Pollard v Endale Pty Ltd - [2009] WASCA 189

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: POLLARD -v- ENDALE PTY LTD [2009] WASCA 189

CORAM: OWEN JA
MILLER JA
NEWNES JA

HEARD: 4 SEPTEMBER 2009

DELIVERED : 4 SEPTEMBER 2009

PUBLISHED : 3 NOVEMBER 2009

FILE NO/S: CACV 106 of 2009

BETWEEN: ROBERT JAMES POLLARD
Appellant
AND
ENDALE PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DAVIS DCJ
Citation  :POLLARD -v- ENDALE PTY LTD [2009] WADC 135
File No  :CIV 823 of 2005

Catchwords:

Practice and procedure - Appeal against dismissal of application to adjourn trial - Whether respondent's discovery inadequate - Prejudice to respondent if trial adjourned - Long delay in bringing action to trial - Effect on efficient utilisation of court resources - No error by primary judge - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant: Mr M A Tedeschi
Respondent: Mr P D Quinlan

Solicitors:

Appellant: S C Nigam & Co
Respondent: DLA Phillips Fox

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

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 258 ALR 14
Pollard v Endale Pty Ltd [2009] WADC 97
The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Wilson v Metaxas [1989] WAR 285

JUDGMENT OF THE COURT: On 4 September 2009, this court heard, on an urgent basis, an application by the appellant for leave to appeal against a decision of Davis DCJ, of 28 August 2009, refusing the appellant's application for the adjournment of a trial due to start in the District Court on 7 September 2009. After hearing argument, we dismissed the application and said we would publish our reasons later. These are our reasons.

The background

It is necessary, before turning to the particular issues which arise on the application, to set out some of the background to the application.
The proceedings in the District Court arise out of surgery conducted by Dr David Kennedy on the appellant's right ankle at the Mount Lawley Private Hospital (the hospital). The hospital is owned and managed by the respondent. On 25 May 1999, Dr Kennedy performed, by arthroscopic surgery, a synovectomy, debridement and chondroplasty of the appellant's right ankle. That failed to alleviate the appellant's symptoms and, on 23 November 1999, Dr Kennedy performed surgery of a similar nature on the appellant's ankle.
The appellant was dissatisfied with Dr Kennedy's performance of the surgery and made a complaint to the Medical Board. In 2001, the Board conducted an enquiry pursuant into s 13(1)(c) of the Medical Act 1894 (WA). The enquiry by the Medical Board concerned an allegation that Dr Kennedy was guilty of gross carelessness or incompetence in the performance of a procedure known as ball diathermy, by using a ball electrode in a technically inappropriate, or excessive and prolonged, manner. It was alleged that Dr Kennedy had thereby caused damage to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pollard v Endale Pty Ltd

Details

AGLC: Pollard v Endale Pty Ltd [2009] WASCA 189
Case: [2009] WASCA 189
Decision Date: 3 NOVEMBER 2009

CaseChat Overview and Summary

The case of Pollard v Endale Pty Ltd involved an appeal against a decision to dismiss an application for an adjournment of a trial. The appellant, Pollard, sought to delay the trial due to alleged inadequacies in the discovery of documents by the respondent, Endale Pty Ltd, the owner and manager of the hospital where the appellant underwent surgery. The primary judge, Davis DCJ, had refused the adjournment, leading to the appeal to the higher court. The appeal was heard on an urgent basis as the trial was due to commence shortly after the application was dismissed.

The legal issues at the heart of the appeal revolved around whether the respondent's discovery of documents was adequate and whether the appellant would suffer prejudice if the trial was adjourned. Additionally, the court had to consider the long delay in bringing the action to trial and its impact on the efficient use of court resources. The appellant argued that the discovery was incomplete and that an adjournment would not cause undue prejudice, but rather would allow for a fair trial. The respondent contended that the discovery was sufficient and that an adjournment would be unjust, given the significant delay already incurred.

The court found no error in the primary judge's decision, emphasizing that the determination of whether the discovery was adequate and whether an adjournment would cause undue prejudice depended on the specific facts of the case. The court noted that the appellant had been provided with substantial documentation, including the respondent's 'Practitioners' Policy Manual' and the 'patient pre-admission form'. Despite the appellant's claims, the court concluded that the appellant had not demonstrated a compelling need for further discovery that would justify an adjournment. Furthermore, the court highlighted the importance of timely trials and the efficient use of court resources, which weighed against granting the adjournment.

The appeal was dismissed, and the decision of the primary judge was upheld. No further orders were made by the court in relation to the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: On 4 September 2009, this court heard, on an urgent basis, an application by the appellant for leave to appeal against a decision of Davis DCJ, of 28 August 2009, refusing the appellant's application for the adjournment of a trial due to start in the District Court on 7 September 2009. After hearing argument, we dismissed the application and said we would publish our reasons later. These are our reasons. It is necessary, before turning to the particular issues which arise on the application, to set out some of the background to the application. The proceedings in the District Court arise out of surgery conducted by Dr David Kennedy on the appellant's right ankle at the Mount Lawley Private Hospital (the hospital). The hospital is owned and managed by the respondent. On 25 May 1999, Dr Kennedy performed, by arthroscopic surgery, a synovectomy, debridement and chondroplasty of the appellant's right ankle. That failed to alleviate the appellant's symptoms and, on 23 November 1999, Dr Kennedy performed surgery of a similar nature on the appellant's ankle. The appellant was dissatisfied with Dr Kennedy's performance of the surgery and made a complaint to the Medical Board. In 2001, the Board conducted an enquiry pursuant into s 13(1)(c) of the Medical Act 1894 (WA). The enquiry by the Medical Board concerned an allegation that Dr Kennedy was guilty of gross carelessness or incompetence in the performance of a procedure known as ball diathermy, by using a ball electrode in a technically inappropriate, or excessive and prolonged, manner. It was alleged that Dr Kennedy had thereby caused damage to the articular cartilage layer of (among others) the appellant. In October 2001, the appellant was informed by the Medical Board that Dr Kennedy had pleaded guilty. In May 2003, the appellant commenced proceedings in the District Court for damages for negligence against Dr Kennedy. The action was settled on the basis that judgment was entered against Dr Kennedy for the sum of $130,000 by way of damages and $15,000 for costs. Shortly afterwards, Dr Kennedy entered into an arrangement pursuant to Part X of the Bankruptcy Act 1966 (Cth) and the appellant recovered only a very small sum in respect of the judgment, an amount in the order of $7,000. On 19 April 2005, the appellant commenced the current proceedings in the District Court against the respondent alleging, in effect, that the respondent was negligent in permitting Dr Kennedy to carry out arthroscopic surgery in the hospital when he was not a qualified orthopaedic surgeon competent to practice orthopaedics, and in failing adequately to monitor his performance in the hospital. The action proceeded very slowly. The history of its initial stages was not before the court, but what does appear is that a substituted statement of claim was filed on 27 April 2006. On 8 August 2006, the respondent provided discovery of documents. That discovery included a copy of Dr Kennedy's application for accreditation at the hospital, dated 9 March 1993, and a copy of his curriculum vitae. It also included the respondent's 'Practitioners' Policy Manual' and the copy of the respondent's 'patient pre‑admission form' for the appellant, dated 23 November 1999. There was a notation on the pre‑admission form that the hospital had been accredited by the Australian Council on Healthcare Standards (ACHS). The appellant's solicitors wrote to the respondent's solicitors seeking discovery of certain documents which related to the hospital's accreditation by the ACHS.

Ratio Decidendi

Legal Principle Established

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