had the ability to instruct the advisor with sufficient clarity to enable him or her to understand the situation and to advise the person appropriately; and
(d)whether the person had the ability to make decisions and give instructions based upon, or otherwise give effect to, such advice as might be received.
These considerations are relevant on this application.
Although Kyrou J was concerned with an unrepresented litigant whose capacity was doubted after the trial of the proceeding had commenced, I am assisted on this application by a number of the factors that were identified as relevant considerations in Slaveski. They are:
(a)Does the plaintiff understand the factual framework for his or her claims and the type of evidence required to succeed in his or her claims?
(b)Is the plaintiff capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to him or her?
(c)Is the plaintiff capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties’ submissions and other developments in the proceeding as at the time the proposal is made?
Another relevant consideration was identified by the Full Court of the Federal Court in L v HREOC, when they approved what was said by the Court of Appeal in England:
There are valuable statements about the court’s power to appoint litigation guardians in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511. In substance, the purpose is to protect plaintiffs and defendants who would otherwise be at a disadvantage, as well as to protect the processes of the court. Kennedy LJ said (at [31]):
In the context of litigation, rules as to capacity are designed to ensure that plaintiffs and defendants who would otherwise be at a disadvantage are properly protected, and in some cases that parties to litigation are not pestered by other parties who should be to some extent restrained.
Chadwick LJ (at [65]) said:
The pursuit and defence of legal proceedings are juristic acts which can only be done by persons having the necessary mental capacity; and the court is concerned not only to protect its own process but to provide protection to both parties to litigation which comes before it. A defendant is entitled to expect that he will not be required to defend proceedings brought against him by a person of unsound mind acting without a next friend.
I have considered the affidavits, particularly the plaintiff’s affidavit and the second Simon affidavit. Mr Simon considers that the plaintiff has capacity. The plaintiff deposes as to physical and mental health conditions, but also to a witness that she proposes to call.
I have also considered the Expert Witness Statement of Dr Diane Neill, psychiatrist, dated 28 February 2019. Dr Neill opines that ‘the plaintiff is suffering from a somatic symptom disorder with predominant pain…’.[4] Dr Neill’s opinion is that the plaintiff ‘require[s] treatment for her psychiatric state…’.[5] There is no suggestion in Dr Neill’s report that a litigation guardian is required, although it should be emphasised that Dr Neill was not asked to provide an opinion in respect of this issue.
[4]Expert Witness Statement, Dr Diane Neill, dated 28 February 2019, [8.2].
[5]Ibid [9.6].
Based on the material above, I have formed the view that the plaintiff is not currently a person under a disability. Accordingly, at this point in time, a litigation guardian is not required.
Defendant’s submissions
The defendant made oral and written submissions.[6] Key submissions follow.
[6]See Epworth Foundation, ‘Submissions of the Defendant’, Submission in Sarah Fernando v Epworth Hospital Ltd (ACN 080 303 573) trading as Epworth Freemasons (ABN 98 080 303 573), S CI 2014 05360, 23 August 2019, filed on 23 August 2019.
The defendant says the plaintiff failed to adequately prosecute her case as demonstrated by the following.
Firstly, there has been inordinate and inexcusable delay on the part of the plaintiff to prosecute her case which enlivens the Court’s jurisdiction pursuant to r 24.05 of the Rules and s 25 of the Civil Procedure Act.[7] Further, the plaintiff has repeatedly, and without reasonable excuse, failed to comply with Court orders which enlivens the Court’s inherent jurisdiction to dismiss for want of prosecution under r 24.05 of the Rules and s 8 of the CPA. Particulars follow.
[7]2010 (Vic) (‘CPA’).
The plaintiff is in flagrant breach of five sets of timetabling orders since initiating this proceeding in October 2014. During this time the plaintiff was represented by solicitors.
The proceeding commenced on or about 3 October 2014 and is a claim for damages for alleged medical negligence arising out of a procedure that took place at the defendant’s hospital on 27 August 2010. The writ and statement of claim were not served until the last possible day, namely: 2 October 2015.
On 10 June 2016, the first set of timetabling orders were made, setting the proceeding down for trial on 5 June 2017. On 21 April 2017, the plaintiff’s then solicitors were given leave to cease to act, and the trial date of 5 June 2017 was vacated. At a subsequent directions hearing on 6 October 2017, the plaintiff appeared in person, and due to her submissions she was unwell, the directions hearing was adjourned until 2 February 2018.
On 2 February 2018, a second set of timetabling orders were made, setting down the proceeding for trial on 4 March 2019. There were breaches by the plaintiff of the timetabling orders. A new law firm began acting for her.
On 22 June 2018, a third set of timetabling orders were made. The plaintiff breached those orders.
On 26 October 2018, a fourth set of timetabling orders were made. The trial remained fixed for 4 March 2019. The plaintiff breached those orders.
On 4 March 2019, the trial was vacated by consent. It was relisted for 22 July 2019. A fifth set of timetabling orders were made. The plaintiff continued to be in breach of those orders. Her then solicitors ceased to act.
The plaintiff did not respond to a letter from the defendant’s solicitors regarding a private mediation arranged on 11 June 2019.
On 31 May 2019, Mr Paul Simon, solicitor, appeared to act for the plaintiff on an amicus basis at the directions hearing and advised that he had referred the plaintiff to another solicitor. He said the plaintiff was impecunious and could not contribute to the costs of the private mediation. At the request of the defendant’s solicitor, the Court made orders for judicial mediation on 15 July 2019. This did not proceed because the plaintiff was required to have legal representation and did not respond to the defendant’s solicitor or the Court indicating whether she would attend the mediation.
On 17 June 2019, the defendant’s solicitors wrote to the plaintiff directly saying she was required to pay the setting down for trial fee and lodge a notice for trial. The plaintiff acknowledged the email but did not take either of those steps.
Following vacation of the judicial mediation, the defendant filed its summons.
On 19 July 2019, orders were made vacating the trial date of 22 July 2019.
Secondly, the plaintiff has failed to make payment of the setting down for trial fee and is evidently not in a position to proceed to trial. It submits the Court has power to dismiss the proceeding for want of prosecution, on this basis, pursuant to r 24.01 of the Rules.
Plaintiff’s submissions
The plaintiff makes the following key submissions.
Firstly, she wishes to prosecute the proceeding and now has a new law firm acting. She is prepared to agree to self-executing orders.
Secondly, part of the delay is because there was no referral by the defendant to the medical panel. She was unaware until the first hearing date of this summons that the defendant was not going to make a referral to the medical panel. Subsequently, the plaintiff was unsure as to the serious injury certificate.
Thirdly, she has psychiatric conditions. This makes it difficult for her to attend Court. She is capable of giving instructions.
Fourthly, she has issues with her physical health, which cause her difficulties in her day-to-day living.
Applicable principles
The defendant’s application is made pursuant to rr 24.01 and 24.05 of the Rules.
In Nelson and anor v Geary and ors, I summarised the relevant principles:[8]
[8][2017] VSC 228, [13]–[20].
The relevant principle to apply is outlined by the Court of Appeal in Sullivan v Greyfriars Pty Ltd:[9]
[9][2015] VSCA 196, [21].
The inherent jurisdiction to dismiss a proceeding … for want of prosecution is well-established and is recognised in r 24.05 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’). It has been held that the power is to be exercised very sparingly and that it must be shown that there has been an inordinate and inexcusable delay in complying with the Rules, and that the defendant or respondent is likely to be seriously prejudiced as a result.
In Chan & Ors v Chen & Ors, Digby J held: [10]
It has long been recognised that where questions of fact cannot be tried fairly as a result of the lapse of time, including as a result of the loss or destruction of documentary evidence or other pertinent material and the disappearance, death or degraded memory of witnesses, it is likely that a fair trial of the proceedings cannot occur. If a Plaintiff is responsible for inordinate and inexcusable delay, which can be seen as likely to bring about such a situation at trial, justice may require that the proceeding be dismissed.
…
The critical consideration is whether the Plaintiffs’ conduct has caused, or is likely to cause, injustice to the Defendants. This will occur where there is a substantial risk that it will not be possible to have a fair trial of the proceeding because of the inordinate and inexcusable delay.
However, the Court’s decision on applications of this kind is in the nature of an exercise of discretion … Ultimately, an order for dismissal is appropriate only when the justice of the occasion demands it.
[10][2013] VSC 538 [42], [45]–[46] (citations omitted).
When considering prejudice, the relevant period is subsequent to the issue of proceedings, ‘however events that occurred before the issue of proceedings, when those proceedings were issued just before the expiration of the period of limitations, are not irrelevant to the exercise of the Court’s discretion’.[11]
The [CPA] is also applicable. Section 7 provides:
the overarching purpose of the CPA and rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
[11]Newman v Victoria (BC9507248, Supreme Court of Victoria, McDonald J, 7–10, 14, and 25 August 1995) [16].
Section 8 of the CPA requires the Court to give effect to the overarching purpose in the exercise of any of the powers.[12]
In Sullivan v Greyfriars Pty Ltd, the Court of Appeal held:[13]
Section 8 casts a new light on the inherent jurisdiction. It gives statutory emphasis to the importance of the timely resolution of proceedings, which in turn underscores the importance of compliance with orders of the Court for the management of a proceeding. But it also widens the range of matters to which consideration must be given. Even in cases where inordinate, inexcusable and prejudicial delay are not established, failure to comply with the orders of the Court may therefore none the less warrant summary dismissal. In light of s 8, the merits of the proceeding that is sought to be dismissed may bear on the exercise of the Court’s discretion ...
[12]Emphasis added.
[13][2015] VSCA 196, [23].
Section 9(c), (d) and (e) of the CPA require the Court to further the overarching purpose by having regard to various objects, including the efficient conduct of the business of the Court, the efficient use of judicial and administrative resources, and minimisation of delay. Section 25 of the CPA is also relevant. It imposes a duty on parties and their legal practitioners to use reasonable endeavours to act promptly and minimise delay.[14]
[14]Emphasis added.
The principles above give rise to three issues.
1. Has there been an inordinate and inexcusable delay?
2. Has the defendant demonstrated serious prejudice may arise?
3. Should the proceeding be summarily dismissed?
The first two issues are examined below. The defendant did not pursue summary dismissal and accordingly it is unnecessary to deal with that issue.
Has there been an inordinate and inexcusable delay?
The history of the proceeding, referred to in the defendant’s submissions above, demonstrates inordinate delay.
There is no evidence indicating the plaintiff’s medical conditions caused her to repeatedly breach Court orders and vacate trial dates. It may have been a factor in explaining some of her conduct. Certainly the medical evidence indicates psychiatric conditions. It appears that the plaintiff has difficulties leaving her home, requires assistance from her relatives to manage day-to-day and would require support to physically attend Court. However, she appears capable of instructing solicitors and understanding these proceedings. Indeed, for the majority of the period since this proceeding commenced, the plaintiff has been legally represented. I cannot conclude, on the evidence before me, that the plaintiff’s medical conditions explain her history of repeatedly breaching Court orders in this proceeding.
The plaintiff’s solicitor made submissions about her impecuniosity being the reason that she could not proceed with the privately arranged mediation. This is not a reason to breach Court orders. If the plaintiff anticipated that she could not comply with the Court order, then she should have made timely contact with the defendant’s solicitors and, if there was a proper basis for doing so, applied to vary the Court order.
A judicial mediation was later arranged. There is a fee for judicial mediation. However, as with most Court fees, impecunious litigants may apply for a fee waiver.[15] In any event, the judicial mediation did not proceed because the plaintiff did not obtain legal representation. There is no explanation as to why the plaintiff had legal representation before the mediation, and afterwards, but not at that time.
[15]Supreme Court Act 1986 (Vic) s 129(3); Supreme Court (Fees) Regulations 2018 regs 14, 16. The application for fee waiver is available on the Supreme Court of Victoria website. There are also concession rate fees for people who hold a current health care card within the meaning of the Social Security Act 1991 (Cth) at the time the fee is payable.
I accept that the plaintiff only recently became aware that the defendant accepts there is a serious injury and so the medical panel process is unnecessary. Prior to that, her solicitor had served the relevant material on the defendant’s solicitors. Again, this does not explain the history of non-compliance with Court orders. It is inexcusable on the material before me.
Has the defendant demonstrated serious prejudice may arise?
The defendant’s key submissions are as follows.
Firstly, there is general prejudice by effluxion of time. The alleged medical negligence concerns surgery that occurred over nine years ago. The defendant only became aware of the alleged injury when served with the writ more than five years afterwards. The writ was issued well after the three year period. The limitation defence was initially pleaded but withdrawn after receipt of affidavit material from the plaintiff.
The second Martin affidavit evidences specific prejudice as none of the defendant’s theatre staff present at the surgery performed on the plaintiff and involved with her care ‘have any independent recollection of the surgical procedure or the plaintiff’s care’ — nor does the consultant who performed the procedure. The defendant’s medical records indicate the surgical procedure and recovery were straightforward, with no adverse incident.
I accept the evidence that the witnesses have no independent recollection. However, I also accept the plaintiff’s submission that the recollection may be refreshed by reading contemporaneous notes. The evidence is that medical records are available.
Given the above, whilst the defendant is prejudiced by the effluxion of time, I do not consider it serious. That is, I do not consider there is a substantial risk that a fair trial cannot be held.
Disposition
The overarching purpose of the CPA is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. This requires consideration of objects such as the just determination of the civil proceeding, the efficient conduct of the business of the court, the efficient use of judicial and administrative resources, minimising delay, and the timely determination of the proceeding.[16]
[16]CPA (n 7) ss 9(1)(a), (c)–(f).
Here, there is both inordinate and inexcusable delay, and prejudice to the defendant, although not serious prejudice. The plaintiff suffers from psychiatric conditions. Balancing these factors, the just outcome is to make self-executing orders. The plaintiff will need to take active steps in the proceeding by stipulated time frames if she truly wishes to agitate the proceeding. If not, the proceeding will stand dismissed.
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