Justin Robert Holland by his next friend Roberta Ashworth Holland v The Minister for Health (in his capacity as the Board of Management of King Edward Memorial Hospital for Women)
[2001] WADC 215
•12 SEPTEMBER 2001
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: JUSTIN ROBERT HOLLAND by his next friend ROBERTA ASHWORTH HOLLAND -v- THE MINISTER FOR HEALTH (in his capacity as THE BOARD OF MANAGEMENT OF KING EDWARD MEMORIAL HOSPITAL FOR WOMEN) & ANOR [2001] WADC 215
CORAM: NISBET DCJ
HEARD: 3 AUGUST 2001
DELIVERED : 12 SEPTEMBER 2001
FILE NO/S: CIV 6452 of 1990
BETWEEN: JUSTIN ROBERT HOLLAND by his next friend ROBERTA ASHWORTH HOLLAND
Plaintiff
AND
THE MINISTER FOR HEALTH (in his capacity as THE BOARD OF MANAGEMENT OF KING EDWARD MEMORIAL HOSPITAL FOR WOMEN)
First DefendantCHRISTOPHER GUY LEACH
Second Defendant
Catchwords:
Practice and procedure - Motion for leave to enter judgment - Lengthy delay between reasons and motion - Supervening events - Plaintiff under a disability
Legislation:
District Court of Western Australia Act 1969
Fatal Accidents Act 1959
Hospital and Health Services Act 1927
Limitation Act 1935
Result:
Motion refused
Consequential Orders made
Representation:
Counsel:
Plaintiff: Mr E M Heenan QC and Mr P A Monaco
First Defendant : Mr G T W Tannin and Ms K McDonald
Second Defendant : Mr C J L Pullin QC and Mr D Wallace
Solicitors:
Plaintiff: Godfrey Virtue & Co
First Defendant : State Crown Solicitor
Second Defendant : Edwards Wallace
Case(s) referred to in judgment(s):
Black v The City of South Melbourne (1964) 38 ALJR 309
Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
Christadopoulos v Roundtree & Co (Aust) Pty Ltd [1971] VR 378
Green v Rozen [1955] 2 All ER 797
James Hardie and Co Pty Ltd v Seltsam Pty Ltd (1998) 73 ALJR 238
Mummery v Irvings Pty Ltd (1956) 96 CLR 99
Puntoriero v Water Corporation (1999) 199 CLR 575
R v Rogers (No 2) (1992) 29 NSWLR 179
Scott v State of Western Australia (1994) 11 WAR 382
Smith v Australian National Line Ltd (1998) 20 WAR 219
Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69
Williams v Zupps Motors Pty Ltd [1990] 2 Qd R 493
Wood v Public Trustee (1995) 16 WAR 58
Case(s) also cited:
Australian National Airlines Commission v Newman (1987) 162 CLR 466
Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214
Birkett v James [1978] AC 297
Blair v Curran and Curran (1939) 62 CLR 464
Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213
Bunning v Cross (1978) 141 CLR 54
Burstall v Beyfuss (1884) 26 ChD 35
Campbell v Pye (1954) 54 SR (NSW) 308
Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR (NSW) 195
Christie v Baker [1996] 2 VR 582
Collier v Howard, unreported; SCt of NSW; 23 April 1996
Crowley v Glissan (1905) 2 CLR 402
Darke v Etherington [1963] Qd R 375
Dietz v Lennig Chemicals Ltd [1969] 1 AC 170
Doonan v Beecham (1953) 87 CLR 346
Dorman v J W Ellis & Co Ltd [1962] 2 WLR 250
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Ex parte: Amalgamated Engineering Union (Aust Section); Re Jackson (1937) 38 SR (NSW) 13
Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630
George Wimpey & Co Ltd v BOAC [1955] AC 169
Gliddon v Gliddon [1968] WAR 195
Harris v Raggett [1965] VR 779
Hart v Hall & Pickles Ltd [1969] 1 QB 405
Holland v Board of Management of KEMH for Women (1995) 14 SR (WA) 305
Holland v Metropolitan Health Services Board [2001] WASCA 155
Hughes v Gales (1995) 14 WAR 434
Hughes v Minister for Health in his capacity as Board of East Pilbara Health Service [1999] WASCA 131
Hughes v Wilton [1961] QWN 38
International General Electric Co of New York v Commissioners of Customs and Excise [1962] Ch 784
Jacobs v London County Council [1935] 1 KB 67
Jarvinen v Minister for Health (WA) (1998) 19 SR (WA) 338
Katundi v Hay [1940] St R Qd 39
Knight v Concord Municipal Council [1970] 3 NSWR 295
Lewandowski & Ors v Lovell (1994) 11 WAR 124
Littlewood v George Wimpey & Co and British Overseas Airways Corporation [1953] 1 WLR 426
Littlewood v George Wimpey & Co Ltd and British Overseas Airways Corporation [1953] 2 QB 501
Magman International Pty Ltd & Ors v Westpac Banking Corporation (1991) 32 FCR 1
Marshall v Director-General Department of Transport [2001] HCA 37
Minero Pty Ltd v Redero Pty Ltd, unreported; SCt of NSW; 3288/95; 29 July 1998
Moore v Western Australian Government Railways Commission & Commonwealth of Australia (1990) 3 WAR 409
Morgan v Banning (1999) 20 WAR 474
Neil Pearson & Co Pty Ltd v Comptroller-General of Customs (1995) 38 NSWLR 445
Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626
Permanent Building Society (in Liq) v Wheeler & Ors, unreported; SCt of WA; Library No 940146; 25 March 1994
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Quinn v Llesna Rubber Co Pty Ltd [1989] VR 347
Ravot v Commissioner of Railways [1965] NSWR 1296
Rhodes v Swithenbank (1889) 22 QBD 577
Rogers v The Queen (1994) 181 CLR 251
Silver Standard Mines Ltd v Granby Mining Company Ltd (1972) 31 DLR (3d) 356 BCCA
Smith v Maloney (1998) 19 WAR 209
Smith v Tabain (1987) 10 NSWLR 562
State Energy Commission of Western Australia v Alcoa of Australia Ltd (1995) 17 WAR 131
Stephenson v Garnett [1898] 1 QB 677
Stirling Marine Services Pty Ltd v Austral Piling & Constructions Pty Ltd & Sedgwick Ltd, unreported, SCt of WA; Library No 970620; 21 November 1997
Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
Trawl Industries of Australia Pty Ltd (in Liq) v Effem Foods Pty Ltd (1992) 36 FCR 406
Visic v State Government Insurance Office (1990) 3 WAR 122
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269
Walton v Gardiner (1993) 177 CLR 378
Wardley Australia Ltd & Anor v State of Western Australia (1992) 175 CLR 514
Water Board v Moustakas (1988) 180 CLR 491
Wentworth v Rogers & Anor, unreported; SCt of NSW; 10 September 1996
White v Brunton [1984] QB 570
Wilsmore & Anor v Court [1983] WAR 190
NISBET DCJ: The history of this matter can be traced through [1999] WADC 5, [1999] WADC 104, [2000] WADC 18 and the decision of the Full Court in [2001] WASCA 155.
Following the judgment of the Full Court delivered 21 May 2001, the first defendant applied by notice of motion dated and filed 23 May 2001 for the following orders:
"1.The first defendant be granted leave to set down a motion for judgment in favour of the first defendant pursuant to the decision her Honour Judge Kennedy delivered on 9 August 1995.
2.The plaintiff's action against the first defendant is hereby dismissed.
3.Judgment be entered in favour of the first defendant.
4.The plaintiff pay the first defendant's costs of this application."
By application to chambers by summons dated 29 May 2001 filed 30 May 2001 as amended 3 August 2001 the plaintiff applied for orders that:
"1.A declaration that the plaintiff Justin Robert Holland is, and at all material times has been, a person under a disability within the meaning of O 70 r 1.
2.That the name of the first defendant be amended to 'the Minister for Health (in his capacity as the Board of Management of the King Edward Memorial Hospital for Women)'.
3.That it be adjudged and declared that the order for the discontinuance of the plaintiff's action against the former first defendant the Board of Management of King Edward Memorial Hospital for Women and now the Minister for Health (in his capacity as the Board of Management of King Edward Memorial Hospital for Women) of May 1996 is invalid and ineffective as it was not approved by the Court pursuant to O 70 r 10.
4.The plaintiff be at liberty to proceed with his action against the first defendant, the Minister for Health (in his capacity as the Board of Management of King Edward Memorial Hospital for Women).
5.The plaintiff have 21 days from the date of this order within which to file an amended statement of claim to include such allegations as he desires to advance against the first defendant."
Finally, the plaintiff applied by summons to chambers dated 9 July 2001 and filed the same day for leave to further amend his statement of claim in accordance with a minute dated 3 July 2001 and for consequential orders in relation thereto, for discovery and for revocation of the order made by the Court 10 June 1996 providing for separate trials on the issues of liability and quantum.
First defendant's application for leave to enter judgment
The first defendant's notice of motion for leave to enter judgment against the plaintiff is resisted by the plaintiff who says:
1.notwithstanding he attained the age of majority on 22 November 1995 he is so disabled that he should be regarded as being and having been at all material times a disabled person within the meaning of Rules of the Supreme Court O 70 and, that being the case, the purported discontinuance of his action against the first defendant required the approval of the Court which, not having been obtained, renders that step in the proceedings a nullity.
2.the decision of Kennedy DCJ is interlocutory, not final and hence not binding on me.
3.he wants to re-litigate the issue of the first defendant's defence pursuant to the provisions of s 47A of the Limitation Act 1935 as amended, with evidence being led in a trial.
4.there is no impediment to the issue being re-litigated, it having been, as stated, an interlocutory decision with no final or binding effect such that the principles of res judicata or issue estoppel do not apply.
The first defendant's notice of motion is also resisted by the second defendant because he wants to pursue his contribution proceedings by way of the third party notice which I initially gave leave to issue on 29 October 1999 and recalled on 1 February 2000. That leave, in effect, has been reinstated by the decision of the Full Court in its judgment at [39]:
"The reasoning and above conclusions remove the reason for the recall by Judge Nisbet of his orders of 29 October 1999 allowing the plaintiff to amend his statement of claim and to give leave to Dr Leach to issue a third party notice against the Board. In my view, his Honour was entitled on that occasion to make the orders which he did."
This, says the second defendant, should be carried into effect by denying the first defendant leave to enter judgment, keeping it in the proceedings until final judgment so that he may pursue his contribution proceedings.
As to the question of whether or not the discontinuance is valid, this was purportedly effected by a document entitled "Minute of Consent Orders pursuant to Order 43 Rule 16" prepared by the solicitors for the plaintiff and signed by them and by the solicitor for the first defendant which simply reads:
"We hereby consent that the action by the plaintiff against the first defendant be discontinued and that there be no order as to costs."
This was filed on either 27 May 1996 or 28 May 1996 (both stamps appear on the reverse of the document and it is further endorsed in manuscript which is partly indecipherable but which appears and may read or be the abbreviation for "orders as asked" and initialled by a Registrar or an acting Registrar 28 May 1996). Whilst this particular argument has not been addressed as far as I can tell, this step may have been flawed in any event because by O 23 r 2(3) a plaintiff may not discontinue without the leave of the Court after receipt of the defence and the taking of other steps in the action, both of which had occurred in this case. Clearly too, O 43 r 16(2) confers a discretion upon a Registrar to permit such a consent to be acted upon and, ordinarily speaking the Court will only approve a consent order where it would have made orders in the terms of the consent following a trial - see generally Green v Rozen [1955] 2 All ER 797. This would appear to be consistent with O 43 r 16(3) which suggests that a consent order has only the same force and validity as it would have had had it been made in a hearing by the Court. And, it is trite to say, a Court may not order a party to discontinue a proceeding. It may order the action be struck out etc, but not that a party discontinue.
The substantive argument which was addressed in relation to this matter was that because the plaintiff was a “person under a disability” and that the consent order just referred to was in effect a settlement or compromise of the manner in which the plaintiff’s claim against the first defendant was to be dealt with following the delivery of judgment by Kennedy DCJ, that step could not have been taken in the action unless it was approved by the Court. The Full Court commented upon this in its reasons in [2001] WASCA 155 at [38]:
"Further, it may well be that the discontinuance by the plaintiff is a nullity or, at least, liable to be set aside, since it was not approved by the Court under O 70 r 10 because the plaintiff was a ‘disabled person’. See Jarvinen v Minister for Health (WA) (1998) 19 SR (WA) 338 per Fenbury J at 341.”
In that decision his Honour seemed to assume that a notice of discontinuance and a deed of compromise entered into by an infant each required the Court’s approval pursuant to the provisions of O 70 r 10 but in that case the purport of the discontinuance, accompanied as it was by a deed of release was more readily construed as a settlement or compromise of suit than is the case here. In Jarvinen the deed of release provided for a release and indemnity from all existing and future demands, claims etc arising out of the same subject matter as the action. Here, a simple discontinuance would not, per se, have prevented the institution of further proceedings arising out of the same events. RSC 2(2), expressly provides that the giving of a notice of discontinuance is not a defence to a subsequent action. See generally The Kronprinz (1887) 12 App Cas 256 at 259, 262. However, it should also be noted that in the event the plaintiff had sought leave to discontinue, as he should have done in conformity with the rules, the Court may well have refused leave to discontinue the action ‘if the plaintiff is not wholly dominus litis’: The Supreme Court Practice [1985] 21/2-5/15. [Dominus litis – "Master of the Litigation – in Roman law the party to a case as distinct from his procurator or legal representative; in English law, a person who controls an action and can dispose of it as he wishes …” – The Oxford Companion To Law p 374]
It is as well to remember the scheme of the rules of court in all of the Australian jurisdictions and in England which provide for court approval of settlements or compromises of suits made on behalf of infants and persons otherwise under a legal disability is also:
“… to provide means by which a defendant may obtain a valid discharge from an infant’s or patient’s claim. At common law a contract of compromise out of court does not bind such a plaintiff unless it can proved to have been for his benefit. No prudent defendant wishes to take a risk on this point. A judgment in proceedings or an order approving a settlement of proceedings under r 10 does bind the plaintiff and gives the defendant a discharge. Further machinery has been provided [in England] since 1979, by which a binding approval of a settlement can be obtained by originating summons without the need to commence an action.”: The Annual Practice [1985] 80/10-11/1 (my emphasis).
Hence, it seems to me, that in a situation where a plaintiff required leave to discontinue his action, and where that leave may have been withheld by a court not satisfied as to whether or not he was dominus litis (clearly the case here) and, further, where the purported method of determination was by a consent order which in its terms sought to circumvent the requirements of the rules that leave be given to discontinue, then that consent order may in truth be categorised as a settlement or compromise which required the Court’s approval. Further, it is in my opinion quite arguable that the Registrar of this Court endorsing the consent order as some form of approval pursuant to O 43 r 16 did not truly exercise the discretion which was vested in him to consider whether the order was properly recorded and treated as an order of this Court.
In any event, this Court exercises the same jurisdiction as the Supreme Court in personal injuries claims and accordingly is possessed of an inherent power to approve, or withhold approval of a proposed settlement or compromise if the Court is satisfied that the proposed compromise or settlement is or is not for the benefit of the person under a disability, as the case may be. This is the effect of s 50(2) of the District Court of Western Australia Act 1969 (as to which see my decision at [2000] WADC 18 at [8]) and the decision of the Full Court in Wood v Public Trustee (1995) 16 WAR 58 at 62.
Accordingly, in my opinion, the purported discontinuance of this action by the plaintiff in the manner previously described is a nullity it having been entered without the leave of the Court, alternatively without its approval.
The next issue falling for determination is the proper categorisation of the decision of Kennedy DCJ as interlocutory or final and, in consequence, whether judgment should now be entered by the first defendant against the plaintiff. As to whether the judgment of Kennedy DCJ made 9 August 1995 is interlocutory or final the answer was provided by the Full Court in [2001] WASCA 155 at [36]:
“What does Seltsam and the other authorities say to the circumstances of this case? Here the orders of Kennedy DCJ of 9 August 1995 purported to answer a preliminary question. Nothing more. The orders were clearly interlocutory. They did not constitute a final judgment on the record in favour of the Board. The Board could have chosen to proceed to seek judgment but it did not. Instead it required the plaintiff’s consent to a notice of discontinuance. Having chosen its course, it is difficult to see how the Board can now contend that it has been found not liable to the plaintiff by a final judgment."
Clearly therefore the decision of Kennedy DCJ of 9 August 1995 was interlocutory and not final. The importance of this is that a court is never shut out of reviewing its own interlocutory orders at any time: Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69 where Jacobs J said at 96, 97:
"The order striking out the statement of claim was thus not a consent order and furthermore it was an interlocutory order. Being an interlocutory order it was able to be reviewed by the Court at any time before the final disposition of the action. The power of the court so to review it continued throughout the hearing of the subsequent motion to dismiss however unlikely it was that the exercise of that power would affect the result."
This being the case, the issue which now falls for determination is, having a discretion to review the orders proposed by Kennedy DCJ which might flow from her reasons, whether I should review it or, at least refuse to permit judgment to be entered upon it as sought by the first defendant unless and until the trial judge is satisfied on the evidence presented at trial that the first defendant's defence pursuant to the provisions of s 47A of the Limitation Act 1935 succeeds. If the decision of Kennedy DCJ constitutes a res judicata or an issue estoppel, there would be no point in denying the first defendant its motion. But in circumstances where an interlocutory order can be reviewed at any time by a court it is hardly surprising that the weight of authority favours the proposition that the decision of Kennedy DCJ does not operate as a res judicata or an issue estoppel: Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935; R v Rogers (No 2) (1992) 29 NSWLR 179. In Carl Zeiss Lord Guest said:
"The requirements of issue estoppel still remain (1) That the same question has been decided; (2) That the judicial decision which is said to create the estoppel was final; and (3) That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies." (p 935)
In Rogers Gleeson CJ held that a confession ruled inadmissible in one criminal prosecution as having been involuntarily made did not preclude its use in a different prosecution because, in effect, the earlier ruling was interlocutory in the sense that it was made during the running of the trial and, additionally, it was in point of fact a different question before the court constituted by it being the subject of a different complaint.
The next matter for consideration is, in the absence of any res judicata or issue estoppel, whether it would constitute an abuse of the court's process to permit an argument to go forward which was bound to fail, having regard to what the first defendant submitted was the strength of its case under s 47A of the Limitation Act 1935. In my opinion, in a trial at which the evidence may come out differently from that which the parties agreed for the purpose of the determination of the preliminary question, this, together with a reappraisal of Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105 since the decisions in Smith v Australian National Line Ltd (1998) 20 WAR 219 and Puntoriero v Water Corporation (1999) 199 CLR 575, could very well mean that the point would be decided differently in which case there could be no abuse of process. In this regard see Williams v Zupps Motors Pty Ltd [1990] 2 Qd R 493.
Many discretionary factors were advanced by the first defendant as to the reasons why I should exercise my discretion to grant it leave to enter judgment against the plaintiff. Among these were that Her Honour's decision was based upon an agreed set of facts where the parties were represented. Further there is evidence that the first defendant has altered its position to its detriment by disclosing evidence it otherwise may not have revealed. These are not as compelling as the countervailing considerations suggesting that my discretion should be exercised the other way. Those countervailing considerations are that the first defendant chose the means by which it sought to implement Her Honour's decision and, as it transpires it now wishes it had proceeded a different way. It is as much for the protection of defendants as plaintiffs that the court insists on approving settlements and compromises made by infants and persons under a disability and in my opinion the defendant is bound by its election not to proceed as the rules required it to if it wanted to obtain a final judgment against the plaintiff.
More compelling than all of these discretionary factors however is the position of the second defendant. Dr. Leach is now in the position that by reason of the decision of the Full Court restoring my orders granting the plaintiff leave to amend his statement of claim to add further particulars of negligence which attack his role in the care of the plaintiff following his delivery of his mother, which matters are arguably within the province of the first defendant, without him being able to claim contribution or indemnity from the first defendant if it was dismissed from the suit, a considerable injustice may be done to him. This would be an injustice of precisely the type contemplated by the High Court in James Hardie and Co Pty Ltd v Seltsam Pty Ltd (1998) 73 ALJR 238. Additionally, the High Court recognised in that case that a court could refuse to enter judgment, even by consent, if it would deprive a party of a right to pursue a contribution or indemnity:
"The appellant might have sought deferral of the entry of judgment in favour of the respondent until determination of the issue of liability of the appellant to the plaintiff for the purposes of the appellant's contribution claim against the respondent. In the process of negotiation between the parties, various options might have been available. A release agreed between the plaintiff and one tortfeasor would not necessarily have released the others. Further, the respondent concedes that, if the plaintiff had released the respondent without a judgment, then the appellant could have maintained its action for contribution.
Against any decision by the tribunal to enter consent judgment as sought by the respondent and the plaintiff but against the wishes of the appellant, the appellant would have had standing to appeal. By that means, the appellant would have kept in play the question whether it was entitled to recover contribution from the respondent. This would have been achieved without falling foul of the procedural difficulties which divided the New South Wales Full Court in Castellan v Electric Power Transmission Pty Ltd and were discussed by Brennan J in Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd." (per Gaudron, Gummow JJ at par 19 and par 20).
For these reasons, in my opinion the balance favours refusing the first defendant's motion.
Plaintiff's application dated 29 May 2001
The first order sought by the plaintiff in this application is a declaration that he is, and at all material times has been, a person under a disability within the meaning of O 70 r 1. Relevantly, a "person under disability" in this rule means:
"(c)A person not being a person referred to in paragraphs (a) or (b), who, by reason of mental illness, defect or infirmity, however occasioned, is declared by the court to be incapable of managing his affairs in respect of any proceedings to which the declaration relates;"
Clearly therefore I have the power to make the order sought. There seems to have been no dispute between the parties but that the plaintiff is a person under a disability within the meaning of the rule and this proposition appears to have been accepted by the Full Court in its judgment in [2001] WASCA 155. Apart from this there is an abundance of evidence in the court record demonstrating the plaintiff's disability. See for example the hospital's answers to interrogatories and the report of Professor Colditz dated 17 January 1993 Exhibit PM1 to the affidavit of P. Monaco sworn 31 January 2001. Accordingly I have no difficulty making the declarations sought in par 1 of the summons. The order sought in par 2 of the summons is unremarkable and reflects changes to the legislation, namely the Hospital and Health Services Act 1927 and there will be an order amending the name of the first defendant to "The Minister for Health (in his capacity as the Board of Management of the King Edward Memorial Hospital for Women)".
As to the order sought in par 3 of the summons for a declaration as to the status of the discontinuance, for the reasons previously expressed I have no difficulty in making an order to the general effect sought however, strictly, the order should be in the following terms:
"The consent order filed pursuant to the provisions of O 43 r 16 and made 28 May 1996 be and is hereby set aside."
As to the relief sought in par 4 of the summons this order will be made in consequence of this decision. As to the relief sought in par 5 however it seems to me that this has been overtaken by events, the event being the plaintiff's application by summons dated 9 July 2001, to which I will now turn.
Plaintiff's application by summons dated 9 July 2001
There was only one significant controversy in relation to this application and that is whether the proposed amendments in fact constitute a fresh cause of action which would be barred by operation of s 47A of the Limitation Act 1935. By reason of the view that I take about the nature of the amendments it is not necessary for me to decide upon the first defendant's submission that insofar as the plaintiff is concerned the provisions of s 40 of the Limitation Act 1935 are excluded by s 47A, citing Scott v State of Western Australia (1994) 11 WAR 382 per Rowland J at 383. For the sake of completeness however it should be pointed out that that decision concerned the inter-relation between the Fatal Accidents Act 1959 and s 40 of the Limitation Act 1935 which is not this case. And, further, it is arguable that the view expressed by the first defendant in its submissions is wrong in any event and that s 47A of the Limitation Act 1935 does not apply to this plaintiff: see the judgment of Malcolm CJ and Kennedy J in the Full Court in this matter [2001] WASCA 155 at par 2 and par 3.
The foregoing observations to one side, this argument may be very shortly disposed of. The proposed amendments to the statement of claim do not constitute a new cause of action. They are properly categorised as simple changes to particulars which, no matter how extensive and far reaching they may be seen to be by the first defendant, they do not constitute a new cause of action. In this regard it is firstly as well to remember what particulars are and in this regard the oft stated dicta of the High Court in Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 110 describes their function. Additionally it is apt to repeat an abbreviated quotation from Jacob and Goldrein "Pleadings: Principles and Practice" Sweet and Maxwell 1990 at 168 and 169 which analyses the purpose of particulars as follows:
"(a)To inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved.
(b)To prevent the other side being taken by surprise …
(c)To enable the other side to know what evidence they ought to be prepared with and to prepare for trial …
(d)To limit the generality of the pleadings or of the claim or of the evidence.
(e)To limit and define the issues to be tried and as to which discovery is required.
(f)To tie the hands of the party so that he cannot without leave go into any matter not fairly included therein, and conversely if a party should omit to request or apply for an order for particulars which ought to have been given, the opposing party will be entitled to give evidence at the trial of any fact which supports any material allegation in his pleading.
Particulars are not a substitute for:
(a)Necessary averments in the pleading.
(b)To state the material facts omitted in order, by filling the gaps, to make good an inherently bad pleading; nor should a request for particulars be used
(c)To obtain information which can only be obtained by interrogatories and the court will not sanction any attempt to administer interrogatories in the guise of seeking particulars."
The proposed amendments to the statement of claim constitute particulars and not a new cause of action and, again, no matter how extensive they may be seen to be no question arises of their being a back door means of avoiding a limitation provision: Black v The City of South Melbourne (1964) 38 ALJR 309 and see also Christadopoulos v Roundtree & Co (Aust) Pty Ltd [1971] VR 378.
This controversy having been determined, there is no impediment to orders being made in the terms of par 2, par 3, par 4 and par 5 of this summons.
There is a smaller controversy in respect of the order sought in par 6 of the summons seeking a revocation of the order made on 10 June 1996 providing for separate trials of the issues of liability and assessment of damage. The plaintiff previously applied for such an order which I refused because it was likely to cause further delay to Dr. Leach, a party whose conduct of the litigation to that stage I had categorised as being blameless. It needs to be said, it still is blameless, however as can be seen by the history of this matter since that decision was made, circumstances have changed considerably. Trial dates have not been allocated. There will be an appeal against this judgment more likely as not and it seems to me that no purpose will now be served by splitting the issues of liability and assessment of damages into separate trials.
With regard to par 7 of the summons there is only one other order I would suggest to the parties but in all of the circumstances I will not make it without hearing from them, namely whether I should continue to "case manage" this action and, if so, when I (or some other Judge of the court) should next bring the parties into court to ascertain what progress has been made in the conduct of the litigation.
I will make these reasons available to the parties in order that they may bring in minutes of proposed orders that reflect them.
2
13
4