Jagadish v Coles Supermarkets Australia Pty Ltd - [2008] WADC 57

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JAGADISH -v- COLES SUPERMARKETS AUSTRALIA PTY LTD [2008] WADC 57

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 14 APRIL 2008

DELIVERED : 24 APRIL 2008

FILE NO/S: CIV 1960 of 2007

BETWEEN: RANJ JAGADISH
Plaintiff
AND
COLES SUPERMARKETS AUSTRALIA PTY LTD
Defendant

Catchwords:

Practice - Practice under the Rules of the Supreme Court of Western Australia - Application for issue of a subpoena returnable prior to trial - Consideration of whether Registrars are bound by determinations of Judges

Legislation:

Nil

Result:

To be determined

Representation:

Counsel:

Plaintiff: Ms A K Farnworth
Defendant: No appearance

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: SRB Legal

Case(s) referred to in judgment(s):

Australian Gas Light Company v Australian Competition and Consumer Commission (2003) ATPR 41‑956
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Hansen v Uezzell [2007] WADC 188
Harris v Caladine (1991) 172 CLR 84
Layne Christensen Company & Anor v Stanley & Ors [2003] WASC 103
Stanley & Anor v Layne Christensen Company & Ors [2004] WASCA 50
Theobald v St John Ambulance Australia, unreported; DCt of WA; Library No 4991; 24 July 1996

DEPUTY REGISTRAR HARMAN: By her claim in the action the plaintiff seeks damages for personal injury. According to the statement of claim, the plaintiff was injured when she was struck by a shopping cart at the defendant's premises. As a result she suffered injury to her back and left knee. Along with pain and restricted mobility in those parts, she suffered pain about her hips, depression and interrupted sleep. The defendant has put the plaintiff to proof of that case.
By her application the plaintiff seeks leave to issue a subpoena duces tecum to a Dr D Mathias for the production of his medical file relating to the plaintiff. I was informed that the application was presented ex parte. In any event, it is for the applicant to discharge the onus of persuasion.
According to the affidavit of Amelia Kate Farnworth she is the plaintiff's solicitor and Dr Mathias the plaintiff's general practitioner. She annexes to her affidavit a copy of his medical report relating to the plaintiff dated 28 May 2007. She states that on 30 January 2008, the plaintiff's solicitors wrote to Dr Mathias seeking a copy of his clinical file and that on 28 February 2008, the plaintiff's solicitors were informed that Dr Mathias "was not willing to release a copy of his clinical file". She deposes that the plaintiff requires Dr Mathias' file in order to assess the plaintiff's medical condition both pre‑accident and post‑accident.
The report is in eight parts. Its structure and content suggest that those parts respond to the terms of the plaintiff's solicitor's request. It concludes with a post-script that recites information then lately provided by the plaintiff. Part of that information is that Dr Beaver (identified elsewhere in the report as an orthopaedic surgeon) had requested that the plaintiff undergo a "MRI check" and that the plaintiff had been referred to an unidentified a sports physician. It is implicit that the referral had not been of Dr Mathias.
The action has reached the point where the pleadings have closed. I note that according to the datum by which the court monitors the progress of actions, the plaintiff had been due to enter the action for trial by 28 March 2008 however the defendant has consented to an extension to 28 May 2008.
I also note that on 29 October 2007 the plaintiff had brought an application to the same effect, the hearing of which was adjourned sine die. It has not since been re-listed. When I enquired of the plaintiff the reason for the adjournment I was informed that the Deputy Registrar had considered it appropriate that the plaintiff first request of Dr Mathias the documents the subject of the proposed subpoena.
It emerged from the plaintiff's submissions that each of the parties were interested to know whether at any time the plaintiff had consulted Dr Mathias for any reason that would be relevant for the purpose of considering the impact of the injuries the subject of the claim. As the content of the report did not suggest any such history and as there was no evidence other than that Dr Mathias was the plaintiff’s general practitioner, I enquired of the plaintiff's solicitor whether she had experienced any difficulty in obtaining relevant information from her client. I was prompted to so in order to clearly understand the position of the plaintiff's solicitor, because as much as there was no evidence of any such history, there was no evidence of any difficulty in taking instructions, proofing the plaintiff or otherwise getting up related aspects of the case. I was informed that had not been so. From that discussion I took it to be the case that at least from the perspective of the plaintiff, there had been no history of relevant consultations with Dr Mathias; at least, none of any significance for the plaintiff. In coming to that conclusion I reflected on the fact that the applicant carried the onus and there was no proper basis upon which to draw any other inference. I accept that other inferences are open but where the applicant carries the onus and has neither provided evidence on point nor of there being any difficulty in so doing, in my opinion the inferences open to be drawn are appropriately considered to be limited.
After the plaintiff submitted that the purpose of the application was more to do with ruling out the prospect that there had been any relevant history, I considered that as the plaintiff had alluded had been the case, part of the motivation for applying had been an interest of the defendant in having access to the plaintiff's medical history. There is nothing significant in that prospect but it explained the lack of useful evidence and that the force in the plaintiff's submissions appeared to be at best that it was the plaintiff's medical history of which she sought production. Otherwise the plaintiff's solicitor promoted the prospect that further evidence would be provided if the court would indicate the scope of any perceived deficiency. At that point I indicated that I appreciated that there was a lack of useful evidence generally. There was no further submission and I reserved my decision.
The relevant rule provides that were a party seeks to have a document in the hands of a stranger to the litigation produced prior to trial it is first required to obtain leave. The discretion so provided is not expressed to be limited. In order to appreciate the significance of the requirement for leave, in the event that date for production of the same document had been the date of trial of the action, leave would not have been required. The context in which leave would be sought suggests that particular consideration would be given to the applicant's present need to consider the documents and the interests of the proposed witness. I accept that the context in which a particular application is made may be such that want of evidence of need may not be fatal. As to the interests of the proposed witness, it is conceivable that it would only be by a process of construction based on features of the context that would project an interest as being at odds with that of an applicant. Fundamentally however two features emerge from consideration of the prospect of the exercise of power. The first emerges on every such occasion: whether it is appropriate to do so. The second, an aspect of the first is that it is appropriate to consider that to require a stranger to the litigation to respond to an order would at some level interfere with liberty to go about other lawful activities. As much as the community recognises that from time to time the liberty of some of its members will be so interrupted, it is appropriate for the court to recognise that such disruption will have an impact. It is of little consequence that the court would provide for the costs of the witness. The provision of scope for recourse conceivably only leads to disputation as to quantum and recovery. In all probability costs would never amount to an adequate remedy from the viewpoint of the witness. I hesitate to speculate that in most cases witnesses simply take the loss. Ultimately the guiding principle is that with power comes responsibility. In a case where a party seeks leave for the production of documents prior to trial a court would give serious consideration to whether the applicant had made out a case.
I might commence my analysis by isolating 2 features that emerge from the application; the first is the response of the proposed witness. As I will later refer to Hansen v Uezzell [2007] WADC 188, I note at this point that in the reasons for decision of Yeats DCJ the following passage appears at [20]:
"In personal injuries claim (sic) doctors need to receive a subpoena to enable them to provide documents to one of the parties, but normally doctors do not resist the production of such documents."
The passage purports to be nothing more than generalisation. Although it is open to characterise the proposed witness as being in ‘need’, recognition of such a need would have no proper bearing upon the result of an application. The only need to be considered is that of the applicant and it is appropriate to consider that a witness would observe the terms of a subpoena.
The second is that I accept that at some level, conceivably at many levels, an injured party’s medical history may be relevant for the purpose of assessing loss. The degree to which a recorded history would be useful to a party depends on the context within which what is revealed may be considered. Apart from the limited information provided by the pleadings and the medical report (the content of neither of which amounts to evidence) I know nothing of the plaintiff’s medical history. Before I leave the issue of relevance, it would be a rare case where a practitioner could not make out a case for production of a document on the basis of relevance. As I frequently observe in chambers when advocates labour the issue: "I accept that what you seek is relevant, you wouldn’t be here if it wasn't." And so it is that even in this case where there is no evidence, useful information or submission, I imagine that there is a real prospect that beyond what would reflect the content of the report, the notes in the possession of the proposed witness may to some degree be relevant. I am simply not in a position to make a judgement either as to the significance of the documents sought or the time at which production of them is sought.
I accept that the plaintiff would presently be at that point where her solicitor would be getting up the case for trial and that despite the absence of evidence, the plaintiff’s interest in the notes is for the purpose of ascertaining the strengths and weaknesses of her case. Further that there would be at least the prospect that either the case or particular features of it may be agreed and that such a prospect would more likely be realised where the parties have access to material that would have a bearing upon their attitudes towards that end.
I accept that the plaintiff may also have an interest in ensuring that the defendant would have access to the content of the notes. Further, that that interest may reflect a shared interest of the parties in reaching an accommodation. I recognise that there is also a broader community interest served by promoting the prospect of settlement. However those considerations do not translate into a predisposition in favour of granting leave to any particular party, only into the encouragement that the court extends to all parties to settle their differences.
In my opinion the fact that it is the plaintiff that has applied is not significant. The issue to be determined is whether at the time of the hearing the applicant persuades the court that it is appropriate to require a witness to now produce documents. In every such case it is appropriate to recognise that the applicant has taken the trouble to seek the documents and that fact alone speaks to its interest. It is but one consideration that bears upon the exercise of discretion.
In the event that the plaintiff had sought recourse to the medical notes for the purpose of trial I recognise that it would be in the interests of the parties and bring efficiency to the trial process for the notes to be produced in the period prior to the trial rather than on the day of the trial itself. Had the application been presented for that purpose it would have had significantly better prospects of success.
In her reasons for decision in Hansen v Uezzell (supra) Yeats DCJ stated in relation to such applications at [23] as follows:
"Registrars of the District Court should deal with these applications for leave according to law as that law is set out in the decision of the Court of Appeal in Commonwealth of Australia v Albany Port Authority which I have previously referred to."
The direction may have been precipitated by the portrayal of the reasons for decision of the Deputy Registrar in the case before her as having been that leave would not to be granted prior to the pre trial conference. In Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 the court had before it an application which had emerged in a context where subpoenas had issued that were returnable at trial. The issuing party had subsequently sought leave to have them returned at an earlier time. Leave had been granted but was later set aside. The issue put before the Court of Appeal related to the decision to set aside the grant of leave.
In his reasons for decision at [18] Steytler P referred to a passage from the reasons for decision of French J in Australian Gas Light Company v Australian Competition and Consumer Commission (2003) ATPR 41‑956 at [8]:
"It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue, that may also be a practical factor to be weighed.”
There is nothing in the reasons of French J to suggest that production of documents had been sought prior to trial. (O 27, r 6 of the Federal Court Rules provided that no subpoena would issue other than under a grant of leave.)
Steytler P then referred to what in the reasons for decision in Stanley & Anor v Layne Christensen Company & Ors [2004] WASCA 50 were described as 4 points of principle that had emerged from an assessment of case law conducted at first instance by Master Sanderson: (Layne Christensen Company & Anor v Stanley & Ors [2003] WASC 103). After reciting those points the Court of Appeal in Stanley had stated:
"We agree, with respect, that the learned Master correctly identified and addressed the principles upon which a determination of whether or not the subpoena … should be allowed to stand [sic]."
The points were as follows:
"(1) A legitimate forensic purpose will be established if a document gives rise to a line of enquiry which is relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross‑examination: …
(2) In assessing whether a legitimate forensic purpose exists in relation to documents sought on an early return of subpoena, it must be borne in mind that the necessity for having a document to fairly dispose of the issues of trial might well not become apparent before trial. It may, for example, become apparent when a document is used in cross-examination to refute unforseen evidence-in-chief. Thus, whether a document is 'necessary' to fairly dispose of proceedings is to be understood in the broad sense of embracing any document which has value, in the sense of at least apparent relevance, and [sic] fairly disposing of proceedings, even if it might not readily be seen, at the pre-inspection stage, necessarily to be admissible in evidence: … Cases will be rare in which, prior to production of documents, a subpoena will be set aside as an abuse of process on the ground the documents by description are manifestly irrelevant to the subject proceedings, or are incapable of bearing upon matters of credit pertinent to the proceedings: …
(3) At least one object of the rule permitting early return of subpoenas is to appraise the parties of the strengths and weaknesses of their case at an early stage. Hence, no narrow view as to the legitimate purposes of a subpoena ought to be taken: …
(4) There is no requirement that to avoid the stigma of fishing, a party must already by [sic] in possession of some evidence before issuing a subpoena.”
With reference to the context before him Steytler P then added:
“It must consequently be assumed that the Master was satisfied of those matters (albeit only after a brief examination of the relevant documents and subject to the making of any objection) before giving the appellant leave to issue the subpoenas and ordering that they be returnable before the court on 4 April 2006. No objection has been made to those orders by any party or person affected them.”
As the points were presented in the context that I have described perhaps it is not surprising that Steytler P presents a mere assumption. They had no bearing upon the issue whether there had been an abuse of power in the process of setting the subpoenas aside.
In Stanley (supra) the Court of Appeal had before it the determination of Master Sanderson in which the points had first been expressed. In [1] of his reasons for decision the Master had described the case before him as follows:
"The chamber summons by its terms seeks to have certain of the subpoenas set aside and others varied. During the course of the hearing, counsel for the first and second defendants indicated that in fact what was sought was a variation of each of the subpoenas. The application proceeded on that basis."
At [13] he had continued as follows:
"It was the prime contention of the first and second defendants that the subpoenas only had a legitimate forensic purpose if they were amended as proposed. It was said the subpoenas in their present form were too extensive. They dealt with matters which were irrelevant to the issues between the parties and amounted to a fishing expedition. Furthermore, in the case of the subpoena directed to Ms Stanley, what was sought were documents which were confidential to the first defendant. In particular, counsel for the first and second defendants relied on the Federal Court decision of Freid v National Australia Bank (supra). Weinberg J (at 29 and 30) said:
'[29] It is not appropriate, in my view, for a court to permit a subpoena to stand which does little more than trawl for documents which may be used to impugn the credit of a particular witness. This is particularly so when the documents sought had nothing to do with any of the issues in dispute in the proceedings. The court must be alert to ensure that any subpoena which is issued has a legitimate forensic purpose. That purpose must be identifiable, and likely to facilitate the conduct of the proceedings, not merely to oppress a party or a witness.
[30]It is not a legitimate use of the subpoena to have specified documents produced in a speculative attempt to identify whether the documents might, ultimately, be of some evidential value … ' "

The context in which the 4 points were presented in the reasons for decision of the Master was expressed at [16] as follows:
"The way in which counsel for the first and second defendants approached the matter raises the question of what, in any particular case, is a legitimate forensic purpose for which a subpoena might be issued."
At this point I interpose that of the 17 subpoenas the subject of the application before him, only the decision made in relation to that issued against Ms Stanley proceeded to appeal. Before I leave the remaining 16, I note that the Master commenced at [17]:
"Set against those principles I am satisfied that the suppliers' subpoenas and the communications’ subpoenas should stand."
As to that issued against Ms Stanley, the Master had this to say at [21]:
"The first and second defendants object to the scope of the subpoena issued to Ms Stanley on two separate but related grounds. First, they say that there is no legitimate forensic purpose in the plaintiffs seeking the documents. They point to the fact that the first defendant has provided discovery and if it was thought any affidavits or other material produced in the course of Family Court proceedings was relevant, then an application for further and better discovery ought be made. In the absence of such an application, there is no warrant, so it was submitted, for allowing access to Family Court documents through Ms Stanley. In my view it is not appropriate to test the subpoena by reference to the defendant's discovery. Based on the evidence of Mr Connolly, I am satisfied that the plaintiffs do have a legitimate forensic purpose in seeking the Family Court documents."
Again, I might interpose that Mr Connolly was a solicitor who provided evidence upon which reliance had been placed in both the plaintiffs’ application for the subpoena and in response to the defendant's application for variation.
The Master continued at [22] as follows:
"The second objection raised, focused on the duty of a party in any court proceedings, be it the Family Court or any other court, not to use documents in proceedings for any other purpose. … Of course the legitimate forensic purpose test must be satisfied and in this case I am content that it has been satisfied …"
It is apparent that the determination made in relation to the particular subpoena had been founded on the evidence of Mr Connolly. The support for that view is provided not only by the Master's reasons but also the more extensive references to the content of Mr Connolly's affidavit that appears at [8] of the reasons of the Court of Appeal. It is unnecessary for me to cite that paragraph in full but sufficient to refer to its commencement and to [9]:
"[8] In evidence before the learned Master on the application for leave to issue a writ of subpoena, and again on the return of the subpoena in the application to have it set aside, there was an affidavit … of Mr A L Connolly …
[9] On the basis of this evidence the learned Master concluded that the first and second respondents had a legitimate forensic purpose for issuing the subpoena to CS to require her to produce copies of all affidavits in her possession filed in the Family Court proceedings. The necessity for there to be “a legitimate forensic purpose” in such circumstances is well established by many authorities … In concluding that a legitimate forensic purpose had been established for the first and second respondents to issue a subpoena requiring the production of copies of the affidavits in the Family Court proceedings the learned Master identified the principles which regulated the decision which he was required to make as follows: …"
After reciting the 4 points the court concluded, (again at [9]):
"We agree, with respect, that the learned Master correctly identified and addressed the principles upon which a determination of whether or not the subpoena … should be allowed to stand [sic]."
Accordingly notwithstanding the elevation of the 4 points by the Court of Appeal in two instances, they do not convey binding authority on the subject of the application before me. It follows that I disagree with Her Honour.
I accept that it would only be a matter of nuance and weight that would distinguish the considerations that would apply in any particular case on the hearing of an application for leave to issue a subpoena and an application by which any party would seek to set aside or vary its terms. That said it is worth labouring the point that each case involves an exercise of discretion and each case ought to be determined on its merits not on the basis of any predisposition.
I do not have any difficulty with the 4 points: I would simply state that they are but 4 aspects of a feature of the process of considering an exercise of discretion on an application for leave. Although relevance and the prospect that the documents sought may assist a party are factors properly taken into account in any application; in my opinion where leave is required as the reasons of French J illustrate, other considerations should not be ignored. In my opinion the points are not exclusive. To the extent that they had been utilised for the purpose of considering whether to grant leave (as to which it is not clear that they had), a Registrar of the District Court is not bound by a decision of the Master. The reason that I have canvassed the points to the extent that I have is that they were expressly adopted by Yeats DCJ on the basis that they were authoritative.
In Theobald v St John Ambulance Australia, unreported; DCt of WA; Library No 4991; 24 July 1996, Registrar Kingsley considered the issue put by the plaintiff as to whether a Registrar was bound by a Judge's decision or whether such decisions were merely persuasive.
At p 6 he gave reasons as follows:
"The decisions of a Registrar are reviewable de novo by a Judge of this Court pursuant to O 2 r 9. This power of review is in accord with the second condition of delegation as stated by Mason CJ and Dean (sic) J in Harris v Caladine (1991) 172 CLR 84 at 95 where they said:
'The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court. For present purposes it is sufficient for us to say that, if the exercise of delegation, powers and functions of a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that the delegation will be valid. Certainly, if the review is by way of hearing de novo, the delegation will be valid. The importance of insisting on the existence of review by a Judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a Judge. In other words, a litigant can avail him or herself to the judicial independence which is the hallmark of the class of court presently under consideration.
Harris' case involved consideration of the powers of Judges of the Family Court to delegate to Registrars of the Family Court certain powers. Order 36A r 7(4) of the Family Law Rules provided that "a Court reviewing the exercise of power by a Registrar shall proceed by way of hearing de novo... "Brennan J at p 106 considered that:
'The Act intends the view of a Judge upon review to prevail over any inconsistent view by a Registrar or Deputy Registrar with respect to the matter dealt with in the order.'
Dawson J at p 123, when considering O 36 r 7(4) Family Law Rules, states:
'It cannot be doubted that those provisions collectively provide an effective measure of supervision and control over the delegation of powers to a Registrar and of the exercise of such powers as are delegated.'
In my opinion, having regard to those statements, the review by a Judge of a Registrar's decision is a means of supervision and control. On that basis, the decisions of Judges go beyond being merely persuasive and are binding in that they are the effective judicial control over Registrars. Accordingly, I am of the opinion that Judges decisions bind Registrars."
Brennan J was in the minority in that case although the extract from his reasons resonates with the penultimate sentence of the extract from the reasons of the Chief Justice and Deane J and what is expressed by Dawson J at p 124 as follows:
"An order made by a Registrar is reviewable by way of a hearing de novo. That means that the court reviewing the order begins afresh and exercises for itself any discretion exercised below by the Registrar. The parties commence the application again, subject to any restrictions in the rules upon the calling of evidence or provisions relating to the use before the court of evidence called before the Registrar. A hearing de novo involves the exercise of the original jurisdiction and 'the informant or complainant starts again and has to make out his case and call his witnesses'."
Turning to the passage quoted by the Registrar from the reasons of Dawson J, the broader context in which it appears commences at p 122 and is as follows:
"From those sections of the Family Law Act to which I have already referred, it may be seen that the delegation of the powers to the Registrars is a matter entirely for the Judges of the Family Court and that provision is made for the review of an exercise of power by a Registrar and for the removal of an application before a Registrar to a Judge. Order 36A, r 7(4) provides that a court reviewing an exercise of power by a Registrar shall proceed by way of a hearing de novo. It cannot be doubted that those provisions collectively provide an effective measure of supervision and control over the delegation of powers to a Registrar and the exercise of such powers as are delegated so that those powers continue to be exercised by the court, notwithstanding that they may be exercised in the first instance through a Registrar."
Referring back to the conclusion of the Registrar, the "supervision and control" to which he refers appears to focus on the scope to recognise that provision for de novo hearings is a constraint upon the exercise of decision‑making power. In the case before the court the issues were firstly whether taking into account Chapter 111 of the Constitution there had been a valid delegation of power and secondly whether the particular order made under that power was valid.
The passages drawn from the reasons of the Chief Justice, Deane J and Dawson J relate to constraints on the process of delegation, not to a process of oversight of determinations made under delegated authority. In my opinion, the Registrar misunderstood the force of the reasons.
Be that as it may, I do not have any difficulty with the sentiment expressed by the Registrar and also the resonance that it would have with considerations that have an immediate bearing upon practice at many points not the least of which would include costs. However there are 2 significant countervailing considerations that relate to the point canvassed by the Registrar. The first is that there is a distinction to be drawn between the impact of precedent and the issue of status. The second is that it is the responsibility of a delegate to exercise power according to law and that involves dealing with applications on their merits.
As to the first point I have no difficulty with the excerpt of the reasons expressed by Brennan J in Harris v Caladine (1991) 172 CLR 84. As much as it is self‑evident that the result of the appeal would speak authoritatively, such authority would extend no further than the context to which it applied. In any event the fact that a Judge may have spoken on a matter which has a bearing upon the exercise of discretion would be of no broader significance.
As to the second point, it need only be stated that if discretion is provided and it is not expressed to be limited then save for precedent, it is inappropriate for the person exercising the power to fetter that discretion.
Returning to the application, the facility for a party to obtain an order for the early return of a subpoena is expressed to be available upon the applicant satisfying the court that it is appropriate to grant leave. In considering whether to grant leave, it is appropriate for the court to reflect not only upon the evidence provided by the applicant and its submissions but also upon the impact of any order upon the witness. The effect of an order being made at this point is that it would be troubled one more time than would be the case if the documents the subject of the subpoena were produced either at trial or immediately prior to trial. I accept that any such additional inconvenience to the witness may be perceived to be relatively minor however in my opinion it is not outweighed by the plaintiff's need.
In the absence of there being any objection in my opinion it is preferable that an application once embarked upon be utilised for the ultimate purpose for which it was made rather than being dismissed or to draw on the example of the application previously made in this matter, simply languishes. On other occasions in similar circumstances where I have not been persuaded that it is appropriate to grant leave, I have provided the applicant with the choice of dismissing the application or adjourning it sine die to enable it to be utilised at a time when particular considerations may carry either more or less weight. It would seem to me that the latter option would leave open the prospect that it might be re-listed upon the provision of more useful evidence.