Hassan v Calvary Private Health Care Canberra Limited T/A Calvary John James Hospital
[2017] ACTSC 219
•9 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | HASSAN v CALVARY PRIVATE HEALTH CARE CANBERRA LIMITED T/A CALVARY JOHN JAMES HOSPITAL & ORS |
Citation: | [2017] ACTSC 219 |
Hearing Date: | 7 August 2017 |
DecisionDate: | 9 August 2017 |
Before: | McWilliam AsJ |
Decision: | See [60] |
Catchwords: | PRACTICE AND PROCEDURE – Court Procedures Rules 2006 (ACT), rr 75 and 76 – application for reinstatement of application taken to have been dismissed – personal injury claim – interests of justice – action reinstated – subpoenas – relevance |
Legislation Cited: | Limitation Act 1985 (ACT) ss 36, 43, 44 Supreme Court Act 1933 (ACT) s 20 Court Procedure Rules 2006 (ACT) rr 75, 76, 405, 406, 1613, 6901, 6604 |
Cases Cited: | Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 Balnaves v Armellin [2011] ACTSC 67 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541 Equuscorp Pty Limited v Lah [2009] ACTSC 113 Mander Forklift Pty Ltd v Singles [2014] ACTCA 44 Pahoff v Canberra Institute of Technology [2010] ACTSC 69 Salido v Nominal Defendant (1993) 32 NSWLR 524 |
Parties: | Ayan Hassan (Plaintiff) Calvary Private Health Care Canberra Limited t/a Calvary John James Hospital (First Defendant) Dr Phillip Mutton (Second Defendant) Dr Graham Bates (Third Defendant) Dr Elizabeth Gallagher (Fourth Defendant) |
Representation: | Counsel Self-represented (Plaintiff) Ms K Oldfield (Defendants) |
| Solicitors Self-represented (Plaintiff) HWL Ebsworth Lawyers (First Defendant) Ken Cush & Associates (Second and Fourth Defendant) Avant Law (Third Defendant) | |
File Number: | SC 306 of 2014 |
McWilliam AsJ:
The plaintiff is seeking to reinstate proceedings that were commenced by an originating claim filed on 4 July 2014, accompanied by a statement of claim. The principal relief sought was damages for personal injury arising from alleged negligence by three doctors and their employer, who are collectively the defendants in these proceedings.
Neither the originating claim nor the statement of claim was served on any of the defendants and there does not appear to be a date for the proceedings to otherwise return before the Court. Instead, the proceedings have remained dormant until 31 October 2016, when the application to reinstate and to extend the time to serve the defendants was filed.
The application to reinstate is necessary is because under r 75 of the Court Procedures Rules 2006 (ACT) (Rules), a proceeding is taken to be dismissed in relation to a defendant if, relevantly, either an affidavit of service is not filed within a year after the originating process is issued (see sub-r 75(1)), or a party does not take a step in the proceeding before the end of one year after the last step was taken in the proceeding (see sub-r 75(2)). Accordingly, the proceeding was deemed dismissed on 4 July 2015, a year after the only step in the proceedings was taken, namely the filing of the claim.
Both the plaintiff and the defendants relied upon various affidavits affirmed by the plaintiff. In addition, the defendants relied upon the affidavit of Dr Bates, the third defendant in these proceedings. The defendants objected to two of the affidavits of the plaintiff, both affirmed on 8 December 2016 as being irrelevant to the application before the Court. I admitted the affidavits subject to the relevance objection. Having heard the argument on the issues, I uphold the objection.
The plaintiff represented herself on the hearing of this application, notwithstanding the notice of appointment of solicitor on the Court file dated 10 February 2017. The defendants were represented by Ms Oldfield of counsel, whose oral submissions were of great assistance in crystallising the issues.
For reasons that follow, I have come to the view that on fine balance, it is in the interests of justice to reinstate the proceedings, but on the condition (pursuant to r 6901 of the Rules) that an amended statement of claim is filed within 28 days.
Pursuant to leave granted when the application was before the Court for directions, the plaintiff has issued 21 subpoenas, according to the Court file. There are a number of applications to set aside some of the subpoenas issued. In light of my decision on the question of reinstatement, those applications do not yet arise for determination in the substantive proceedings, however that issue is dealt with later in these reasons.
Court’s power to reinstate
Sub-rule 76(2) of the Rules permits the Court to reinstate the proceedings if it is in the interests of justice to do so. The rule furthers the inherent jurisdiction of the Court to administer justice, reflected in s 20 of the Supreme Court Act 1933 (ACT).
Principles to be applied
A consideration of what is ‘in the interests of justice’ accords the Court broad discretion, with the onus on the plaintiff to persuade the Court that such discretion should be exercised in her favour: Equuscorp Pty Limited v Lah [2009] ACTSC 113 (‘Equuscorp’) at [36]; Mander Forklift Pty Ltd v Singles [2014] ACTCA 44 (‘Mander Forklift’) at [13].
There are no mandatory factors which the Court is obliged to consider. This may be contrasted, for example, with s 36(2) of the Limitation Act 1985 (ACT), where a court is empowered to extend the time to bring an action for damages for personal injury if it decides that it is ‘just and reasonable to do so’. In such circumstances s 36(3) of the Limitation Act lists a number of (non-exhaustive) factors that shall be taken into account.
The principles relevant to extending the time in which to commence a proceeding under the Limitation Act may appear to overlap with those relevant to reinstating a proceeding that has been dismissed by the operation of the procedural rules of court.
Accordingly, in cases such as Pahoff v Canberra Institute of Technology [2010] ACTSC 69 at [24] reliance was placed on Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541 (‘Brisbane South’) per McHugh J at 552, a case which concerned the relevant statute of limitation in Queensland. In Equuscorp at [36]-[37], Buchanan J similarly drew upon Brisbane South in the process of reasoning that there is no presumptive right to the exercise of a discretion, and that the plaintiff bears the onus, including the task of satisfactorily explaining the delay as well as excluding not only the prima facie presumption of prejudice to a defendant arising from delay but any particular prejudice to which an opposing party might draw attention.
I do not doubt that the principled exercise of the discretion under r 76 may include the consideration of matters such as the extent of delay and the reason for it, balancing the plaintiff’s interest in bringing an otherwise meritorious claim with the actual and/or presumed prejudice to the defendant and broader considerations, such as those articulated in Brisbane South, where McHugh J stated at 553:
Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong.
McHugh J was there referring (see footnote 33 at 553) to the fact that the vast majority of defendants in personal injury cases are insured, and the statement appears to resonate with the facts of the case here.
However, caution ought to be exercised when drawing upon authorities in the context of a different statutory regime, where the similarity of language might otherwise suggest a similar statutory test. As Windeyer J in Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 488 explained:
Statutory provisions imposing time limits on actions take various forms and have different purposes. Some are for preventing stale claims, some for establishing possessory titles, some for the protection of public authorities, some in aid of executors and administrators. Some are incidents of rights created by statutes. Some prevent actions being brought after, some before, a lapse of time.
The need for caution in the context of the present case arises for two reasons, and stems from the different purpose of the Rules when compared with the object of, and underlying policy for, the Limitation Act.
The first reason for caution is because the present consideration of factors relevant to the exercise of the Court’s discretion under r 76 of the Rules does not in any way indicate how the Court might exercise its discretion in this case if an issue under the Limitation Act arises and the same factors (delay, prejudice, etc) arise for consideration.
Counsel for the defendants expressly reserved the defendants’ position until a proper pleading was filed with a clearly articulated cause of action and investigations necessary for the filing of a Defence were carried out.
Different causes of action are treated in different ways under the Limitation Act, which distinguishes between provisions that bar the remedy, which are procedural in nature, and those that extinguish the substantive right (seen in ss 43 and 44 of the Limitation Act). One distinctive feature that might have particular importance for the present case is the very limited circumstances in which s 36 of the Limitation Act permits a court to extend the time within which a person may commence proceedings.
Given any question of limitation is yet to arise, it is important for the parties to understand that, notwithstanding that authorities concerning the applicable principles under r 76 might draw on cases concerning limitation periods such as Brisbane South, the Court’s reasoning is expressly limited here to determining a procedural issue under the Rules.
The second reason for the cautious application of principles found in cases concerning statutes of limitation is that the judicial discretion must be exercised in a manner that furthers the purposes of the statutory context in which it appears: Salido v Nominal Defendant (1993) 32 NSWLR 524 (Salido) per Gleeson CJ at 532, and per Kirby P at 535, 538. No guideline can substitute the conscientious consideration of the exercise of a discretion in the peculiar circumstances in question: Salido per Kirby P at 538.
In this case, the evident purpose of r 75 is that once proceedings are commenced, they are prosecuted by all parties in a timely fashion. However, r 75 is a self-executing procedural rule. The statutory context in which it appears includes rules such as sub-r 1613(2)(a), which permits a court to set aside an order at any time if made in the absence of a party.
Further, sub-r 76(3) provides for an automatic reinstatement of proceedings in cases where dismissal occurs by the operation of sub-r 75(2) if, before the end of one year after the day the proceedings were dismissed, a party to the proceeding files a document in the proceeding. On one view, had the plaintiff filed her application approximately four months earlier, namely before 4 July 2016, an argument might have been made that the proceedings were automatically reinstated under sub-r 76(3).
The significant factors for consideration in the circumstances of this case are: the nature of the proceeding and the claim as pleaded, the length of delay and the explanation for it, the consequences for the plaintiff if reinstatement is not granted, and the presumed and actual prejudice to the defendants, with no one factor being determinative. However, the weight given to those factors is influenced by the procedural context outlined above.
The pleading
As alluded to, the pleading falls well short of what would be a clear articulation of a reasonable cause of action compliant with rr 405 and 406 of the Rules. It does not appear to have been the subject of legal drafting, insofar as it is a lengthy document reciting the plaintiff’s medical history, rather than setting out the material facts alleged to support each element of a cause of action known to the law.
Further, many of the paragraphs in the pleading are embarrassing as presently drafted. I therefore accept the submission of counsel for the defendants that the pleading in its present form is not one to which a Defence could properly be filed.
However, this is not a case where the plaintiff has had ample opportunities to re-plead and refine her argument (c.f. Balnaves v Armellin [2011] ACTSC 67 at [57]-[64]) and I have been able to discern at least the following from the document:
(a)On 17 November 2010, Dr Mutton (the second defendant) is alleged to have removed the plaintiff’s uterus without her consent (paragraph 1(a) of the Statement of Claim).
(b)In doing so, Dr Mutton is alleged to have failed to exercise reasonable care, including failing to perform anterior and posterior repair, leading to complications from the surgery (paragraph 1(a) of the Statement of Claim).
(c)It is further alleged that Dr Bates (the third defendant) failed in his duty of care through communications with both Dr Mutton and the plaintiff (paragraph 1(b) of the Statement of Claim). It appears that the plaintiff asserts Dr Bates should have performed the surgery on that day, rather than Dr Mutton, and moreover, that the type of surgery performed should have been different to that which was performed.
(d)Dr Gallagher (the third defendant) is also alleged to have performed surgery on the plaintiff without her consent on 21 September 2011 including a rectal prolapsed procedure and the insertion of mesh into the plaintiff’s rectum, which caused her to have a sphincter defect, a deficient perineal body, incontinence and pain (paragraphs 1(c) and 1(e) of the Statement of Claim).
(e)The plaintiff further alleges that this was a breach of a duty of care and in particular a failure to exercise a ‘reasonable and competent degree of skill and care’ (paragraph 1(c) of the Statement of Claim).
(f)The loss and damage caused by the two operations is variously pleaded in part three of the Statement of Claim, but includes inter alia loss of the plaintiff’s uterus, cervix, damage to the plaintiff’s rectum, inability to empty her bowel, incontinence, misalignment of her pelvis and consequential psychological damage.
It is also clear from the Affidavit of Dr Bates (paragraph 3) that he understands the broad nature of the claim to be made against him:
The allegations against me which Ms Hassan wishes to pursue if the proceedings are reinstated are apparently (the amended Statement of Claim being difficult to understand), that either I, or Dr Mutton, removed her uterus without her consent during an operation on 17 November 2010, and that in performing a prolapse repair in the same procedure, I did not insert mesh.
The above is sufficient to establish that the present claim does disclose a reasonable cause of action in the sense of being arguable.
I note from the affidavit of Dr Bates that the same allegations have apparently already been the subject of a complaint to the Australian Health Practitioner Regulation Agency (AHPRA), and that on 12 September 2014, AHPRA determined that there was no evidence to indicate that the level of care provided was below reasonably expected standards, closing its file.
Such evidence is some indication that at least the second and third defendants may ultimately be successful in defending the proceedings, and it may cause the plaintiff to give careful consideration to the wisdom of pursuing a claim based on the same allegations in this Court, with the significant costs consequences that may follow if she is unsuccessful. However, AHPRA’s consideration of the issue is not determinative of a cause of action seeking different relief (in the form of damages), in a different jurisdiction, with a different decision maker, and possibly different evidence.
Having found that a reasonable cause of action is disclosed (albeit among an otherwise opaque and embarrassing pleading), the time for assessing the ultimate merit of the claim is yet to arise. The plaintiff is only required to plead her claim at the outset, not prove it. To the extent the evidence led by each party was directed to the underlying merit of the dispute, it therefore carries lesser weight.
Delay
The length of delay is clearly a matter that weighs against the plaintiff. The period from when r 75 operated (4 July 2015) to when the application to reinstate was filed (31 October 2016), was approximately one year and four months.
The dates of the two surgeries principally giving rise to injury, as confirmed with the plaintiff, were November 2010 and September 2011. Before me there was some dispute about the precise dates, however a reference to the month in which the surgeries took place is sufficient.
However, in light of the fact that r 76 itself permits a further year for a party to take a step in proceedings which might automatically bring about reinstatement (whether or not that particular aspect would have been enlivened here), and in light of the considerations discussed below, I do not consider that period of time to be inordinate or inexcusable in the sense of having determinative weight against the plaintiff. The delay is certainly not in the realm of the 15-year period from the date of injury that was under consideration in Mander Forklift, where Master Harper’s initial discretionary decision to refuse reinstatement was ultimately upheld.
That is not to suggest that in other cases, a delay of a year in applying to reinstate proceedings under r 76 will not be a matter of great significance. The effect of the delay (discussed below) may be as significant as the extent of delay.
The explanation for the delay
The explanation for the delay is also somewhat unsatisfactory. The plaintiff frankly conceded that she knew how to serve the defendants and that she knew ‘what to do’. However, she said that the state of her ill health, and in particular her depression, prevented her from attending to the proper pursuit of the claim.
The plaintiff’s affidavit of 28 October 2016 includes a number of medical certificates, dated from April 2014 to April 2016. The medical certificates refer to the plaintiff having been ‘unwell for the last 5 years’, and ‘incapacitated’ from 21 September 2011 to 12 April 2016.
The brevity of the medical certificates is unsatisfactory. There is no information provided by them to indicate any medical reason for the plaintiff being incapacitated. Moreover, I accept the defendants’ submission that the certificates appear to be directed to excusing the plaintiff from completion of her tax. The management of a person’s financial and general affairs is a very different proposition from taking a step of notifying the defendants of Court proceedings against them.
Accordingly, I attribute very little weight to the medical certificates as in any way supporting a satisfactory explanation for the delay.
I do accept, for the purposes of this application only, that the plaintiff was affected by depression and the debilitating effects that it can have. I also accept that the plaintiff was taking medication that may have contributed to her inability to pursue the claim in accordance with the Rules.
Were there actual prejudice to the defendants established, the lack of a satisfactory explanation may have been determinative in the balance, bearing in mind the plaintiff’s onus.
Consequences for the plaintiff
The consequences for the plaintiff are clear. I say nothing about any potential statute of limitations issue in the proceedings sought to be reinstated. However, given the injuries occurred in November 2010 and September 2011, there would almost certainly be a limitation issue if the plaintiff were not permitted to reinstate the proceedings and were instead left to commence proceedings afresh. That is a matter to which I have attributed significant weight.
The plaintiff’s obvious fervent desire to agitate the issues before this Court was also noted, and I have taken into account the personal consequences for the plaintiff in being prevented from having a claim determined that, on her case, only lay in abeyance because of injuries that she attributes to the defendants.
These matters each operate in favour of granting the application.
Prejudice to the defendants
As stated above, the presumption of prejudice to the defendants might weigh significantly in the balance of the Court’s discretion in the context of an application for leave to extend time to commence proceedings, as opposed to reinstating them.
On the facts of this case, it might be thought that the stage the proceedings reached before falling dormant is tantamount to the same result. There is no question that the defendants were not on notice of the claim.
The important difference is that where an application has been commenced, under the Rules, the plaintiff has one year to serve the originating process, and may seek leave of the Court to extend that time. In my view, that does alter the weight that might otherwise be given to presumptive prejudice. I consider that greater weight ought to be given to whether there is actual prejudice.
I have taken into consideration Dr Bates’ affidavit evidence as to the hardship on doctors being required to again traverse issues that have already been well documented in other forums. The stress and costs to the defendants in being involved in further litigation is well appreciated.
Indeed, there may be cases where the stress and costs that will result from the continuation of proceedings will be so disproportionate to the interests of a plaintiff in pursuing a particular claim that it would not be in the interests of justice to allow the claim to proceed.
However, in this case, there appears to be ready documentary evidence, including the affidavit of Dr Bates which has already been prepared, to suggest that the defendants are in a position to meet the allegations made against them. No doubt that is because they have met the allegations previously, in the context of the complaint to AHPRA.
Accepting that the preparation of further expert evidence is likely and that the defence of the claim will generally result in significant inconvenience, I do not consider that there is legal prejudice to the defendants such as to warrant the Court refusing the application.
Conclusion on the application to reinstate
For the above reasons, it is in the interests of justice that the plaintiff be given one further opportunity to prosecute the claim. However, the pleadings as drafted require amendment at the very least to delete the inappropriate relief sought and to reduce the document to the material facts supporting the cause of action alleged.
As a condition of reinstating the application, that must be done in a timely fashion and I consider 28 days to be sufficient time for the plaintiff to receive the legal advice she foreshadowed she was in the process of seeking.
Subpoenas
Rule 6604 of the Rules provides for the Court to set aside a subpoena. The primary basis for the defendants’ applications is that the documents sought under the subpoenas are irrelevant to the issues in dispute. At the time the subpoenas were issued, I accept that the documents sought in the subpoenas were not relevant to the question of reinstatement and I was minded to set them aside in the context of the application for reinstatement.
However, it transpires that there has been partial compliance with some of the subpoenas and I can see (and counsel for the defendants accepted) that some of the documents sought (and produced) under the subpoenas may be relevant to the substantive proceedings. As submitted by counsel for the defendants, the determination of relevance in the substantive proceedings ought await the filing of a Defence.
It does not seem an efficient use of judicial or legal resources to set aside the subpoenas, only to have them re-issued once a Defence is filed, with the potential for further applications seeking to set them aside. Instead, as foreshadowed to the parties, I will defer ruling on the applications to set aside the subpoenas presently before the Court until the pleadings are in a proper state.
As a consequence, it will be necessary to stay the operation of the subpoenas so that the numerous recipients are under no obligation to comply with them while the applications before the Court remain unresolved.
Costs
Although the plaintiff has been successful in her application, she was seeking an indulgence from the Court and ultimately, the defendants may succeed in defending the claim. Further, the defendants were only required to respond to the application through the initial default of the plaintiff in failing to serve the originating process. In those circumstances, I consider it appropriate to reserve costs with the intent that costs will follow the ultimate outcome of the substantive proceedings.
Orders
The Orders of the Court will be as follows:
1.The first defendant is renamed Calvary Private Health Care Canberra Limited trading as Calvary John James Hospital.
2.The proceedings are reinstated, conditional upon compliance with order 3.
3.The plaintiff is to file and serve an amended statement of claim on or before 8 September 2017.
4.Defences are to be filed and served on or before 9 October 2017.
5.The applications filed 13 June 2017, 13 June 2017, 14 June 2017 and 1 August 2017 seeking to set aside subpoenas issued by the plaintiff are adjourned for further directions pending the filing of a Defence in these proceedings.
6.The subpoenas issued by the plaintiff are stayed until further order.
7.The plaintiff is to notify any recipient of a subpoena that is not a party to these proceedings of order 5 within 7 days.
8.The proceedings are listed for further directions on 12 October 2017 at 9.30am.
9.The parties have liberty to apply to the Registrar for variation of the above timetabling directions on 2 days’ notice to the other party.
10.Costs reserved.
| I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: 11 August 2017 |
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