| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : PANGOULIAS (by his next friend FIONA AVERIL PANGOULIAS) -v- MINISTER FOR HEALTH [No 3] [2013] WADC 60 CORAM : SLEIGHT DCJ HEARD : 27 FEBRUARY 2013 DELIVERED : 1 MAY 2013 FILE NO/S : CIV 2791 of 2010 BETWEEN : PETER PANGOULIAS (by his next friend FIONA AVERIL PANGOULIAS) Plaintiff
AND
MINISTER FOR HEALTH
First Defendant
JANE ELIZABETH POPOVIC as Executrix of the Will of EMIL POPOVIC
Third Defendant
Catchwords: Practice and procedure - Review of ex parte order to extend the validity of a writ for service - Application for extension made subsequent to expiration of 12month period of validity for service and three-year limitation period - New material - Claim of plaintiff in part dependent upon alleged telephone calls with deceased medical practitioner - Lack of patient notes
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Legislation: Limitations Act 2005 s 14A, s 35, s 39
Rules of the Supreme Court 1971 O 3r, O 7 r 1, O 58 r 23 Result: Application dismissed
Representation: Counsel:
Plaintiff : Mr T J Hammond
First Defendant : No appearance
Third Defendant : Mr P Quinlan SC
Solicitors:
Plaintiff : Shine Lawyers
First Defendant : Not applicable
Third Defendant : Pynt & Partners
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79
Brown v Coccaro (1993) 10 WAR 391
Hughes v Gales (Unreported, WASCA, Library No 970707, 16 December 1997)
Kleinwort Benson Ltd v Barbrak [1987] AC 597
Pangoulias (by his next friend Fiona Averil Pangoulis) v Minister for Health [No 2] [2012] WADC 120
Pangoulias v Minister for Health [2011] WADC 231
Rowe v Stoltze [2013] WASCA 92
Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337
Victa Ltd v Johnson (1975) 10 SASR 496
WEA Records Ltd v Visions Channel 4 Ltd [1983] 1 WLR 721
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1 SLEIGHT DCJ: This decision concerns an application by the third defendant under O 58 r 23 of the Rules of the Supreme Court 1971 (RSC) to set aside an ex parte order made by his Honour Judge Wisbey on 3 August 2012. The order provided that the validity of the writ of summons for service be extended in these proceedings until 31 August 2012.
2 Two issues arise from the application: Background 1. In January 2006 Mr Popovic performed surgery on the plaintiff for a brain tumour. The tumour re-grew and on 14 September 2007 further surgery was performed by Mr Popovic at the Mount Hospital. The plaintiff's claim is that during this second surgery a laceration was made to the carotid artery and a small defect was made in the anterior cranial fossa. The laceration to the carotid artery was controlled by a muscle plug, a Duragen patch and glue, together with a large fat graft. As a part of the post-operative treatment the plaintiff was admitted to Royal Perth Hospital (RPH) which is a public hospital. Subsequent to the operative treatment the plaintiff suffered meningitis causing severe brain damage. The plaintiff claims that the brain damage he suffered was due to a failure of RPH and Mr Popovic to provide proper post-operative medical services. 2. The plaintiff, in the name of his next friend (and wife) Fiona Averil Pangoulias, commenced proceedings in this matter by a writ of summons filed on 10 September 2010. The next friend was appointed as plenary administrator under the Guardianship and Administration Act 1990 on 23 April 2008. Initially, the defendants named in the writ of summons were the Minister for Health, Healthscope Ltd, Emil Popovic and Stuart Miller. The plaintiff has subsequently discontinued any claim against Healthscope Ltd and Stuart Miller. 3. The writ of summons contained a general endorsement of claim. In the indorsement of claim the plaintiff claims to have suffered severe brain damage as a result of a breach of duty of care owed to (Page 4)
him when, from about 14 September 2007, post-operative medical services were provided by employees, agents or servants of the Minister for Health at RPH and by Mr Emil Popovic (neurosurgeon). 4. Pursuant to s 14 of the Limitation Act 2005, the limitation period for a claim for personal injuries is three years. The plaintiff's claim alleges a number of breaches of duty of care by Mr Popovic, the first of which is said to have occurred on 14 September 2007. Accordingly, the limitation period in relation to this first breach of duty care would expire on 14 September 2010 (without taking into consideration s 55 of the Limitation Act which can extend the date of the accrual of the cause of action where a person does not immediately become aware he or she has sustained a significant personal injury). If the plaintiff is treated as a person under a mental disability then the time limitation period does not commence to run until the appointment of the plenary administrator on 23 April 2008, in which case the limitation period expired on 23 April 2011. 5. The plaintiff in filing the writ of summons on 10 September 2010 ensured that any claim was not statute barred as at the time of the filing of the writ of summons. 6. Mr Popovic died on 22 March 2011. A grant of probate was obtained in relation to his estate on 20 July 2011. 7. The last date for a valid service of the writ of summons pursuant to O 2 of the RSC was 12 months from the date of filing of the writ of summons which meant that the writ of summons needed to be served by 10 September 2011. The writ of summons was served on the first defendant, the Minister of Health, on 9 September 2011 (the last day before the expiration of the validity of the writ for service). However, the writ of summons was not served on Mr Popovic or the executor of his estate within the 12-month validity for service period. The circumstances of this will be detailed later in the decision. 8. On 10 September 2011 the action was placed on the inactive cases list pursuant to the District Court Rules 2005 as no document had been filed in the preceding 12 months. 9. An ex parte application for an extension of time of the validity of the writ for service on the third defendant was made on (Page 5)
29 September 2011 (i.e., after the statute of limitation period had expired and after the validity of the writ for service period had expired), together with applications to substitute the executor of the estate of Mr Popovic as the third defendant and to remove the action from the inactive cases list. Registrar Harman on 18 January 2012 granted an order that the action be taken off the inactive cases list but refused to extend the validity the writ for service: Pangoulias v Minister for Health [2011] WADC 231. An appeal was lodged. The appeal was heard ex parte. On 3 August 2012 his Honour Judge Wisbey allowed the appeal: Pangoulias (by his next friend Fiona Averil Pangoulis) v Minister for Health [No 2] [2012] WADC 120. Orders were made as follows: (i) Jane Elizabeth Popovic be substituted as third defendant in this matter in her capacity as the Executor of the estate of Emil Popovic. (ii) The validity of the writ of summons for service be extended until 31 August 2012. 10. A copy of the writ was served on the third defendant pursuant to the order of Judge Wisbey and the third defendant entered a conditional appearance dated 3 September 2012.
Circumstances of delay in the service of the writ 3 The circumstances of the delay of the service of the writ of summons on the third defendant are set out in affidavits of Wendy Jane Nixon, a partner of the firm of solicitors representing the plaintiff and who had the conduct of the matter from 27 April 2011. The circumstances can be summarised as follows: (Page 6)
(c) A preliminary discussion was held between counsel and the plaintiff's solicitors. (d) Up to 10 September 2010 no other steps were taken by the plaintiff's solicitors to advance the progression of any claim by the plaintiff. (e) A writ of summons was filed on 10 September 2010 to ensure proceedings were commenced within the limitation period. (f) On 5 January 2011 a brief was sent to an expert neurosurgeon for an opinion on whether there had been a breach of duty and causation. The expert's advice was that he was unable to provide his opinion until August 2011. (g) On 4 May 2011 Ms Nixon was advised by the plaintiff's next friend that the third defendant had died. (h) In her affidavit of 10 October 2011, Ms Nixon concedes at [22] that, prior to the death of Mr Popovic, no communication had been made by the plaintiff's solicitors to Mr Popovic of a potential claim and, accordingly, it was almost certain that he was unaware of the writ of summons which had issued naming him as a third defendant. (i) On 16 June 2011 the expert engaged informed the plaintiff's solicitors that he was unable to provide an expert opinion. (j) On 16 June 2011 plaintiff's solicitors sent a brief for opinion to Mr Leigh Atkinson (neurosurgeon) and Dr John Raftos (emergency physician). (k) A report was received from Dr Raftos on 9 August 2011 which the plaintiff's solicitors considered provided sufficient grounds for the plaintiff to proceed against the first defendant, the Minister for Health. (l) On 16 August 2011, Ms Nixon met with the plaintiff and his next friend. At that time Ms Nixon had conducted preliminary discussions with Mr Atkinson concerning a potential claim against Mr Popovic but had not received a written report from Mr Atkinson. Ms Nixon advised the plaintiff and his next friend that Mr Atkinson had expressed a preliminary opinion that there was 'a case to answer' by Mr Popovic and that Mr Popovic ought (Page 7)
to have undertaken further investigations to diagnose and treat the plaintiff's condition. At the time Ms Nixon had only received verbal advice from Mr Atkinson and Mr Atkinson had not at that time received the plaintiff's medical records. Ms Nixon advised the plaintiff and his next friend that she preferred to wait until she had received a written report from Mr Atkinson before effecting service of the writ on the third defendant. Her explanation for this advice was that in her professional opinion it can be premature to serve a claim (and therefore expose the plaintiff to a risk of an adverse cost order) on the verbal opinion of an expert. (m) The first attempt made by the plaintiff's solicitors to give any notification of a potential claim was on 7 September 2011 when Ms Nixon contacted RiskCover and enquired if RiskCover insured Mr Popovic. On 8 September 2011, after various enquiries, Ms Nixon ascertained from Mr Popovic's website that he had been insured at the relevant time by Avant Law. Ms Nixon contacted Avant Law by telephone on 8 September 2011 but Avant Law refused to confirm that it was the insurer but suggested to Ms Nixon that she forward a copy of the writ of summons to Avant Law. A copy of the writ was sent by facsimile to Avant Law on 8 September 2011 and a hard copy of the writ in the mail. The facsimile sought agreement from Avant Law to accept service. (n) On 20 September 2011 the plaintiff's solicitors received a facsimile from Pynt & Partners confirming it had received instructions to represent the estate of Mr Popovic and disputed that the purported service on Avant Law amounted to proper service. The facsimile also pointed out that the writ of summons had become 'stale'. (o) Following an unsuccessful attempt to reach an agreement with the third defendant's solicitors for consent orders and following counsel's advice, the plaintiff's solicitors filed on 29 September 2011 the chamber summons seeking orders substituting the estate of Mr Popovic as the third defendant and seeking an extension to the validity of the writ for service. (p) A written report from Mr Atkinson was obtained on 18 October 2011. From this report Ms Nixon formed a view that there was sufficient prospect of success for her to recommend to the plaintiff to proceed with a claim against the third defendant. (Page 8)
Legal principles
(a) Reviewing ex parte orders 4 Order 58 r 23 of the RSC gives the court power to set aside an order which is made ex parte. The legal principles that apply when an application is made to review an ex parte order were considered in the matter of Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561. From that decision the following principles emerge: 1. An ex parte order is essentially a provisional order in nature. The provisional order is reviewable in light of the evidence and arguments adduced by the other side. However, the review must give respect and weight to the conclusions of the judicial officer making the ex parte order (page 569; see also WEA Records Ltd v Visions Channel 4 Ltd [1983] 1 WLR 721, 727). 2. A subsequent hearing reviewing an ex parte order, either by the judge who made the original order or by another judge, is not an appeal against the first order. Nor is it an application to reconsider the correctness of the original decision on the material before the judge (page 569). 3. Before a jurisdiction to reconsider an ex parte order is enlivened, it is necessary for the party seeking such a relief to adduce additional evidence or to establish that there was material non-disclosure by the party who obtained the order. Accordingly, the application rests in every case upon production of further material not before the judge who heard the ex parte application and which throws a new and different light on the situation of the parties. In the absence of material non-disclosure, the applicant must adduce material sufficient to persuade the reviewing judge that had the initial judicial officer appreciated the full facts and circumstances, the decision would have been different (page 570). 4. The role of the reviewing judge is to administer justice. Each case depends on its own facts. The reviewing judge will be obliged to take into account the circumstances as they actually existed in light of the further information, on the likely effect of the existing order on the parties and on the administration of justice generally (page 570). 5. Additional caution should be exercised when the order has been carried into effect, particularly where the party who has obtained (Page 9)
the order has acted to its detriment in carrying out the terms of the order. However, although this is a factor to take into account it does not prevent a review taking place. In Bell Group NV (in liq) v Aspinall, the Full Court held that it was a material consideration that the application for an extension of the validity of the writ for service in that matter was made within the limitation period and within the 12-month period for service of the writ (in fact 15 days before the validity of the writ expired) and, if the order for extension was set aside, the defendant would have an absolute defence under the Limitation Act 1935 (WA). Had the order not been obtained the appellant (the party who had sought the extension) would have had sufficient time to take other steps to serve the writ within the 12-month period (pages 566 and 578).
(b) Principles applicable to granting or refusing an order for extension of validity of a writ for service 5 The application for an extension of the validity of the writ for service is made pursuant to O 7 r 1 which relevantly provides: (1) For the purpose of service, a writ (other than a concurrent writ) is valid in the first instance for 12 months beginning with the date of its issue and a concurrent writ is valid in the first instance for the period of validity of the original writ which is unexpired at the date of issue of the concurrent writ. (2) Where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding 12 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application is made to the Court before that day or such later day (if any) as the Court may allow. 6 The policy behind the provision was explained by Ipp J in Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79, as follows: … The policy in question is apparent from the time restrictions laid down by O 7 r 1 in regard to the validity of unserved writs, the finite periods for which the validity of unserved writs may be extended, and the finite periods during which applications may be made for such extensions. The reasons for the policy are obvious. It is undesirable to allow a plaintiff to issue a writ before the expiry of a limitation period and then to delay service for an indefinite period. Lengthy delays cause difficulties in the ascertainment of the truth. It is unfair to require potential defendants to contemplate potential litigation indefinitely. The unfairness stems from the uncertainty and concomitant financial and other burdens that would be (Page 10)
the consequence. As Young CJ (with whom Kaye and Southwell JJ agreed) said in Ramsay v Madgwicks [1989] VR 1 at 5, 'it is not right that people should be left in ignorance of proceedings that have been taken against them if they are here to be served.' Finally, the proper administration of the court would be hampered if writs could be issued and then left to lie dormant for indefinite periods. [45] 7 An application to extend the validity of the writ for service under O 7 r 1 can be made even after the 12-month period to effect service has expired by virtue of O 3 r 5 which gives power to the court to extend the period in which a person is authorised by the rules to do any act in the proceedings: Brown v Coccaro (1993) 10 WAR 391. This is notwithstanding that the extension will deprive the defendant of existing rights to the benefit of the statute of limitations. The matter of an application for extension of the validity of a writ for service is to be approached as a non-compliance with the rules of the court and not a disregard of the statute of limitations. 8 In Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 his Honour Stephen J considered the law in relation to an application to renew the validity of a writ for service under the High Court rules. His Honour quoted with approval the decision of Bray CJ in Victa Ltd v Johnson (1975) 10 SASR 496 who relevantly stated as follows: It follows then that it is incorrect to talk about allowing a cause of action or a new cause of action to be set up after the expiry of the period of limitation. Once the writ is issued within the period, the Statute of Limitations is ousted or rather never comes into operation. It is not the statute, which the court must obey on what it thinks is its proper interpretation, but the rule of court which takes over then. That rule has the discretion built into it and that discretion is to be exercised judicially, indeed, but not fettered by inflexible prescriptions ... It is not correct to say that the defendant has acquired an absolute right to immunity when a writ issued within the limitation period is not served within twelve months of its issue and the limitation period has in the meantime expired. What has expired is in reality not the limitation period but the period which would have been the limitation period if no writ had ever been issued. What the failure to serve a writ within twelve months gives the defendant is no more than a right to contend that the Court in the exercise of its discretion should not renew the writ. The efficacy of the writ does not expire absolutely at the end of the twelve months, it only expires if and in so far as the Court sees fit not to renew it. The rule first directs the Court to inquire whether reasonable efforts have been made to serve the defendant. If they have, it seems to me that the Court should renew the writ. If not, the Court has to consider whether (Page 11)
other good reasons exist for the renewal. I will not attempt an exhaustive category of such reasons. That would probably be impossible and would certainly be undesirable. Prominent, however, amongst the matters for the consideration of the Court, apart from whatever attempts have been made at service, will be the length of the delay, the reasons for the delay, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting it. 9 It is clear that the power conferred by O 7 r 1 is a wide and unfettered discretion which is to be applied to ensure that justice is done in all the circumstances. The discretion was described by Ipp J in Brealey v Board of Management Royal Perth Hospital in the following terms: In Van Leer Australia Pty Ltd v Palace Shipping KK it was held that the discretion to renew a writ after a limitation period has expired should be exercised by reference to the general justice of the case taking into account all the relevant circumstances. These would include not only the provisions of any limitation statute applicable but also the relative hardships which a grant or refusal of renewal would impose upon the parties. Relevant factors include the length of the delay, whether the delay was caused by mistake and whether such mistake is excusable, the nature of attempts made at service, and the hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting it. … [52] (See also Brown v Coccaro (Ipp J) (400); Bell Group NV (in liq) v Aspinall (575).) 10 In circumstances where the application for extension is made at a time when the writ has ceased to be valid for service and the relevant period for limitation has expired, an applicant, in addition to showing good reason for an extension, must give a satisfactory explanation for the failure to apply for an extension for the validity of the writ for service before the validity of the writ expired: Kleinwort Benson Ltd v Barbrak [1987] AC 597. A satisfactory explanation for a failure of a plaintiff to apply for an extension before the validity of the writ expired is of considerable significance to the granting of an application but the absence of such an explanation is not necessarily fatal to such an application: Brealey v Board of Management Royal Perth Hospital [54]; Van Leer Australia Pty Ltd v Palace Shipping KK. 11 A relevant consideration is whether the delay by the plaintiff to take steps to serve the writ created a difficulty for the defendant in obtaining the requisite evidence to defend him or herself. The prejudice created by delay may be general, in the sense of loss of memory, or specific such as a loss of access to witnesses or records: Brealey v Board of Management Royal Perth Hospital [63] - [67]. (Page 12)
Material before Judge Wisbey 12 To decide the significance of any new material it is first necessary to identify the nature of the particulars of the claim before Judge Wisbey. The relevant material before Judge Wisbey was contained in a number of affidavits, including two affidavits of Ms Nixon sworn on 10 October 2011 and 20 April 2012 mentioned earlier. The affidavit material suggested the following sequence of events concerning the treatment of the plaintiff by Mr Popovic: 1. At post-operative appointments on 26 September 2007 and 5 October 2007 the plaintiff reported nasal discharge to Mr Popovic. 2. During the evening of 5 October 2007 the plaintiff sneezed causing a large amount of fatty tissue to be discharged from his nose. Believing it to be a piece of the muscle plug, the plaintiff telephoned Mr Popovic and Mr Popovic instructed the plaintiff to place the tissue lump in a jar with water and bring it to the next appointment. 3. Later on the evening of 5 October 2007 the plaintiff experienced an extremely debilitating headache. Early the next morning the plaintiff's wife contacted Mr Popovic and was advised by Mr Popovic to take the plaintiff to the emergency department of Royal Perth Hospital. 13 Annexed to the affidavit of Ms Nixon sworn on 20 April 2012 was a copy of a written report of Mr Leigh Atkinson (neurosurgeon) dated 6 October 2011. This report included the following opinions of Mr Atkinson: 1. The penetration of the anterior fossa placed the plaintiff at risk of contracting meningitis. 2. It was appropriate for the plaintiff, as he was continuing to be ventilated immediately after the operation, for intravenous antibiotics to be administered. In the absence of any evidence of meningitis, the drugs ought to be administered orally for up to 10 days (pages 6 and 7 of the report). 3. The presence of the nasal discharge on 26 September 2007 required a study to exclude cerebrospinal fluid and a pathological (Page 13)
Decision of Judge Wisbey 14 On the basis of the material before him, Judge Wisbey concluded as follows: Factors relevant to exercise of discretion 18. In the supporting submissions it is stated that there was attempted service on 8 September 2011 one day before the expiration of the validity of the writ. To describe what then took place as an attempt is a conspicuous misstatement. The named third defendant was deceased and it was not possible to effect service on him or anyone else. In the then climate of desperation Ms Nixson either failed to comprehend or ignored that position. There was no basis for 'a mistaken belief that the third defendant's insurer had already responded to the claim to the effect that it had indicated it would accept service' which is put forward as a major reason for the delay in the service of the writ. The insurer was not approached until a day before the termination of service validity. 19. As already mentioned, in her affidavit of 20 April 2012 Ms Nixson deposes to the fact that a deliberate decision was made not to serve the third defendant until supporting evidence was received, the purpose being to ensure that the plaintiff was not exposed 'to a risk of adverse costs' in the event that there was no evidence to support a cause of action against the third defendant. That fails to explain why steps were not taken to substitute the deceased's executor as third defendant during the currency of the writ. 20. In the result I am satisfied that the writ was not served during the period of its validity due to a combination of a conscious decision to withhold service, a lack of proper attention to the file, and a failure to appreciate or alternatively address the ramifications of the death of Mr Popovic. 21. The application to extend validity of the writ was filed on 29 September 2011, 20 days after the expiration of service validity, (Page 14)
and during that period there was correspondence between the plaintiff's solicitors and the solicitors for the deceased's indemnity insurer. 22. Since the expiration of the validity of the writ Shine Lawyers have taken steps to engage a neuropsychologist, an occupational therapist, a disability architect, received Mr Atkinson's report, and sought further neurosurgical opinion. All those steps were of course necessary in getting up the case in respect of the first defendant. 23. The plaintiff is significantly cerebrally compromised, and an award of damages in the event of a finding of negligence will be substantial. 24. There was no legal imperative on the plaintiff to serve the writ on the deceased before his death and in those circumstances any prejudice to the estate is confined to the loss of capacity to preserve medical records over a short period of time. It is probable that most of those records will have been accessed by the first defendant, and will be available to the executor. 25. It is a factor to be taken into account in the exercise of the discretion that the limitation period has expired and that the application for extension was not made during the original period of validity. There is of course a capacity to apply to extend the limitation period pursuant to s 39 of the Limitation Act if the plaintiff is able to establish that he was not aware of the physical cause of the injury; alternatively was not aware that the injury was attributable to the conduct of a person; although having issued a writ naming the deceased there may be some difficulty establishing either of those factors. 26. In accordance with the provisions of O 18 r 7 of the Rules of the Supreme Court 1971 I direct that Jane Elizabeth Popovic the executor of the Will of Emil Popovic be substituted as the third defendant. 27. Having considered all these matters and in particular the plaintiff's mental incapacity I am of the view that the justice of the case requires that the validity of the writ for service be extended until 31 August 2012. (Page 15)
New material 15 The third defendant relies upon two areas of new material not before Judge Wisbey to justify a review and reversal of the decision of his Honour: (i) The statement of claim 16 The statement of claim pleads a more detailed sequence of events than previously revealed in the affidavits of Ms Nixon before his Honour Judge Wisbey. Before describing the sequence of events it is appropriate that I identify the basis of the alleged breaches of duty of care pleaded against Mr Popovic in the statement of claim. The plaintiff's pleaded case is that Mr Popovic was in breach of his duty of care in relation to four areas: 1. A breach of duty of care in relation to the immediate post-surgery treatment (par 52 of the statement of claim). This is based upon the allegation that the plaintiff ought to have received immediately after the operation on 14 September 2012 a course of antibiotics as suggested in the report of Mr Atkinson (the first alleged beach of duty of care). 2. A breach of duty of care in relation to outpatient treatment as result of complaints made on 24 and 26 September 2007 and 2 October 2007 (par 53). The statement of claim pleads that as result of these complaints Mr Popovic ought to have referred the plaintiff for a study to exclude a cerebral spinal fluid leak and arrange for a pathological study of the discharged material (this is consistent with the report of Mr Atkinson contained in the material before Judge Wisbey) (the second alleged beach of duty of care). 3. A breach of duty of care in relation to outpatient treatment as result of failing to appropriately heed complaints of the plaintiff on 5 and 6 October 1997 and arranging for an immediate admission of the plaintiff to the emergency department of RPH of the plaintiff on 5 October 2007 and arranging for the plaintiff to be (Page 16)
admitted immediately to the neurosurgical ward on the morning of 6 October 2007 (par 54 of the statement of claim) (the third alleged beach of duty of care). 4. A breach of duty of care relating to the plaintiff's admission to the emergency department of RPH from 6 October 2007 by failing to carry out appropriate treatment for the possibility of meningitis (par 55 of the statement of claim) (the fourth alleged beach of duty of care). 17 The sequence of events pleaded in the statement of claim, relevant to the application for review, is as follows: (a) On 14 September 2007 surgery took place (par 10 of the statement of claim). (b) On 20 September 2007 the plaintiff was discharged (par 14 of the statement of claim). The plaintiff was due to be re-admitted for further endovascular treatment for a pseudo-aneurysm on 8 October 2007 (par 15 of the statement of claim). (c) The plaintiff experienced after discharge from hospital a mucous discharge from his nose (par 16(a) of the statement of claim). (d) On 24 September 2007 the plaintiff telephoned Mr Popovic to discuss concerns. The plaintiff was advised that there was nothing to worry about and Mr Popovic would see the plaintiff at his follow-up appointment on 26 September 2007 (pars 16(b) and 16(c) of the statement of claim). (e) On 26 September 2007 the plaintiff and his wife attended Mr Popovic in his rooms and again advised Mr Popovic that the plaintiff was concerned about the discharge from his nose. Mr Popovic prescribed a five-day course of Bactrim (pars 16(d) and 16(e) of the statement of claim). (f) On 2 October 2007 the plaintiff telephoned Mr Popovic at his rooms to advise that the Bactrim had little effect. The plaintiff was again advised there was nothing to worry about (par 16(h) of the statement of claim). (g) At 0800 hours on 5 October 2007 the plaintiff was admitted to the day surgery unit at RPH. The plaintiff underwent a right carotid angiogram and was discharged at or around 1545 hours. (Page 17)
(h) On arrival at home on 5 October 2007 the plaintiff sneezed causing a large lump of fatty tissue to come out of his nose (par 18(a) of the statement of claim). (i) The plaintiff telephoned Mr Popovic at or around 1607 hours. Mr Popovic advised the plaintiff to place the tissue in a jar with water and bring it to his next appointment (pars 18(b) and 18(c) of the statement of claim). (j) Later that evening of 5 October 2007 the plaintiff suffered an extremely debilitating headache (par 18(d) of the statement of claim). (k) The plaintiff woke with an even worse headache and at about 0830 hours on 6 October 2007 the plaintiff took Panadeine Forte (par 18(g) of the statement of claim). (l) At or around 0907 hours on 6 October 2007, the plaintiff's wife (the next friend) telephoned Mr Popovic and described the symptoms being experienced by the plaintiff to Mr Popovic. Mr Popovic advised the plaintiff's wife to take the plaintiff to the emergency department of RPH (par 16(i) of the statement of claim). (m) Mr Popovic advised the plaintiff's wife that Mr Popovic would contact Dr Michael Kern, neurosurgical registrar, to advise him of the plaintiff's impending arrival (par 18(j) of the statement of claim). (n) At or around 0953 hours the plaintiff arrived at the emergency department at RPH (par 19 of the statement of claim). 18 The statement of claim goes on to particularise the plaintiff's medical treatment after the admission to hospital on 6 October 2007. 19 For the purpose of this application for review of Judge Wisbey's decision, the third defendant focuses on the second and third alleged breaches of duty of care pleaded against Mr Popovic. These relate to Mr Popovic's alleged failure to respond to information provided by the plaintiff and/or the plaintiff's wife in telephone conversations on 24 September 2007, 2 October 2007, 5 October 2007 and 6 October 2007 and in an attendance at Mr Popovic's rooms on 26 September 2007. The submission of the third defendant relies upon the fact that the alleged (Page 18)
telephone calls on 24 September 2007 and 2 October 2007 were not mentioned in the material before Judge Wisbey.
(ii) The affidavit of Mr Denman 20 Mr Denman is a partner of Pynt & Partners, the solicitors acting for the third defendant. Mr Denman deposes in his affidavit that his firm was not instructed until 13 September 2011 and, accordingly, they did not have the opportunity to take instructions from Mr Popovic prior to his death on 23 March 2011. 21 Annexed to the affidavit of Mr Denman is a copy of the patient clinical records of Mr Popovic relating to the plaintiff. These records contain handwritten notes for 26 September 2007 and 5 October 2007. There is an entry between 26 September 2007 and 5 October 2007 but the date is not decipherable by me. The entry appears to relate to the day surgery attendance by the plaintiff at RPH on 5 October 2007. There are no entries relating to the alleged telephone calls on 24 September 2007, 2 October 2007 and 6 October 2007. There is an entry of the attendance by Mr Popovic at his rooms on 26 September 2007 which includes a note of 'green snot' and the prescription of 'Bactrim'. There are also some notes relating to an attendance on 5 October 2007 but it is not clear if they relate to the attendance at the hospital on 5 October 2007, or a telephone conversation on the evening of 5 October 2007, or both, or neither. 22 In response to the affidavit of Mr Denman, the plaintiff filed an affidavit of the plaintiff's wife sworn on 11 February 2013. Mrs Pangoulias deposed that she believes that due to brain damage suffered by the plaintiff, he will be incapable of recalling the events or factual circumstances leading to his injury and that he will be unable to give any reliable evidence at trial. This is consistent with a report of Clinical Professor Jonathon K Foster (annexed to the affidavit of Ms Nixon dated 20 April 2012) which states that the plaintiff is likely to experience ongoing substantial neuro-cognitive impairment into the foreseeable future. 23 Annexed to Mrs Pangoulias' affidavit are telephone records of the plaintiff. These telephone records confirm telephone calls to Mr Popovic's numbers on 24 September 2007, 2 October 2007, 5 October 2007 and 6 October 2007 as alleged by the plaintiff in the statement of claim. Mrs Pangoulias is unable to give any direct evidence of the telephone calls on 24 September 2007 and 2 October 2007. She states that she was present when the plaintiff allegedly telephoned Mr Popovic at 1607 hours on 5 October 2007. She states that as result of what she was (Page 19)
told by the plaintiff, the fatty tissue discharged from the plaintiff's nose was placed in a jar. She was able to recall the telephone conversation she says that she had with Mr Popovic on 6 October 2007.
Submissions
(a) Submissions of third defendant 24 The submission of the third defendant is that the additional material contained in the statement of claim changes the complexion of the prejudice suffered by the third defendant as the plaintiff is relying on a greater number of alleged contacts between Mr Popovic and the plaintiff to support the contention that Mr Popovic failed to heed complaints of the plaintiff. Further, the third defendant relies upon the lack of notes of Mr Popovic in relation to the critical conversations. 25 Senior counsel for the third defendant submitted that Judge Wisbey made assumptions at [24] of his decision that there would be notes of Mr Popovic available and that they would provide assistance to the third defendant in responding to the allegations in relation to the alleged conversations between the plaintiff and Mr Popovic. In fact, in relation to conversations relied upon by the plaintiff on 24 September 2007, 2 October 2007, 5 October 2007 and 6 October 2007 there are no patient notes. It is contended this absence of patient records places the third defendant in a different position to that as contemplated by Judge Wisbey and that this is relevant to the prejudice suffered by the third defendant if the application for extension of the time for service is extended. 26 Senior counsel for the third defendant also relies upon the passage earlier quoted in this decision from Brealey v Board of Management Royal Perth Hospital [52] (Ipp J) which emphasises that a consideration when deciding whether to extend the validity of a writ for service is both the hardship or prejudice caused to the plaintiff if the application is refused or the hardship or prejudice to the defendant if the application is granted (see also Victa Ltd v Johnson). It is submitted on behalf of the third defendant that the court should not only consider hardship or prejudice caused during the period of delay, but any hardship or prejudice that is caused by the granting of the application for an extension. It is submitted that the difficulties of ascertaining witnesses and the ability of them to recall, as described in the decision of Ipp J in Brealey v Board of Management Royal Perth Hospital, is a factor to be taken into account without limiting that exercise to the question as to how either has changed in the period of time since the validity of the writ for service has expired. (Page 20)
27 The third defendant also contends that when considering the consequences of not granting an extension of the validity of the writ for service, it is relevant to take into account that this will not necessarily prevent the plaintiff from recovering damages because he has an independent claim against the first defendant.
(b) Submissions of the plaintiff 28 The plaintiff's submissions are that any hardship or prejudice to the defendant arises from the death of Mr Popovic and not from extending the validity of the writ for service. As the death of Mr Popovic occurred prior to the expiration of the validity of the writ for service, it is contended that the third defendant would be in exactly the same position as now if the writ had been served prior to the expiration of the 12-month period for service.
Conclusion 29 It is clear that there is new material presented on this application which was not before Judge Wisbey. The question is whether this material is sufficient to persuade me that in light of such new material the decision of Judge Wisbey ought to be set aside. 30 In my opinion, the additional telephone calls of 24 September 2007 and 2 October 2007 pleaded in the statement of claim add little to the plaintiff's claim in relation to the second alleged breach of duty of care given the consultation in Mr Popovic's rooms on 26 September 2007 which is confirmed in the notes of Mr Popovic. The notes appear to confirm the complaint and a response by Mr Popovic by prescribing Bactrim. Further, I do not accept the third defendant's submission that the decision of Judge Wisbey was made on the assumption that notes of Mr Popovic would be available and they would provide assistance to the third defendant. Judge Wisbey's comments in [24] of his decision were simply emphasising it was unlikely, in the short period from the expiration of the service period until when the third defendant was alerted to the claim, that any notes that existed would be lost. 31 What works against the plaintiff being granted an extension of the validity of the writ for service is that at the time the application was made the limitation period had expired and the application was made outside the 12-month period. Also no good reason was advised for the delay in serving the writ. The failure to serve the writ within the period of its validity for service was due to a combination of a conscious decision to withhold service, a lack of proper attention to the file, and a failure to (Page 21)
appreciate or alternatively address the ramifications of the death of Mr Popovic. All of these factors were taken into account by Judge Wisbey: Pangoulis (by his next friend Fiona Averil Pangoulis) v Minister for Health [No 2] [20], [21] and 24]. 32 However, notwithstanding these failures, some attempt, albeit inadequate, was made to serve the writ before the expiration of the service period by a copy of the writ being sent to Mr Popovic's insurer a day prior to the expiration of the period for service with a request that service be accepted. Once it was clear service would not be accepted and the issue of the validity of the writ for service was raised, the plaintiff made an application to the court promptly. The situation is distinguishable from the circumstances in Brealey v Board of Management Royal Perth Hospital where the Full Court upheld a dismissal of an application for an extension of the validity of a writ for service where the application was made after the expiration of the 12-month period for service and after the limitation period had expired. Firstly, in Brealey v Board of Management Royal Perth Hospital the relevant statute of limitation period was six years (not three years as applies under the Limitations Act 2005) and therefore the overall period of delay was considerably greater. Secondly, in Brealey v Board of Management Royal Perth Hospital the appellant (applicant) served a stale writ on the respondent (defendant) on 28 February 1998 being eight days after the 12-month period for service which had expired on 20 February 1998. An order was made in the District Court on 12 March 1998 extending the validity of the writ but this did not validate the service of the stale writ. No service was effected on the respondent within the extended period. 33 In my opinion, the submission of the third defendant correctly observed that in determining whether an extension is granted under O 7 r 1, a relevant factor to be taken into account is the hardship or prejudice to the third defendant if the application is granted. This is within the broad scope of exercising the discretion by reference to the general justice of the case: Brealey v Board of Management Royal Perth Hospital [52]. However, a number of considerations must be taken into account when considering the prejudice or hardship to the third defendant. Firstly, as emphasised by the authorities, a 'stale' writ is not a nullity and the only quality which a writ lacks that has not been served is that of not being in force for the purpose of the service. It follows that renewal out of time cannot properly be described as depriving a defendant of a defence the essence of which is failure to issue within the time: Van Leer Australia Pty Ltd v Palace Shipping KK (245); Brown v Coccaro (399). Secondly, when assessing the hardship or prejudice to the third defendant (Page 22)
and the general justice of the case, it is relevant to consider any changes in circumstances in the period since the validity of the writ for service has expired and whether such changes create any additional hardship or prejudice to the defendant. In this case there are no such changes. 34 When considering the justice of the case, it is important to give consideration to the policy behind O 7 r 1 to prevent a prejudice arising from delay as identified by Ipp J in Brealey v Board of Management Royal Perth Hospital [45]. Certainly, if the failure to serve the writ within the 12-month period had caused patient notes of Mr Popovic being lost then in my opinion it would have meant that the justice of the case would require that the plaintiff's application for extension of the validity of the writ for service be dismissed. However it is not contended that the delay which occurred at any time after the death of Mr Popovic, including the delay between the expiration of the 12-month period of service and the application being made and heard by the court, caused in itself any hardship or prejudice to the third defendant in terms of the availability of patient notes or witnesses. 35 The indirect prejudice arising from delay in terms of loss of memory as considered by Ipp J in Brealey v Board of Management Royal Perth Hospital does not apply in this matter as Mr Popovic had died prior to the expiration of the service period and therefore his oral evidence was not available even if the writ had been served within the 12-month period prescribed by the rules. In any event, it should be noted that Ipp J's comments concerning indirect prejudice by way of loss of memory was in the context where the limitation period was six years (as opposed to three years under current legislation) and therefore potential loss of memory is less likely to be a salient feature under current legislation. 36 There are, of course, other policy considerations behind O 7 r 1 as identified by Ipp J in Brealey v Board of Management Royal Perth Hospital which need to be taken into consideration being the undesirability of a plaintiff issuing a writ but not informing a defendant for some time as to the existence of the writ. To allow proceedings to be dormant is contrary to modern concepts of proper and effective administration of justice. Rowe v Stoltze [2013] WASCA 92 [71] (Newnes JA) (Pullin & Murphy JJA). This was taken into account by Judge Wisbey. He commented that the practice of solicitors who issued a writ because of a limitation issue but with no intention to serve it unless and until supportive evidence was available was not an uncommon practice but it is 'to be deprecated': Pangoulis (by his next friend Fiona Averil Pangoulis) v Minister for Health [No 2] [12]. Although plaintiffs (Page 23)
should be discouraged from taking out writs to preserve a right of action with no intention to affect service until further enquiries provide supportive evidence, there is authority that a plaintiff is entitled to delay service until the last moment and that case management principles do not render such a practice an abuse of process: Bell Group NV(in liq) v Aspinall (577); Hughes v Gales (Unreported, WASCA, Library No 970707, 16 December 1997), 9 (Templeman J). These authorities must be viewed in light of the modern emphasis on case management which seeks to address the problems and consequences of delay. It should be noted that O 7 r 4 empowers the court, if no action is taken on a filed writ for six months, to issue a summons to the plaintiff to show cause why the writ should not be struck out. However, the principles of case management remain subordinate to the guiding principle of achieving a just resolution: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [94]. 37 It is clear that the plaintiff will suffer significant prejudice if the plaintiff is not grant an extension to the validity of the writ service. Any claim is likely to be significant. In my opinion it is no answer that the plaintiff may have claims against the first defendant. It is common ground that none of the claims against the first defendant arise as pleaded on the basis of vicarious liability for the acts of Mr Popovic. The claims against the first defendant on the statement of claim are based upon alleged breaches of duty of care of employees, agents and/or servants of the first defendant. In my opinion, the fact that some independent claim might lead to recovery against the first defendant lacks sufficient certainty as to recovery to be a relevant consideration. 38 The disadvantage the third defendant faces by the lack of patient records pre-existed any expiration of the period for service. Accordingly, the delay that has occurred has not created this disadvantage. Further, in considering the justice of the case, I consider it relevant that the lack of patient records is relevant only to the second and third alleged breaches of duty of care pleaded by the plaintiff. The lack of patient records in relation to the plaintiff's complaints is unrelated to the other independent claims for breach of duty of care made by the plaintiff against the third defendant, which are not related to the alleged telephone contacts and an appointment on 26 September 2007, but would be defeated if the plaintiff was not given an extension of the validity of the writ for service. 39 In my opinion the consequences for the third defendant of allowing the extension to the period of service of the writ can be identified as a loss of having the claim defeated for non-compliance with the rules where the (Page 24)
third defendant due to other reasons (the death of Mr Popovic) already was placed in a difficult position to defend the claim. The full extent of those pre-existing disadvantages was not before Judge Wisbey, but I am not persuaded that even if Judge Wisbey had been aware of the full extent of those disadvantages, as revealed in the statement of claim and the affidavit of Mr Denman, it would have altered his decision. 40 Taking all of the above factors into account, I am satisfied that the justice of the case falls narrowly in favour of the existing orders made by Judge Wisbey being upheld and accordingly the application to set aside Judge Wisbey's orders is dismissed.
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