Pollard v Endale Pty Ltd
[2009] WASCA 189
•3 NOVEMBER 2009
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 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.
The respondent apparently did not accede to the request and on 29 August 2006 the appellant brought an application for, among other things, particular discovery. The documents sought included all documents relating to the hospital's accreditation by the ACHS. The application was heard by a deputy registrar of the District Court on 5 October 2006. The deputy registrar declined to order the discovery sought and adjourned the application sine die.
An amended defence was filed by the respondent on 14 November 2006 and a reply filed by the appellant on 23 March 2007. The action seems then to have gone into hibernation for a considerable period of time.
On 4 April 2008, the respondent's solicitors wrote to the appellant's solicitors saying they considered there was no impediment to the action being entered for trial. They provided their unavailable dates for a pre‑trial conference. The appellant's solicitors did not respond. The respondent's solicitors wrote again to similar effect on 12 May 2008, again without evoking any response. On 28 May 2008, the respondent's solicitors wrote to the appellant's solicitors saying the respondent intended to enter the action for trial. That letter also evoked no response.
In the meantime, the 'entry for trial' milestone under the District Court Case Management Rules had been extended by the court on 31 July 2006, 14 January 2007, 31 August 2007 and finally on 31 December 2007.
On or about 5 June 2008, the respondent filed an entry for trial at the District Court. A pre‑trial conference was listed by the court for 27 June 2008. The conference was adjourned to 31 July 2008 at the request of the appellant, on the ground that the appellant was in the process of instructing other solicitors to represent him. On 31 July 2008, the pre‑trial conference was adjourned to 25 September 2008, again on the application of the appellant, this time on the ground that he had not obtained expert evidence he required for his case. When the pre‑trial conference came back on for hearing on 25 September 2008, it was adjourned to 7 November 2008, again on the application of the appellant on the basis that he had still not obtained expert evidence. The same occurred on 7 November 2008, when the pre‑trial conference was adjourned to 16 December 2008.
On 4 December 2008, the appellant's solicitors wrote to the respondent's solicitors requesting discovery of a number of categories of documents, including all correspondence between the respondent and the ACHS in relation to the accreditation of the hospital by the ACHS, any documents relating to Dr Kennedy's status at the hospital, and several categories of documents relating to the hospital's compliance with the ACHS's 'evaluation and quality improvement program'. The appellant's solicitors went on to say that they had instructions to seek an adjournment of the pre‑trial conference listed for 16 December 2008 as the appellant would not be in a position to negotiate a settlement without the requested documents.
The respondent's solicitors responded by a letter dated 9 December 2008, objecting to providing discovery of the documents sought on the ground that some had already been discovered and the balance were not relevant and/or the request was oppressive. The respondent declined to agree an adjournment of the pre‑trial conference.
On 11 December 2008, the appellant applied for an order for discovery of the documents set out in the letter of 4 December 2008. That application was heard by a deputy registrar of the District Court on 12 January 2009 and dismissed. The appellant filed a notice of appeal against that decision on 22 January 2009. The notice of appeal included an amended form of orders for the discovery the appellant sought. In the meantime, the action had been set‑down for a listing conference on 30 March 2009.
At the listing conference, the principal registrar of the District Court made orders, among other things, that the appellant's appeal against the order of the deputy registrar be listed for hearing before a judge in chambers on 22 April 2009 and that the action be listed for trial for five days commencing 7 September 2009.
In fact, the hearing of the appeal was changed to 22 May 2009 due to the unavailability of the appellant's counsel. On 22 May 2009, Sleight DCJ heard the appeal and reserved his decision. His Honour delivered his reasons for decision on 10 July 2009: Pollard v Endale Pty Ltd [2009] WADC 97. He found that documents relating to the systems implemented by the respondent pursuant to its accreditation by ACHS in respect of the appointment of doctors such as Dr Kennedy, and the monitoring of their performance, were discoverable. His Honour found, however, that some of the categories of documents sought were too wide, and in respect of the balance that there was nothing to indicate the respondent had in its possession, custody or power documents of the relevant description which it had not discovered.
Sleight DCJ adjourned the application so the appellant could prepare a minute of proposed orders in the light of his reasons for decision. Orders were made by his Honour on 17 July 2009. The orders required the respondent to give discovery within 21 days of all documents lodged with ACHS in support of the 1999 accreditation of the hospital which pertained to the appointment and monitoring of medical practitioners using the respondent's facilities, including documents relating to the credentials and scope of practice of medical practitioners using those facilities. His Honour granted liberty to the appellant to apply for further discovery once the order had been complied with. It seems that no such application has been made.
Discovery pursuant to the order was given by the respondent on 12 August 2009, five days later than the time period stipulated in the order.
On 18 August 2009 the parties attended a directions hearing before a registrar of the District Court. The registrar ordered, among other things, that the appellant bring any application to vacate the trial dates on or before 21 August 2009. The appellant's application was in fact filed and served on 24 August 2009.
The application came on for hearing before the primary judge on 28 August 2009. Her Honour dismissed the application.
The findings of the primary judge
The primary judge gave ex tempore reasons for her decision. In her reasons, the primary judge noted that the application to adjourn the trial was based on four grounds:
1.the appellant's solicitors wished to obtain Dr Mulligan's opinion as to whether the respondent's supplementary discovery was sufficient;
2.the appellant's statement of claim needed to be amended to particularise the respondent's failure to follow the policies and procedures required under the terms of its accreditation with ACHS;
3.the appellant wished to administer interrogatories to the respondent in light of the respondent's latest discovery; and
4.as a result of that discovery, it had emerged that there were further documents which the respondent was required to discover.
In respect of the first ground, her Honour observed that whether or not the respondent's discovery was sufficient was a matter to be determined by reference to the pleadings and the discovered documents, not on the basis of Dr Mulligan's opinion.
On the second ground, her Honour considered that the fact the appellant proposed to make amendments to the statement of claim did not justify an adjournment. Any application to amend the statement of claim could be determined before the trial commenced. Her Honour noted that there was no indication by the appellant as to the nature of any proposed amendments.
The primary judge also rejected the contention that the appellant needed time to interrogate the respondent. Her Honour concluded that the matters about which the appellant said he wished to interrogate the respondent were known to the appellant, at the latest, by December 2008. No satisfactory explanation had been provided as to why the issue had not been raised until just before the trial.
Her Honour also rejected the contention that there were a number of further documents which the respondent was required to discover. That contention was based on a survey report (the survey report) prepared by the respondent in 1996 for its ACHS accreditation. Having considered the survey report, her Honour concluded that, except in one respect, there was no reason to believe that the documents of which the appellant sought discovery existed in relation to Dr Kennedy and otherwise the documents were not relevant to the matters in issue in the action or were peripheral. The exception was in respect of the credentialing of medical officers, which the survey report indicated occurred at meetings of the respondent's health advisory committee. The primary judge ordered the respondent to discover any documents disclosing the deliberations of the respondent or its health advisory committee in relation to Dr Kennedy's accreditation. Her Honour ordered that the respondent provide that discovery by 2 September 2009.
The primary judge concluded that the appellant had failed to make out any grounds for an adjournment of the trial. Her Honour observed that the issues in the action had not altered since 2006 and the appellant already had material, including an expert report from Dr Mulligan, on those issues. There was no evidence that the appellant would be shut out from litigating any relevant issue which was fairly arguable.
The primary judge found that there would be irreparable prejudice to the respondent in delaying the trial of the action. The appellant had commenced the action in 2005, in relation to events which had taken place in 1999. The respondent was entitled to have the matter resolved without further delay. Her Honour also took into account the waste of court resources that would occur if the trial was vacated, observing that the public interest in the efficient use of court resources was a relevant consideration in the exercise of her discretion.
The subsequent discovery
The further discovery ordered by the primary judge was provided on 2 September 2009 by an affidavit of the respondent's acting director of nursing, Ms Bremer. Ms Bremer deposed that she and other members of the hospital staff had searched the archives of the hospital for any documents minuting or otherwise recording the proceedings of the committee at which Dr Kennedy was accredited, but those searches had not revealed any documents. Ms Bremer said the documents may have been destroyed during any of the major clean ups which had occurred in the 16 or so years since the minutes would have been created, but she was not in a position to say what in fact had happened to them.
The ground of the proposed appeal
The appellant did not provide any proposed grounds of appeal in the documents filed in support of the application, but in the course of argument counsel for the appellant formulated the following ground of appeal:
The trial judge erred in failing to consider the substantial prejudice to the appellant in not vacating the trial dates thereby depriving the appellant of a fair and proper opportunity to advance his case against the respondent including making amendments to the statement of claim, obtaining further discovery from the respondent and properly instructing the appellant's expert.
The appellant's submissions
In the course of argument, the appellant's counsel conceded that, in substance, the appellant relied on the inadequacy of the respondent's discovery. It was submitted that unless the trial was adjourned, the appellant would be denied the opportunity of obtaining proper discovery from the respondent of documents relating to Dr Kennedy's appointment at the hospital, the respondent's knowledge of his experience and ability, and the monitoring of his surgical activities at the hospital.
Counsel argued that the matter was not ready for trial because the respondent had failed to provide proper discover much earlier in the interlocutory process. The appellant had done all in his power to obtain proper discovery but, due to the respondent's default, proper discovery had not been given. As a consequence, the appellant had been unable to prepare his case properly for trial.
The respondent's submissions
Counsel for the respondent submitted that the question of discovery had been comprehensively dealt with by Sleight DCJ, who had found that the discovery sought by the appellant was too broad, vague and oppressive, or alternatively that there was nothing to suggest that there were further documents which ought to have been discovered. In respect of the small number of documents which his Honour had required the respondent to discover, there was nothing, as the primary judge had observed in her reasons, which could advance or alter the nature of the appellant's case. Whilst the primary judge had ordered that the respondent provide some very limited further discovery, the respondent had, before that order was made, already served an affidavit of the respondent's solicitor, based on information and belief, deposing to the fact that the respondent had been unable to locate any further documents of the nature concerned. That there were no such documents was subsequently confirmed in the affidavit of Ms Bremer of 2 September 2009.
Counsel for the respondent argued that the primary judge had correctly found that the appellant would not be shut out from litigating any relevant issue that was fairly arguable. Her Honour had correctly noted that the action related to events in 1999 and had been on foot for more than four years. The respondent was entitled to the resolution of the issues with minimum delay and expense. An adjournment would also result in inefficiencies in the use of the court as a public funded resource.
It was submitted that the appellant had failed to show that there was any reasonable basis for concluding that her Honour's decision was in error or attended with sufficient doubt to justify the grant of leave to appeal.
The disposition of the application
As the appeal is in respect of an interlocutory order, the appellant requires leave to appeal. The grant of leave involves the exercise of discretion. In general, it must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave, and that substantial injustice be done if the decision is not reversed: Wilson v Metaxas [1989] WAR 285, 294. Those are not rigid or exhaustive criteria and leave may be granted if, in all of the circumstances, it is in the interests of justice to do so: The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40, 56 ‑ 57.
As we have mentioned, counsel for the appellant accepted that the question of prejudice to the appellant if the trial was not adjourned turned on the adequacy of the respondent's discovery. In our view, however, there is nothing to suggest that the respondent's discovery is inadequate. While counsel for the appellant spent some time canvassing the survey report in an attempt to demonstrate that there are, or are likely to be, further relevant documents in the respondent's possession, we can see nothing in that document, or otherwise, which would justify such a finding.
In the survey report, the criteria which the hospital was required to meet in order to obtain ACHS accreditation are identified and it is stated that the hospital has met each of them. It was contended on behalf of the appellant that the fact the hospital had met certain criteria demonstrated that it had or had had in its possession custody or control documents which it had not yet discovered. Counsel referred in argument to:
•criterion 3.1.1, which required, among other things, that 'only trained, qualified staff are employed' by the hospital and that 'external service providers, eg physiotherapists, are verified qualified in their field';
•criterion 3.1.2, which required that 'all professional staff have verification of qualifications/registration prior to employment and then annually' and that 'all medical officers are credentialed through the HAC [the Health Advisory Committee of the hospital]';
•criterion 3.2.1, which is part of criterion 3.2, the latter being headed 'Staff recruitment, selection, appointment and responsibilities'. Criterion 3.2.1 (dealing with the requirement that the recruitment procedure of appointees ensures appropriate competence, training and experience) required, among other things, that 'advertising details criteria and qualifications [are] required' and that 'qualifications and registrations must have appropriate supporting documentation', and further that 'copies are kept in personnel files' and 'references are checked'.
It was submitted, in effect, that the primary judge should have found that the respondent had or had had in its possession, custody or control, but had failed to discover, documents of the various sorts referred to in those criteria relating to Dr Kennedy. In those circumstances, it was argued, the appellant would be prejudiced unless the trial was adjourned to enable him to obtain proper discovery.
There is no substance in that submission. In the first place, as the primary judge observed, it is not at all clear that some parts of the survey report to which counsel for the appellant referred relate to Dr Kennedy's accreditation or work at the hospital at all; and secondly, in any event the provisions of the survey report relied upon are in such general terms that no inference could reasonably be drawn that any documents of the type alleged existed, or were likely to exist, in relation to Dr Kennedy. We consider the primary judge was plainly correct in concluding that, apart from the limited discovery she ordered, there was no basis for a finding that the respondent's discovery was incomplete.
There was nothing else to suggest that the appellant would be prejudiced if the trial were not adjourned. The matters in issue have been settled since 2006. Although it is the case that the appellant initially had some difficulty in obtaining an expert to advise him and provide expert evidence, he has had the services of an expert, Dr Mulligan, since 2008 and Dr Mulligan has provided expert reports to the appellant. There is nothing to suggest that the appellant cannot run the case that is pleaded. If, as the appellant's counsel contended, it is likely that further documents of the respondent will turn up at the commencement, or during the course, of the trial that will be a matter for the trial judge to deal with, should it arise.
It is also the case, as the primary judge observed, that there is material and serious prejudice to the respondent inherent in further delay. The respondent is entitled to the timely and efficient resolution of the action against it: O 1 r 4A, Rules of the Supreme Court 1971 (WA). That has hardly been achieved so far in this case. The action concerns events which occurred in 1999. The action itself has been on foot for more than four years and its slow progress appears to be at least substantially due to delay on the appellant's part. It was eventually the respondent which entered it for trial, in June 2008. The appellant did not apply to countermand the entry until 24 August 2009, despite the fact that, on 30 March 2009, the action had been listed for a five day trial commencing 7 September 2009. The consequence if the trial were now to be adjourned would be that the action would go back into the list of cases awaiting trial, leaving the respondent with the action hanging over it for a further indefinite period.
The primary judge was also entitled to take into account, as she did, the effect an adjournment of the trial at this late stage would have on the efficient utilisation of court resources: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 258 ALR 14.
In our view, the appellant has failed to identify any error by the primary judge in exercising her discretion to refuse the adjournment. We consider, with respect, that her Honour properly concluded that no grounds for an adjournment had been made out.
It was for those reasons that we concluded that leave to appeal should be refused.
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