La Rosa v Chelvanayagam
[2004] WADC 42
•12 MARCH 2004
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: LA ROSA -v- CHELVANAYAGAM & ANOR [2004] WADC 42
CORAM: MULLER DCJ
HEARD: 5 MARCH 2004
DELIVERED : 12 MARCH 2004
FILE NO/S: CIV 3209 of 1994
BETWEEN: ANTONIO LA ROSA
Plaintiff
AND
DAVID CHELVANAYAGAM
First DefendantTHE MINISTER FOR HEALTH FOR THE STATE OF WESTERN AUSTRALIA
Second Defendant
Catchwords:
Appeal from Deputy Registrar's decision disallowing first defendant's application to dismiss plaintiff's action for want of prosecution - 10 year delay between issue of writ and date of application - No statement of claim served on first defendant - Explanation for delay unacceptable - Alleged inaction by first defendant - Plaintiff statute barred if appeal allowed - Prejudice to first defendant if action allowed to proceed
Legislation:
Nil
Result:
Appeal allowed
Representation:
Counsel:
Plaintiff: Mr I L K Marshall
First Defendant : Mr P D Quinlan
Second Defendant : Not applicable
Solicitors:
Plaintiff: Friedman Lurie Singh & D'Angelo
First Defendant : Blake Dawson Waldron
Second Defendant : Not applicable
Case(s) referred to in judgment(s):
Birkett v James [1978] AC 297
Hazart v Rademaker (1993) 11 WAR 26
Hughes v Gales (1995) 14 WAR 434
Jakovljavic v L & B Doslov [2000] WASCA 131
Khavounitis v NRMA Insurance Limited (1999) TASSC 2
Latrobe Country Credit Co‑op Ltd v Smith [1999] 1 VR 440
Lewandowski v Lovell (1994) 11 WAR 124
State of Queensland v J L Holdings Pty Ltd (1997) 71 ALJR 294
Tipperary Developments Pty Ltd v KMG Hungerfords (a firm) BC9703622, 12 August 1997
Ulowski v Miller [1968] SASR 277
Case(s) also cited:
Brisbane South Regional Authority v Taylor (1996) 186 CLR 541
Duke v Royalstar Pty Ltd [2001] WASCA 273
MULLER DCJ: This is an appeal from a decision of a Deputy Registrar of the Court on 17 November 2003 disallowing the first defendant's application to dismiss the plaintiff's action for want of prosecution.
On an appeal from a Deputy Registrar of the Court an application must be determined afresh: Hazart v Rademaker (1993) 11 WAR 26. The same affidavits that were before the Deputy Registrar were relied upon by the parties at the appeal. The plaintiff relied principally on the affidavit of John Nicholas D'Angelo sworn on 16 October 2003. The first defendant relied on his affidavit sworn on 11 September 2003.
The law to be applied
A convenient starting point in considering an application to dismiss proceedings for want of prosecution is O 1, r 4A of the Rules of the Supreme Court 1971 which provides:
"The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just termination of the issues bona fide in contention between the parties and the preparation of the case for trial."
The case management principles applicable to this type of situation were outlined in Hughes v Gales (1995) 14 WAR 434 where the learned Chief Justice repeated, and expressly agreed with, the following portion of the reasons for decision of Master Adams whose decision had been appealed against (at 449‑450):
" 'Unlike Lewandowski this is a case to which the principles and objects of case flow management contained in O 1 rr 4A and 4B of the Rules of the Supreme Court apply. As I pointed out in West Coast Clothing Co Pty Ltd v Sail America Foundation, unreported; SCt of WA (Master Adams) Library No 940482; 7 September 1994:
'These rules came into effect on 26 March 1993 and reflect the substantial public interest in the elimination of any unnecessary delays in determining proceedings before the court. The rules established the principles upon which the case flow management system in the court is now conducted with the objective of insuring that the processes and procedures of the court are to be conducted in a way that will eliminate unreasonable delays in progressing actions towards trial. As has been seen, the plaintiff took no step whatever in these proceedings during 1993 and early 1994 when this application was filed. The full effect of these rules upon applications of this nature has yet to be determined. They would certainly justify the acceptance of a shorter period than might otherwise have been necessary for the court to find that there has been inordinate delay. In an appropriate case, it may be that they would justify dismissal on the grounds of delay alone without the need for any other ingredient to be established. These are not matters that need to be decided in the present application, but I have no doubt that the failure of the plaintiff to take any steps to progress the action during 1993 and early 1994 is a further compelling reason why this action should be dismissed for want of prosecution.'
Those remarks have equal force in the present application. Furthermore as is pointed out in Seaman: Civil Procedure Western Australia at [3.010] with reference to O1 rr4A and 4B:
'It is suggested that henceforth the prejudice to the opponent in a very broad sense and the prejudice to the public interest in the expeditious progress of litigation will both require consideration, and that they will often be apparent without the necessity for evidence.' "
The legal principles applicable to an application to dismiss an action for want of prosecution were explained by Murray J in Lewandowski v Lovell (1994) 11 WAR 124 at 133 where he expressly adopted what had been said by Lord Diplock in Birkett v James [1978] AC 297:
"The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, eg, disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party."
In Hughes v Gales (supra) the Full Court decided with approval the decision in Ulowski v Miller [1968] SASR 277 where the relevant circumstances which it was said a court ought to consider were as follows:
"In these cases, as perhaps might be expected, a variety of opinions has been expressed in language differing in emphasis and sometimes in substance. I do not think it necessary or desirable to attempt to canvass them case by case. It must be remembered that we are dealing here with a discretion and in my view it ought not to be fettered by any absolute or inflexible rules. It clearly appears from these cases that five paramount matters to be considered are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute‑barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation."
It may be significant that the discretion to dismiss an action for want of prosecution may be exercised where the delay itself might lead to an inference of material prejudice: Jakovljevic v L & B Doslov [2000] WASCA 131. In his submissions on the law relating to applications of this nature counsel for the first defendant referred the Court to the decision in Latrobe Country Credit Co‑op Ltd v Smith [1999] 1 VR 440 at 448 as authority for the proposition that material delay is not confined to periods of total inactivity on the part of the plaintiff and may include a period in which the plaintiff is involved in continuing efforts to plead his case properly. This observation may be significant in an application such as this where, on the material before the Court, a significant part of the delay would seem to have been due to the plaintiff endeavouring to obtain the necessary expert assistance, both legal and medical, to formulate an appropriate statement of claim.
What must always be emphasised, where dismissal is sought, is that "the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim". State of Queensland v J L Holdings Pty Ltd (1997) 71 ALJR 294 at 296.
History of the action
The plaintiff's cause of action arose on or about 18 May 1993 and a writ of summons was filed with the Court just under 12 months later on 10 May 1994. The first significant delay then ensued. The writ was not served on the first defendant until almost 12 months later on 5 May 1995. The first defendant entered an appearance to defend the action on 8 May 1995.
Following entry of appearance a second significant delay occurred. Apart from providing the first defendant's solicitors with a report from a urological surgeon, Mr Anthony Low, dated 13 November 1994, nothing further happened until the plaintiff's solicitors wrote to the first defendant's solicitors on 27 March 1998, some two years eight months after the writ had been served, saying they had not received any instructions from their client despite having written to him on several occasions. It should also be mentioned that an earlier letter dated 30 July 1996 from the first defendant's solicitors to the plaintiff's solicitors enquiring whether their client intended to pursue his claim went unanswered.
In about April 1998 the plaintiff changed his solicitors. On 6 April 1998 John Nicholas D'Angelo wrote to the first defendant's solicitors advising them that his firm of solicitors was now acting on behalf of the plaintiff.
Following this change of solicitors another substantial delay occurred. The first defendant heard nothing more from the plaintiff's solicitors until 12 August 2003 when a notice of intention to proceed was filed with the Court.
The plaintiff's explanation for the delay
In his affidavit sworn on 16 October 2003 John Nicholas D'Angelo asserted that he received instructions from the plaintiff on 19 August 1997 and requested the plaintiff's file from his former solicitors. At this point in time the plaintiff apparently went overseas and only returned in late November 1997. Upon his return a meeting took place on 23 February 1998 when the plaintiff's solicitors expressed their preliminary views on the action and made recommendations. Another meeting occurred on 16 April 1998 when further medical information was considered and investigations continued. Between 26 May 1998‑6 August 1998 steps were taken to obtain expert advice and a preliminary opinion was obtained. On 25 August 1998 the advice given by the proposed expert was communicated to the plaintiff and a further meeting between the plaintiff and his solicitors occurred on 18 September 1998.
In 1999 investigations continued and various documents were obtained from several hospitals under the Freedom of Information Act. The plaintiff's solicitors encountered difficulties in obtaining a formal expert opinion and, according to the affidavit of John Nicholas D'Angelo, the person selected to give this expert advice withdrew his services on 9 April 1999. When this happened steps were taken to obtain another expert report which was not forthcoming until some 13 months later on 3 May 2000. On 29 June 2000 the plaintiff discussed this report with his solicitors and in‑house counsel was briefed for his opinion on the issue of liability. Another six months elapsed before preliminary advice was given on 9 January 2001. This advice led to further enquiries being made and a conference was held with the plaintiff on 26 February 2001 when it was decided to obtain more information from various hospitals. According to the affidavit from the plaintiff's solicitor this exercise took almost nine months to complete and it was not until 8 November 2001 that medical records at Sir Charles Gairdner Hospital had been inspected and copies obtained of documents not already held by the plaintiff. Following this another five months elapsed before in‑house counsel provided further advice on 18 April 2002 and that advice was discussed with the plaintiff on 17 June 2002. On 5 September 2002 the plaintiff's solicitors had a lengthy telephone consultation with the proposed expert witness and a request was made for a supplementary report which, with the expert being away until early October 2002, was not received by the plaintiff's solicitors until 24 February 2003. Following this there was another long delay. After discussing the expert's report with the plaintiff on 24 March 2003 the plaintiff's solicitors relocated their premises and completed the move on 1 July 2003. It was only after this last delay that notice of intention to proceed was served on the defendant on 12 August 2003.
Explanation for the delay
In his submission to the Court counsel for the first defendant suggested that there were three significant episodes of delay. The first was between the writ being filed on 10 May 1994 and served on the first defendant on 5 May 1995; the second was between the date of service of the writ on 5 May 1995 and the notification by the plaintiff's solicitors that they had lost contact with their client on 30 July 1998, an interval of approximately two and a half years; the third episode was the six year gap between 7 April 1998 when the plaintiff's current solicitors were engaged and 12 August 2003 when a notice of intention to proceed was filed.
Neither the initial delay of almost 12 months before service of the writ nor the delay before the current solicitors were instructed has been explained. There is no material before the Court to explain why a period of almost three and a half years elapsed during which the plaintiff's then solicitors issued a writ but took the matter no further before they withdrew and the current solicitors took over the conduct of the action. The third, and most significant, period of delay between the plaintiff's current solicitors being instructed in April 1998 and the issue of the notice of intention to proceed in August 2003 was said to have been due to a combination of factors including delays in obtaining medical evidence, the absence of the plaintiff for a period of time, the non‑availability of the original expert relied upon to provide a report and difficulties in communication between the plaintiff's solicitors and the plaintiff himself because of language problems. While counsel for the plaintiff has submitted that there is a reasonable explanation for these delays and, even if they were excessive, they were neither intentional nor contumelious, I am unable to find any reasonable grounds at all for excusing either the plaintiff or his solicitors for what happened over that period of almost six years. This finding applies, not only to the overall period of delay, but to the lapses of time between the various individual steps that the plaintiff and his solicitors took during this six year period. Examples of unreasonable delay between the individual steps taken to advance the action include the lapse of almost three years between the receipt of the expert's report on 3 May 2000 and the notice of intention to proceed given on 12 August 2003. Other examples of what appear to be unreasonable and inexcusable delays include the gap between the conference with the plaintiff on 26 February 2001 and the collection of medical records from Sir Charles Gairdner Hospital, a task not completed until nine months later on 8 November 2001. Following this there was another five month delay before counsel's opinion was obtained on 18 April 2002 and, even then, nearly five months elapsed until 5 September 2002 when the expert was asked to furnish a supplementary report. What followed after that was an inexplicable delay between obtaining the expert's supplementary report on 24 February 2003 and the issue of a notice of intention to proceed six months later on 12 August 2003. I am unable to accept excuses such as changes in staff, relocation to new premises or the difficulty with communicating with the plaintiff in Italian as reasonable excuses for the delay.
Alleged inaction by first defendant
It was submitted on behalf of the plaintiff that the first defendant has contributed to the delay by his own inaction. Reliance was placed on the decision of Khavounitis v NRMA Insurance Limited (1999) TASSC 2 where Underwood J said:
"The indicated remedy for a defendant where the plaintiff delays in setting down is not a summons to dismiss; rather it is that he should take the next step himself, which he has as much opportunity as the plaintiff to do. A defendant's right to 'let the sleeping dog lie', to which many of the cases elsewhere refer, still exists here, but where the defendant seeks to avail himself of it and to have an action dismissed for want of prosecution by the plaintiff, the defendant's own conduct in relation to the trial rules will in my view be under review almost as much as the plaintiffs."
These observations must be looked at in the light of the particular circumstances in which they were made. In that case the pleadings had progressed to the point where a statement of claim and a defence had been filed but there had been substantial episodes of inactivity on the part of both parties during the course of the proceedings. The defendant, in particular, had promised to draft and administer interrogatories for the plaintiff to answer but never did so. Almost four years elapsed before the interrogatories were provided. There were numerous other delays as well but the distinguishing factor in that case is that both parties were at fault. That is not the situation here. In this case, as counsel for the first defendant submitted, there was nothing for the defendant to do. Having entered an appearance to defend the action he was entitled to obtain details of his alleged negligence before responding in any way. These details were never forthcoming. But the first defendant did not let the matter rest altogether. On 30 July 1996, as I have already said, he wrote to the plaintiff's then solicitors to enquire whether their client was proceeding with the action. No response to this letter was ever received. I am certainly not persuaded that inaction on the part of the first defendant has been established.
Even if I am wrong on this point it does appear that tardiness on the part of a defendant does not of itself justify delay on the part of the plaintiff. In Jakovljevic v Doslov unreported decision of FCt SCt of WA; [2000] WASCA 131 delivered 11 May 2000 there had been a delay of 18 months between the issue of the writ and its service and other delays contributed to by the tardiness of the defendant in pursuing third party proceedings. In dealing with this issue of delay by the defendant, Steytler J said at p 9:
"While it is true that the remaining periods of delay were contributed to by the tardiness of the third party proceedings the authorities make it plain that inaction by a defendant does not of itself justify delay on the part of the plaintiff. (See, for example, Birkett v James (above) at 329). It might be so that 'in some cases inaction by a defendant in the face of impending prejudice to him if delay continues may render a later claim of actual prejudice less creditworthy, and the prejudice, if established, a less weighty factor' (Stollznow v Calvert [1980] 2 NSWLR 749 at753, per Moffitt P) but this does not provide a plaintiff with an excuse for delay on its part. In this case the appellant could, and should, as the learned Judge below found, have taken steps to progress the matter."
Prejudice to the first defendant
Over 10 years has elapsed since the first defendant treated the plaintiff. In that time only a writ of summons has been served and an appearance to defend entered. No statement of claim has been served on the first defendant. The case against the first defendant has never been identified except in the broadest of terms. Notwithstanding these factors counsel for the plaintiff submitted that the delay has not resulted in serious prejudice to the first defendant such as to make a fair trial impossible. I am unable to agree with this submission. I believe the first defendant has discharged the onus of establishing a substantial risk that it will not be possible to have a fair trial of the issues or that he has been seriously prejudiced by the defendant's conduct.
Counsel for the first defendant submitted that the first defendant's capacity to recollect events that occurred so long ago will have been adversely affected by the passage of time. I agree with this observation. The period that has elapsed since the alleged negligent treatment occurred is so long that any reasonable person would have major difficulty in recollecting the sequence of events as they occurred and the precise details of any advice given or of medical procedures adopted at the time.
It was also submitted that difficulties will now arise in identifying and locating potential witnesses involved in the care of the plaintiff at the relevant time. I accept this submission as well. Given the length of the plaintiff's inaction after the writ was issued it would not surprise me if the first defendant assumed nothing was going to happen and was less than diligent in locating and interviewing potential witnesses who might have been able to assist his defence if the action proceeded to trial.
The submission by counsel for the first defendant that further prejudice may arise from the potential difficulty in obtaining expert evidence as to the appropriate standard of care applicable in 1993 when it is reasonable to suppose there had been significant advances in methods of treatment over this period is, perhaps, of less substance. What is more significant, however, is the non‑availability of Dr Anthony Low who prepared a report in November 1994 in which he concluded that there was no obvious negligence on the part of the first defendant. Dr Low, who was apparently the only expert to provide a report contemporaneously with the event giving rise to the action, has since died and, while his report might be admissible in evidence pursuant to the provisions of s 79C of the Evidence Act, the first defendant will still labour under the major disadvantage of not being able to obtain elaboration on that report or possibly pursue other lines of enquiry which might have been open if the medical expert were alive and able to assist.
Another telling area in which the first defendant's defence has been seriously prejudiced is his lack of knowledge, even at this very late stage, of what he did that is said to be negligent. The chronology of medical events annexed to the affidavit of the plaintiff's current solicitor does not help at all in this vital area. I agree with the submission made by counsel for the first defendant that what needed to be known, and known from an early stage in the proceedings, were the precise allegations of negligence relied upon by the plaintiff. Had these been known at an early point in time the first defendant might have been able to answer the plaintiff's case notwithstanding the delay that has occurred. But these details were not known then and are still not known now. I believe it would be materially prejudicial to the first defendant to expect him to address those allegations 10 years after the event.
Apart from the delay of 10 years that has already occurred, and which in my view has been highly prejudicial to the first defendant's capacity to defend himself, I must also take into account the further delay that will undoubtedly take place in getting the matter to trial particularly as, even at this point six months after this application was brought, no statement of claim has yet been filed. Tipperary Developments Pty Ltd v KMG Hungerfords (a firm) BC9703622, 12 August 1997.
Prejudice to the plaintiff
I am only too well aware that if the plaintiff's action is dismissed for want of prosecution his cause of action will be statute barred. While it is impossible to evaluate the merits of his claim I accept that he has every intention of pursuing the action and believes he would be awarded substantial damages if successful.
Conclusion
While the effect of dismissal of the action would be to statute‑bar the plaintiff the continuation of the proceedings would potentially put the first defendant in a position of material disadvantage that he would not have been in had the action been prosecuted timeously. I have already explained the general and specific areas of prejudice to the defendant and I do not believe it is any answer to these concerns to assume, as counsel for the plaintiff apparently has done, that all necessary documents, medical records and proofs of evidence have been preserved by the first defendant and can be used by him to assist in his recollection of events; nor is it any answer to say that the medical and nursing staff who provided care to the plaintiff are readily identifiable from the records and will be capable of being located and asked to testify at the trial of the action, when, given the time that has elapsed, many of the documents may no long be available and witnesses may either have died or moved outside the jurisdiction. The matter does not end there. I am unable to accept that the first defendant was ever told of the precise nature of the plaintiff's complaints. It is no answer to say, as counsel for the plaintiff has endeavoured to do, that the initial letter from the plaintiff's former solicitors dated 9 May 1994 and the indorsement on the writ of summons gave the first defendant sufficient information of the nature and extent of the plaintiff's condition to put him on notice of the case he had to answer and enable him to gather the evidence he would need to meet the plaintiff's claim. Only a detailed statement of claim, followed by proper discovery, might address that issue.
In the end I must be guided by the principles explained in the various decisions that have been referred to and exercise my discretion in the manner explained by Bray CJ in Ulowski v Miller (supra) at p 280:
"In these cases, as perhaps might be expected, a variety of opinions has been expressed in language differing in emphasis and sometimes in substance. I do not think it is necessary or desirable to attempt to canvass them case by case. It must be remembered that we are dealing here with a discretion and in my view it ought not to be fettered by any absolute or inflexible rules. It clearly appears from these cases that five paramount matters to be considered are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation."
I am satisfied that the length of the delay is inordinate and the explanations for such delay unacceptable. While I realise that the dismissal of the action will leave the plaintiff statute‑barred I find that the prejudice to the defendant if the action is allowed to proceed is so great as to seriously jeopardise his capacity to defend any action.
I would allow the appeal.
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