Murphy v Minister for Health
[2007] WADC 183
•12 October 2007 typed from tape and edited by Trial Judge
MURPHY -v- MINISTER FOR HEALTH [2007] WADC 183
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 183 | |
| Case No: | CIVO:117/2007 | 12 OCTOBER 2007 | |
| Coram: | BOWDEN DCJ | 12/10/07 | |
| PERTH | |||
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application granted Plaintiff given leave to bring proposed action against the defendant | ||
| PDF Version |
| Parties: | ELAINE SMITH MURPHY MINISTER FOR HEALTH |
Catchwords: | Limitations Action for personal injury Delay occasion by reasonable cause Prejudice Exercise of discretion |
Legislation: | Limitations Act 1935 |
Case References: | Baker v Albany Shire Council (1994) 14 WAR 46 Blythe [2007] WADC 175 Cairns v Minister for Education, unreported; SCt of WA; Library No 970679; 21 November 1997 Matheson v Commissioner for Main Roads (2001) 25 WAR 269 Perry v City of Armadale [2004] WASCA 167 Quinlivan v Portland Harbour Trust [1963] VR 25 Town of Kwinana v Vidovich [2004] WASCA 274 Wills v Commissioner of State Taxation 39 ATR 455 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MINISTER FOR HEALTH
Defendant
Catchwords:
Limitations - Action for personal injury - Delay occasion by reasonable cause - Prejudice - Exercise of discretion
Legislation:
Limitations Act 1935
Result:
Application granted
Plaintiff given leave to bring proposed action against the defendant
(Page 2)
Representation:
Counsel:
Plaintiff : A D Gill
Defendant : G Raithel
Solicitors:
Plaintiff : Chapmans
Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Baker v Albany Shire Council (1994) 14 WAR 46
Blythe v The State of Western Australia & Anor [2007] WADC 175
Brisbane South Regional Hospital Authority v Taylor (1996) 186 CLR 541
Cairns v Minister for Education, unreported; SCt of WA; Library No 970679; 21 November 1997
Matheson v Commissioner for Main Roads (2001) 25 WAR 269
Pascoe v The Nominal Defendant (Qld) No 2 [1964] Qd R 373
Perry v City of Armadale [2004] WASCA 167
Quinlivan v Portland Harbour Trust [1963] VR 25
Town of Kwinana v Vidovich [2004] WASCA 274
Victorian Railways Commissioners v Casaccio [1961] VR 157
WD & HO Wills (Australia) v Commissioner of State Taxation and Anor (1998) 39 ATR 455
(Page 3)
1 BOWDEN DCJ: The plaintiff's originating summons was heard by me on 12 October 2007. I delivered my extemporaneous reasons in the afternoon due to circuit commitments in Albany commencing on 15 October 2007 and the need to deliver a prompt judgment.
2 I advised both parties that I would ensure that my reasons were published reserving the right to edit from the tape. These are my reasons.
3 On or about 19 October 2001 the plaintiff, whilst employed by the defendant, injured her lower back allegedly working at Royal Perth Hospital when she was restraining a patient who was allegedly delirious from hurting himself by it appears, falling out of bed and hitting his head against the walls and walking into walls.
4 The injuries suffered are described as a strain to the lower back.
5 The plaintiff has previously suffered back injury whilst lifting patients in 1986 and suffered further injury in 1996 whilst dressing a patient on her bed.
6 The plaintiff wishes now to consider pursing a claim against the defendant.
The originating summons
7 On 14 September 2007 the plaintiff issued the present originating summons seeking leave pursuant to s 47A(3) of the Limitations Act 1935 to bring the action against the defendant. The application was accompanied by an affidavit. It was originally listed for hearing on 28 September 2007 and on that date it was adjourned to 5 October 2007. On 5 October 2007 the matter came before Judge French and orders were made that:
1. the matter be adjourned to 12 October 2007;
2. the plaintiff filed and served an amended affidavit by 9 October 2007; and
3. the defendant file and serve an affidavit in response by 11 October 2007.
8 No further affidavit has been filed by the plaintiff. The defendant filed an affidavit of Ms Morfea.
9 It also appears that although the originating summons was served on 21 September 2007, the service of the affidavit was defective as p 2 of the
(Page 4)
- affidavit was not served. On 4 October 2007 the defendant's solicitors were served with the full affidavit. The plaintiff's solicitors applied verbally on 12 October 2007 for an abridgement of the 14 day time limit referred to in s 47A(3)(c). This was opposed by the defendants. In Town of Kwinana v Vidovich [2004] WASCA 274 it was established that a District Court Judge does have jurisdiction to abridge the 14 day period prescribed by s 47A(3)(c) of the Act.
10 I do think that in the circumstances it is just to abridge the 14 day period. The affidavit was served on 21 September 2007 (p 2 was missing). The full affidavit was served on 4 October 2007. That is, 8 days notice instead of 14 days.
11 Notice having been given and no application been made by the defendant to adjourn for further investigations to be carried out, I do believe that is just to allow the plaintiff's application to abridge.
12 Section 47A of the Limitation Act 1935 provides that no action shall be brought against any person for any act done in pursuance or execution of intended execution of any Act, or of any public duty or authority, or in respect of any neglect of default in the execution of the Act, duty or authority, unless:
"1(a) the prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and his name and address and that of his solicitor or agent, if any; and
(b) the action is commenced before the expiration of one year from the date on which the cause of action accrued."
"(3)(a) Notwithstanding the foregoing provisions of this section application may be made to the Court which would but for the provisions of this section have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) has been given to the prospective defendant.
(Page 5)
- (b) Where the Court considers that the failure to give the required notice or the delay in bringing the action as they case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose.
(c) Before an application is made under the provisions of paragraph (a), the party intending to make the application shall give notice in writing of the proposed application and the grounds on which it is to be made to the prospective defendant, at least 14 days before the application is made."
13 In Town of Kwinana v Vidovich(supra) at p 4 it was stated that:
"The Scheme of s 47A is, therefore, to permit a plaintiff to bring proceedings against a public authority, without leave, before the expiration of one year from the date on which the cause of action accrued, provided a notice containing the relevant information is given to the proposed defendant pursuant to s 47A(1)(a).
A prospective plaintiff who does not commence proceedings within the one year period must apply to the court which would have jurisdiction to hear the action, for leave to commence proceedings at any time before the expiration of the six year limitation period, whether or not the notice required by subsection (1) has been given: s 47A(3)(a).
On such an application, the court may grant leave to bring the action if the justice of the case requires it, subject to such conditions as the court thinks it just to impose: s 47A(3)(b).
A prospective plaintiff who proposes to make application to the court is required to give notice in writing of the proposed application and the grounds, at least 14 days before the application is made."
14 In that case a District Court Judge expressed the view that the 14 day requirement of par (c) was not substantive but procedural.
(Page 6)
15 The Court of Appeal in Town of Kwinana v Vidovich (supra) agreed with this and held that the District Court did have jurisdiction to abridge the 14 day period.
Preliminary point
16 The defendant raises a preliminary point.
17 The defendant says that s 47(3)(c) has a two-fold requirement, being:
1. to give notice in writing of the application, and
2. the written notice should state the grounds in which the application is made.
18 The defendant relies on Master Sanderson's decision in WD & HO Wills (Australia) v Commissioner of State Taxation and Anor (1998) 39 ATR 455, particularly at 446 and 447:
"In my view the requirements of subsection (3)(c) are twofold. First a party intending to make an application 'shall give notice in writing, of the proposed application'. In this case there is no dispute that that was done by the plaintiff. The second requirement is that the notice in writing should state 'the grounds on which it (the application) is to be made'. It seems to me then that the notice must refer back to the matters listed in subsection (3)(b). The notice must state whether it is claimed by the plaintiff that the failure to give notice was occasioned by mistake or other reasonable cause, or whether it is said the prospective defendant is not materially prejudiced in his defence or otherwise. If the notice does not deal with these issues then it is not a proper notice and the application cannot be brought."
19 In Perry v City of Armadale [2004] WASCA 167, it seems to have been accepted that the required notice may be constituted by more than one document.
20 In this case the plaintiff relied on two documents, being:
(a) their letter of 9 August 2007 from the plaintiff's solicitors to Royal Perth Hospital. The letter dated 9 August 2007 sets out the plaintiff's name, address, nature of the claim, the date and the circumstances of the incident/injury by referring to the claim form which it says was attached.
(Page 7)
- (b) the second document the plaintiff relies on is the affidavit of the plaintiff dated 13 September 2007 and the originating summons.
21 The plaintiff relies on both of these documents as complying with s 47A(3)(c) and thus the reason why the plaintiff needed the abridgement of time in relation to the service of the affidavit.
22 The defendant says that the plaintiff did not give the notice required by s 47A(3)(c) and consequently the present application is not maintainable.
23 In Perry's case Justice Le Miere was faced with a similar issue saying at par 38:
"The grounds upon which an application for leave to bring an action is made must refer to the foundation or basis upon which the application is made, that is, the reasons for which the plaintiff submits the leave should be granted. What qualifies as a sufficient statement or notice of the grounds on which an application is made is a question of fact, and depends on the circumstances of each application. In some cases it may be necessary for the plaintiff to identify whether the delay in bringing the action was occasioned by mistake or by any other reasonable cause, or that the prospective defendant is not materially prejudiced by the failure or delay. However, in my view, it is not an invariable requirement that the plaintiff should characterise the basis upon which she seeks leave, that basis being either that the delay was occasioned by mistake, or that it was occasioned by any other reasonable cause, or that the defendant is not materially prejudiced."
24 Further, Justice Le Meire said at par 41:
"The apparent purpose of the requirement in s 47A(3)(c) is that a person intending to apply for leave to bring an action under s 47A(3) should give notice in writing of the grounds on which the proposed application is to be made, is so as to enable the prospective defendant to decide whether or not to consent to the bringing of the action against him pursuant to s 47A(2). A further purpose of the requirements of s 47A (3)(c) may be to enable the defendant to carry out any inquiries or investigations to enable it to resist an application under s 47A(3) if it should see fit."
(Page 8)
25 In this case, the plaintiff's affidavit of 13 September 2007 refers to the incident giving rise to the claim for negligence and refers via one of the annexures (EMS1-p 4) to the details of the occurrence, its date, location, time, the physical activity the plaintiff was involved in at the time of the occurrence and the bodily injuries suffered.
26 The affidavit (par 3) discloses the grounds of the application being that after the incident it was reported to the defendant on or about that time and the plaintiff continued to work having some time off for medical treatment which apparently was paid for by workers' compensation and almost six years since her injury she still struggles and wishes to pursue a negligence claim.
27 The facts and circumstances relied upon the plaintiff are contained in the letter of 9 August 2007 and the originating motion and affidavit.
28 As in Perry's case, I do not consider that it is fatal to the notice in this case that the plaintiff did not go on and characterise those facts and circumstances as amounting to reasonable cause for the delay in bringing the action.
29 The purpose of the notice is to enable the prospective defendant to decide whether or not to consent to the application and/or carry out investigations to enable it to resist an application if it wishes to.
30 The affidavit of 13 September 2007 is sparse in the extreme. It comes perilously close to being insufficient however the grounds can in my opinion be ascertained from par 3. That is that since the injury the plaintiff's main focus has been in continuing at work and getting time off for medical treatment paid by worker's compensation insurer and almost six years since her injury, she still struggles and wishes to pursue a negligence claim. The word struggles must, I find in this context of par 3, refer to her struggling from the injury.
31 The plaintiff's affidavit of 13 September 2007 sufficiently stated the grounds of the plaintiff's proposed application to enable the defendant to decide whether or not to consent to the proposed application and to carry out any inquiries or investigations to enable it to oppose the plaintiff's application, if it saw fit.
32 For the reasons stated, I find that the plaintiff gave notice in writing of her proposed application for leave to bring an action and of the grounds on which it was to be made as required by s 47A(3)(c).
(Page 9)
Requirements for leave
33 The requirements that the plaintiff needs to satisfy in order to obtain leave under s 47A(3) can be summaries as follows:
1. The delay in bringing the action was occasion by mistake. Mistake, of itself, qualifies as a reasonable cause. Matheson v Commissioner for Main Roads (2001) 25 WAR 269 per Justice Murray at par 47.
2. Alternatively, the delay in bringing the action was occasioned by any other reasonable cause.
3. Alternatively, the prospective defendant is not materially prejudiced in its defence or otherwise by the delay.
34 If one of the above conditions is satisfied, then the Court has a discretion to grant leave, if it is just in the circumstances to do so: Matheson v Commissioner of Main Roads (supra), per Murray J at 274.
Other reasonable cause
35 The plaintiff's case is that the delay in bringing the action was occasioned by reasonable cause. The meaning of "other reasonable cause" was set out by Sholl J in Quinlivan v Portland Harbour Trust [1963] VR 25 at 28, being:
" … a cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man."
36 In my view, the matters set out in the plaintiff's affidavit at par 3 constitute reasonable cause for the delay in bringing the action.
37 The cause of action did not accrue until 19 October 2001.
38 The plaintiff then took the reasonable step of notifying the defendant of the incident, advising them of the time, date, place, circumstance and witness to the incident almost immediately.
39 In par 3 of her affidavit, the plaintiff states that since the injury, her main focus has been on continuing at work and getting time off and medical treatment paid by the worker's compensation insurer and almost six years since her injury she still struggles and wishes to pursue a negligence claim.
(Page 10)
40 The word "struggle" as I have previously stated, must in the context of par 3 refer to her struggling from the injury. Her actions in having suffered a work injury reporting it to her employer forthwith, providing details of the date, time, place, circumstances and witnesses then visiting medical practitioners of her choice and it appears the worker's compensation insurer's choice, continuing to work and then when she is struggling with those injuries some six years later, wishing to proceed with a common law claim is conduct which is the kind of thing which might be expected to delay the giving of notice by a reasonable man. Bearing in mind that the defendant had been notified almost immediately following the incident (annexure A to affidavit of Ms Morfea).
41 The plaintiff in her incident report at p 12 of the affidavit of Ms Morfea, filed by the defendant, which the defendant's counsel states appears to have been written by her, provides in answer to the question "what do you think could be done to prevent this action/incident?" the answer "appropriate male staff who are stronger and capable of dealing with a man of patient stature, ie proper staffing for OSH reasons".
42 Further at p 45 of the affidavit of Ms Morfea, the plaintiff in a medical report prepared by Dr Rosenthal and provided to the defendant's insurers stated to the doctor that "she is rather cross alleging the hospital has been negligent and rather mean in allocating staff assistance".
43 These statements made in the context of reports to the defendant's insurers surely must have put the defendant on alert or on notice of potential common law claims. One must consider that the plaintiff was making those statements to the defendant's insurers or doctors in the course of reporting the accident and/or receiving treatment. The plaintiff in my opinion has established reasonable cause and did give notice in writing, giving in my opinion reasonable information of the circumstances upon which the proposed action will be based. This was done forthwith following the accident. She then did not give notice that she was going to commence a common law claim for negligence because of the reasons referred to in par 3 of the affidavit, that is she was in the main focusing on continuing at work, getting time off and medical treatment paid by the worker's compensation and insurer and almost six years since her injury was still struggling and now wishes to pursue her negligence claim.
44 The plaintiff has established reasonable cause.
(Page 11)
No material prejudice
45 I will next consider the alternative ground, that is, that there is no material prejudice to the prospective defendant in its defence or otherwise by reason of the delay, though it is not strictly necessary for me to do so.
46 The relevant time for considering the issue of prejudice is the period between the date of the cause of action arising and the date of the application for leave to bring the action: Cairns v Minister for Education, unreported; SCt of WA; Library No 970679; 21 November 1997. The defendant bears an evidentiary onus which it must discharge as to material prejudice, but if it does so, the ultimate onus to show the absence of material prejudice rests upon the plaintiff: Baker v Albany Shire Council (1994) 14 WAR 46.
47 The defendant claims prejudice arising out of the fact that the plaintiff for example has not nominated the name of the patient and the defendant may not have staff rosters, other documents and the like.
48 The plaintiff did report the accident forthwith and did provide answers to all details on the forms provided by the defendant's insurers and did provide when requested, further information and provided specific answers to specific questions. As is established by Exhibit A (p 12 of the affidavit of Ms Morfea), a staff accident/incident report,) a combination of Exhibit D and Exhibit E (p 15-p 17 of the affidavit which is in fact signed by the plaintiff) and Exhibit K (p 24-p 26 of the affidavit). The defendant was also provided with a witness statement form, Exhibit F (p 18) for the person whom the plaintiff nominated as a witness. I am satisfied on this basis that there is no material prejudice arising to the defendant on these matters.
49 As to the unavailability of the witness, the witness nominated by the plaintiff was Ms Adesanya. The defendant has located the husband of that witness and has been told on contacting the husband that his wife no longer works with Royal Perth Hospital and that she was overseas. When asked when she was likely to return, the husband responded that she was dealing with "family issues" and it was not clear when exactly she was to return to Australia (Exhibit CC, p 61 of the affidavit of Ms Morfea).
50 The witness has provided a witness statement in the form provided by the defendant's then insurance company. However, the fact does remain that the witness is overseas. Even if the witness is overseas, if located, the witnesses' evidence can be taken by way of a video link-up.
(Page 12)
51 This case in my opinion is not like Blythe v The State of Western Australia & Anor [2007] WADC 175 where documents were missing and five years had passed before notice of the claim had been given. In this case, notice detailing the time of the incident, the place of the incident, the circumstance of the incident, witnesses to the incident was given literally within days of the incident occurring (annexure A to affidavit of Ms Morfea (p 12)).
52 Notwithstanding this, I do find the defendant has suffered prejudice. The fact remains that the witness has not been able to be spoken to by the defendant the date of this application being heard. Although there is a witness statement, the defendant in my opinion is prejudice by not being able to speak directly to the witness.
53 I find therefore that the defendant has suffered prejudice and the plaintiff has not satisfied me that this is not material prejudice.
Discretion
54 The defendant submits that even if the conditions for granting leave to bring an action are satisfied, the Court should decline to exercise its discretion to grant leave. The defendant says that leave should be refused because the plaintiff's claim is speculative or a "try-on" and it would not be in the interests of justice for leave to be granted to commence an action against the defendant.
55 The appellant in Victorian Railways Commissioners v Casaccio [1961] VR 157 also contended that leave should not have been granted because it was not just to do so. In that case the appellant argued that there was no prima facie proof of agency or negligence on the part of the person alleged to have been driving the crane which injured the respondent and hence that the respondent's intended cause of action was not sufficiently made out. The Full Court rejected that submission and said, at 160:
"We think that there probably was such evidence, but even if there was not, it is not essential for an applicant under s 34 to show a prima facie case of liability. In other words, the fact that he does not do so does not mean that it must be held to be unjust to give the leave sought. It may be a material consideration that such proof appears, and is sufficient ground for holding that it is just to grant leave, and that was all that
(Page 13)
- Sholl J said in Akermanis's case … On the other hand, it may be quite enough, it appears, that the claim is not mala fide, nor merely speculative or absurd. All that the applicant seeks is leave to institute proceedings, with all the risks that attend the suit of any plaintiff. It is no doubt true that the reference in the subsection to the 'justice' of an order gives the Court a power which it has not got in the case of an ordinary writ, to refuse leave if the action is, eg, a 'try-on' (to use a popular phrase). But the view that every applicant must prove a prima facie case of liability is misconceived and would impose an altogether unreasonable burden on applicants. It might in some cases involve a very lengthy and difficult task."
56 A similar approach was taken by the Full court of the Supreme Court of Queensland in Pascoe v The Nominal Defendant(Qld) No 2 [1964] Qd R 373. Speaking of a not dissimilar statutory provision, Staple J said, at p 381-p 382, that there was nothing in the section to indicate that the legislature intended that on a mere application to extend time to make a claim, there should be a trial of an issue in an action which at that time has not even been commenced.
57 I have also considered the decision of Brisbane South Regional Hospital Authority v Taylor (1996) 186 CLR 541 that case is relevant to both the question of whether the plaintiff has discharged the onus of establishing that the defendant would not be materially prejudice in its defence and the exercise of my discretion.
58 In his judgment McHugh J said at p 551 that the discretion to extend time in such circumstances must be exercised in the context of the rationales for the existence of limitation periods. The enactment of time limitations, he said, have been driven by the general perception that where there is delay the whole quality of justice deteriorates and sometimes that deterioration in quality is palpable where a crucial witness is dead or an important document has been destroyed. His Honour was of the view that an applicant for extension must show that justice will be best served by accepting the particular proceedings from the general prohibition imposed. In that context, he said, justice includes all the relevant circumstances relating to the application including the various rationales for the enactment of the limitation period involved.
(Page 14)
59 Dawson J, expressing agreement with McHugh J, took the view that the relevant section of the Queensland Act did not confer upon an applicant for an extension of time a presumptive right to an order once the two conditions laid down by that section were satisfied. He said at p 544:
"The section confers a discretion upon a court to extend time and that discretion should only be exercised in favour of an applicant where, in all circumstances, justice is best served by so doing. The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation."
60 The four rationales referred to by McHugh J for the enactment of limitation periods are firstly, that as time goes by, relevant evidence is likely to be lost, secondly, that it is oppressive to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed, thirdly, that people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them and finally, that the public interest requires that disputes be settled as quickly as possible.
61 The general limitation for the commencement of an action for damages for personal injury was six years. Section 47A of the Limitation Act has been repealed although it still is applicable to the applicant's situation having regard to the time when the cause of action accrued.
62 The plaintiff must show that justice will be best served by exempting the particular proceedings from the general prohibition imposed.
63 The onus on satisfying the Court that the discretion should be exercised in favour of the plaintiff lies on the plaintiff and the plaintiff must establish that commencing the action would not result in significant prejudice to the proposed defendant.
(Page 15)
64 Matters relevant to be considered are:
1. as time goes by evidence is likely to be lost;
2. it is oppressive to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed;
3. people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them; and
4. the public interest requires that disputes are settled as quickly as possible.
65 Applying those factors to this case it must be borne in mind that the plaintiff's cause of action arose out of a work related accident. The plaintiff notified the defendant promptly providing details as to the date of the incident, time of the incident, place of the incident, circumstances leading to the incident, injuries suffered and available witnesses. In those circumstances the defendant cannot be said to be not aware of the incidents and the factors referred to by Justice McHugh must be considered in light of that fact.
66 The plaintiff notified the defendant virtually immediately and has had an ongoing workers' compensation claim since that date.
67 Justice Le Miere in Perry v City of Armadale (supra) at par 50 held that:
" … it is not essential that an applicant should show a prima facie case of liability. It is enough if it appears that the claim is not mala fide, not merely speculative or absurd. Commenting about the section merely permits leave to be given to bring an action."
68 In my opinion the plaintiff's claim cannot be characterised as mala fide, nor merely speculative or absurd.
69 The section merely permits leave to be given to bring an action. In my opinion the plaintiff's claim cannot be characterised as mala fide, nor speculative nor absurd, or in the words of one of the cases, a "try-on". The plaintiff may or may not be successful. He may or may not have difficulties in his action.
(Page 16)
70 I am satisfied that the delay in bringing the action was occasioned by reasonable cause. The plaintiff has not satisfied me that he delay has not caused material prejudice to the defendant however, in my view, considering all the circumstances of the case the court should exercise its discretion to grant leave to the plaintiff to bring the proposed action against the defendant.
71 The court hereby grants leave for the plaintiff to bring the proposed action against the defendant.
72 As far as the question of costs are concerned, in my opinion the justice of this case, bearing in mind the comments that I have made in connection with the affidavit filed by the plaintiff, is best served by there being no order as to costs.
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