Popovic v Panagoulias
[2014] WASCA 86
•23 APRIL 2014
POPOVIC -v- PANAGOULIAS [2014] WASCA 86
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 86 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:50/2013 | 10 DECEMBER 2013 | |
| Coram: | MARTIN CJ PULLIN JA NEWNES JA | 23/04/14 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | JANE ELIZABETH POPOVIC as Executor of the Estate of EMIL POPOVIC PETER PANAGOULIAS by Next Friend FIONA AVERIL PANAGOULIAS MINISTER FOR HEALTH |
Catchwords: | Practice and procedure Extension of validity of writ for service Rules of the Supreme Court 1971 (WA), O 7 r 1 Order extending validity made ex parte Whether primary judge excluded hardship or prejudice to defendant arising from events occurring prior to expiration of period for service Practice and procedure Application for review of ex parte order O 58 r 23 Whether necessary for applicant to adduce additional material Bell v Aspinall (1998) 19 WAR 561 doubted |
Legislation: | Rules of the Supreme Court 1971 (WA), O 7 r 1, O 58 r 23 |
Case References: | Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 Bell v Aspinall (1998) 19 WAR 561 Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79 House v The King (1936) 55 CLR 499 Pangoulias (by his next friend Fiona Averil Pangoulias) v Minister for Health [No 2] [2012] WADC 120 Pangoulias (by his next friend Fiona Averil Pangoulias) v Minister for Health [No 3] [2013] WADC 60 Pangoulias v Minister for Health [2011] WADC 231 Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; (2005) 12 VR 639 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : POPOVIC -v- PANAGOULIAS [2014] WASCA 86 CORAM : MARTIN CJ
- PULLIN JA
NEWNES JA
- Appellant
AND
PETER PANAGOULIAS by Next Friend FIONA AVERIL PANAGOULIAS
First Respondent
MINISTER FOR HEALTH
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SLEIGHT DCJ
Citation : PANGOULIAS (by his next friend FIONA AVERIL PANGOULIAS) -v- MINISTER FOR HEALTH [No 3] [2013] WADC 60
File No : CIV 2791 of 2010
Catchwords:
Practice and procedure - Extension of validity of writ for service - Rules of the Supreme Court 1971 (WA), O 7 r 1 - Order extending validity made ex parte - Whether primary judge excluded hardship or prejudice to defendant arising from events occurring prior to expiration of period for service
Practice and procedure - Application for review of ex parte order - O 58 r 23 - Whether necessary for applicant to adduce additional material - Bell v Aspinall (1998) 19 WAR 561 doubted
Legislation:
Rules of the Supreme Court 1971 (WA), O 7 r 1, O 58 r 23
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr P D Quinlan SC
First Respondent : Mr T J Hammond
Second Respondent : No appearance
Solicitors:
Appellant : Denman Popperwell Lawyers
First Respondent : Shine Lawyers
Second Respondent : No appearance
Case(s) referred to in judgment(s):
Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104
Bell v Aspinall (1998) 19 WAR 561
Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79
House v The King (1936) 55 CLR 499
Pangoulias (by his next friend Fiona Averil Pangoulias) v Minister for Health [No 2] [2012] WADC 120
Pangoulias (by his next friend Fiona Averil Pangoulias) v Minister for Health [No 3] [2013] WADC 60
Pangoulias v Minister for Health [2011] WADC 231
Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; (2005) 12 VR 639
1 JUDGMENT OF THE COURT: This is an appeal against a decision of Sleight DCJ in the District Court who refused an application by the appellant to set aside an ex parte order made by Wisbey DCJ extending the validity of a writ of summons for service: Pangoulias (by his next friend Fiona Averil Pangoulias) vMinister for Health[No 3] [2013] WADC 60.
2 The appellant requires leave to appeal, pursuant to s 79(1)(b) of the District Court of Western Australia Act 1969 (WA). On 29 May 2013, Murphy JA referred the application for leave to appeal to the hearing of the appeal.
Background
3 In January 2006, Mr Popovic, a neurosurgeon, performed surgery on the first respondent, Mr Panagoulias, for a brain tumour. After the surgery, the tumour re-grew and, on 14 September 2007, further surgery was performed by Mr Popovic. The first respondent claimed that during the second surgery his carotid artery was lacerated and a small defect made in his anterior cranial fossa. Some three weeks after the second surgery, the first respondent was admitted to Royal Perth Hospital (RPH) suffering from a severe headache and fever. The first respondent was ultimately diagnosed with meningitis, a condition which caused him to suffer severe brain damage.
4 On 10 September 2010, the first respondent, by his next friend, Fiona Panagoulias, his plenary administrator under the Guardianship and Administration Act 1990 (WA), commenced proceedings for damages against Mr Popovic and the second respondent, the Minister for Health, as the entity responsible for the management of RPH. The writ of summons contained a general indorsement of claim. In it, the first respondent claimed damages for personal injury suffered on or about 6 October 2007 as a result of a breach of a duty of care owed to him by Mr Popovic in respect of neurological advice and treatment, and by the second respondent in respect of in-patient and other hospital services.
5 Mr Popovic died on 22 March 2011 and a grant of probate of his estate was obtained by the appellant on 20 July 2011. The first respondent's solicitor was informed of his death on 4 May 2011. At the time of his death, Mr Popovic had not been advised of a potential claim against him by the respondent and it is almost certain that he was unaware a writ had been issued.
6 Pursuant to O 2 of the Rules of the Supreme Court 1971 (WA), the last date for service of the writ of summons was 12 months from the date it was filed. The writ of summons was served on the second respondent on 9 September 2011, but was not served on Mr Popovic or, following his death, the appellant, within the 12 month period.
7 The explanation for the delay in service of the writ was set out in affidavits of the first respondent's solicitor, Ms Wendy Jane Nixon. Ms Nixon had conduct of the matter on behalf of the first respondent from 27 April 2011. In the affidavits, Ms Nixon said, in substance, that the delay was due to:
• difficulties in obtaining the relevant records and information from RPH;
• a decision not to serve the writ on Mr Popovic until written expert medical evidence had been obtained, so as to avoid the first respondent being exposed to an adverse costs order in the event there turned out to be no basis for the claim;
• difficulties in obtaining an opinion from an expert neurosurgeon on whether there had been a breach of duty and on causation - a neurosurgeon instructed by the first respondent's solicitors in January 2011 informed the solicitors only in June 2011 that he could not provide advice on the matter and another neurosurgeon, instructed in June 2011, did not prove a written opinion until 18 October 2011;
• it being possible only upon receipt of the neurosurgeon's report of 18 October 2011 to advise the first respondent that the claim against the appellant had sufficient prospects of success to be worth pursuing;
• difficulties in ascertaining the professional indemnity insurers of Mr Popovic.
8 On 10 September 2011, no document having been filed in the action in the preceding 12 months, the action was placed on the inactive cases list, pursuant to r 44A and r 44D of the District Court Rules 2005 (WA).
9 On 29 September 2011, the first respondent applied ex parte, among other things, for orders extending the validity of the writ for service on the appellant and removing the action from the inactive cases list.
10 On 18 January 2012, Registrar Harman ordered that the action be taken off the inactive cases list but refused to extend the validity of the writ for service: Pangoulias v Minister for Health[2011] WADC 231.
11 An appeal by the first respondent against the refusal to extend the validity of the writ for service was allowed by Wisbey DCJ on 3 August 2012: Pangoulias (by his next friend Fiona Averil Pangoulias) v Minister for Health [No 2] [2012] WADC 120. Wisbey DCJ ordered that the validity of the writ of summons for service be extended until 31 August 2012.
12 A copy of the writ was served on the appellant pursuant to the order of Wisbey DCJ and the appellant entered a conditional appearance on 3 September 2012.
13 It is necessary to digress briefly to explain Wisbey DCJ's reasons for allowing the appeal against the order of the registrar. His Honour noted at the outset of his reasons that the appeal was a hearing de novo. After reviewing the affidavit material, his Honour found that the writ was not served within time 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' [20]. He also observed that the first respondent was significantly cerebrally compromised and an award of damages if negligence were found would be substantial [23].
14 Wisbey DCJ noted that there was no legal imperative on the first respondent to serve the writ on Mr Popovic before his death. In those circumstances, any prejudice to the estate was confined to the loss of capacity to preserve medical records over a short period of time. His Honour considered it probable that most of those records would have been accessed by the second respondent and would be available to the appellant [24]. He also noted that it was a relevant factor that the limitation period had expired but observed that there was capacity under the Limitation Act 2005 (WA) to extend the limitation period [25].
15 His Honour considered that in the circumstances, and having regard particularly to the first respondent's mental incapacity, it was in the interests of justice to extend the validity of the writ for service to 31 August 2012 [27].
16 As the order of Wisbey DCJ was made ex parte, it was amenable to review, pursuant to O 58 r 23 of the Rules of the Supreme Court. The appellant applied for the order to be reviewed and that application came before the primary judge, who dismissed it.
Subsequent events
17 Before canvassing the reasons for decision of the primary judge, it is convenient to mention some material which came into existence after Wisbey DCJ's decision and upon which the appellant relied on the application before the primary judge, namely, a statement of claim and an affidavit of Scott Denman, the appellant's solicitor, sworn on 17 September 2012.
18 In the statement of claim, the first respondent alleges, relevantly, that, on or about 24 September 2007, following his discharge from hospital after the second surgery, he telephoned Mr Popovic to discuss his concern at mucous discharge from his nose. Mr Popovic told him it was nothing to worry about. It is alleged that when he saw Mr Popovic on 26 September 2007 the first respondent reiterated his concerns and was prescribed a course of Bactrim DS. On 2 October 2007, the first respondent says he telephoned Mr Popovic and told him the Bactrim had had little effect. Mr Popovic again told him it was nothing to worry about.
19 The first respondent alleges that, on 5 October 2007, he sneezed causing a large lump of fatty tissue to come out of his nose. Concerned that it may be a piece of the abdominal muscle used to plug the hole in his carotid artery, the first respondent telephoned Mr Popovic. Mr Popovic told him to put the tissue in a jar with some water and bring it to his next appointment. The first respondent alleges that that evening he suffered an extremely debilitating headache, which was worse the following morning, 6 October 2007. He says his wife telephoned Mr Popovic and described the symptoms to him. Mr Popovic advised the first respondent's wife to take the first respondent to the emergency department at RPH, which she did. The first respondent was subsequently diagnosed as suffering from meningitis.
20 It is alleged, relevantly, that Mr Popovic breached a duty of care he owed to the first respondent to take heed of the first respondent's complaints on 24 and 26 September 2007 and on 2, 5 and 6 October 2007. The first respondent alleges that those breaches, among others, caused him to suffer serious brain damage as a result of the meningitis.
21 The affidavit of Mr Denman deals with the disadvantage which it is said would be suffered by the appellant by reason of the absence of relevant medical records of Mr Popovic. In the affidavit, Mr Denman says that he has been provided by the appellant with all of Mr Popovic's clinical notes relating to the first respondent. Those notes contain no reference to a telephone conversation with the first respondent on any of 24 September, 2 October or 5 October 2007, or with the first respondent's wife on 6 October 2007. The only note is of a consultation with the first respondent on 26 September 2007 which simply records 'For a'gram next week. Green snot' and refers to a prescription for Bactrim.
22 Mr Denham says that he has reviewed the RPH records of 5 and 6 October 2007, and the only notes referring to the respondent on those days were notes made by other doctors taking a history provided by the first respondent. He has also reviewed entries on Mr Popovic's personal computer diary but says there is nothing relevant contained in that diary.
The reasons of the primary judge
23 It was submitted by the appellant that the additional material in the statement of claim changed the complexion of the prejudice suffered by the appellant. The appellant argued that Wisbey DCJ had assumed that medical notes made by Mr Popovic would be available to assist the appellant in responding to the claim. It has since emerged, however, that the first respondent relies, among other things, on the alleged conversations with Mr Popovic on 24 September 2007, 2 October 2007, 5 October 2007 and 6 October 2007, for which there are no such notes. That, it was contended, puts the appellant in a quite different position to that contemplated by Wisbey DCJ.
24 The appellant further submitted that in considering whether to extend the validity of a writ the court should not only consider the hardship or prejudice caused during the period of delay, but also any hardship or prejudice caused by the granting of an extension [26].
25 His Honour identified the question he had to decide as being whether the decision of Wisbey DCJ ought to be set aside in light of the new material before him [29]. He concluded that it should not.
26 The primary judge concluded that the additional telephone conversations of 24 September 2007 and 2 October 2007 added little to the first respondent's claim, given the consultation with Mr Popovic on 26 September 2007. Mr Popovic's note of that consultation appeared to confirm the first respondent's complaint. In addition, his Honour considered that Wisbey DCJ had not made his decision on the assumption that notes would be available to assist the appellant. In his Honour's view, Wisbey DCJ had simply emphasised that it was unlikely that in the short time between the expiration of the time for service and notification to the appellant of the claim any extant notes would be lost [30].
27 His Honour considered that the factors militating against the grant of an extension of time had been taken into account by Wisbey DCJ, namely, that the application was made outside both the limitation period and the 12 month period for service and no good reason had been advanced for the delay in service, and that 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 appreciate or alternatively address the ramifications of the death of Mr Popovic [31]. Wisbey DCJ had also taken into account the undesirability of the practice of issuing a writ and not informing the defendant of its existence until supportive evidence was available [36].
28 His Honour accepted the appellant's submission that in determining whether an extension should be granted a relevant factor is the hardship or prejudice to the appellant if the application is granted. His Honour noted that in assessing hardship or prejudice to the appellant and the general justice of the case, it was relevant to consider any changes in circumstances since the expiration of the period for service [33].
29 His Honour noted that in this case the appellant did not contend that the delay in service had caused any hardship or prejudice to the appellant in terms of the availability of patient notes or witnesses [34]. The failure to serve the writ within the 12 month period had not caused any patient notes of Mr Popovic to be lost and Mr Popovic had died before the 12 month period for service had expired so that his oral evidence would not have been available even if the time period had been complied with. His Honour considered, however, that had patient notes been lost as a result of the delay, justice would have required the application for an extension of time for service to be dismissed [34].
30 The primary judge considered that the indirect prejudice arising from delay in terms of memory loss did not apply as Mr Popovic had died prior to the expiration of the period for service and his oral evidence would not have been available to the appellant in any event [35].
31 The primary judge observed that, as the claim was likely to be significant, the first respondent would suffer significant prejudice if the extension was not allowed. His Honour considered it was not to the point that the first respondent may have a separate claim against the second respondent on other grounds [37]. In relation to the prejudice to the appellant, his Honour noted that the lack of patient records pre-existed the expiration of the period for service of the writ. In addition, the lack of patient records was relevant to some only of the alleged breaches of duty by Mr Popovic [38].
32 His Honour concluded that the consequences for the appellant of extending the period for service was the loss of having the claim defeated for non-compliance with the rules where the appellant, due the death of Mr Popovic, was already in a difficult position to defend the claim. The full extent of those pre-existing disadvantages was not before Wisbey DCJ, but the primary judge considered that even if Wisbey DCJ had been aware of the full extent of the disadvantages revealed by the statement of claim and the affidavit of Mr Denman, it would not have altered his decision [39].
33 The primary judge found that the justice of the case fell narrowly in favour of the existing orders made by Wisbey DCJ being upheld and accordingly dismissed the application to set aside those orders [40].
34 The appellant appeals against the primary judge's decision.
Grounds of appeal
35 The grounds of appeal are as follows:
In dismissing the appellant's application to set aside the ex parte order made by Wisbey DCJ granting the first respondent's application to extend the validity of the writ of summons of service, the Primary Judge erred in law:
1. by limiting his assessment of the hardship or prejudice to the appellant and general justice of the case by only considering changes in circumstances in the period since the validity of the writ for service had expired;
2. in that, in exercising his discretion, he
(a) disregarded, or failed to give adequate weight to, the death of Mr Popovic for the purposes of assessing the hardship or prejudice that the appellant would suffer if an order was made extending the validity of the writ for service;
(b) failed to give adequate weight to the facts that the limitation period had expired prior to the expiry of the validity of the writ for service, and that the hardship or prejudice that the first respondent would suffer (if an order was not made extending the validity of the writ for service) was self-inflicted.
36 The order of Wisbey DCJ to extend the validity of the writ for service under O 7 r 1(2) was made ex parte. The appellant's application to the primary judge to set aside that order was made under O 58 r 23. Order 58 r 23 provides, with admirable succinctness, that '[t]he Court may set aside any order which has been made ex parte'. It therefore confers a broad discretion on the court, limited only by the inherent requirement that it be exercised judicially.
37 Accordingly, it is necessary for the appellant to show that in exercising his discretion to refuse to set aside the order of Wisbey DCJ, the primary judge erred in a sense identified in House v The King (1936) 55 CLR 499, 505, namely, that his Honour acted upon a wrong principle, was mistaken as to the facts, or took into account an irrelevant consideration or failed to take into account a relevant consideration. An alleged error as to the weight to be given to a relevant consideration will give rise to an appellable error only if it amounts to a failure to exercise the discretion entrusted to the court.
38 On the hearing of the appeal, presumably with that in mind, the appellant's case was distilled further from the grounds of appeal. Senior counsel for the appellant identified the critical issue on the appeal to be whether, in considering hardship or prejudice to the appellant by the grant of an extension of time for service, the primary judge should have had regard to the effect of the death of Mr Popovic. It was submitted that his Honour had wrongly disregarded that hardship or prejudice on the basis that it had occurred prior to the expiration of the period for service. Senior counsel for the appellant conceded that if the appellant failed to make good that proposition the appeal must fail (ts 2). That concession was properly made.
39 It was submitted on behalf of the appellant that the assessment of the hardship or prejudice that would be caused to the appellant by the granting of an extension of time is not limited to changes in circumstances after the expiration of the period for service. The assessment that must be made is of the hardship or prejudice that would arise if the extension were granted, not simply the hardship or prejudice that would arise by reason of events that had occurred after the expiration of the period for service.
40 Senior counsel for the appellant submitted that in this case the primary judge had fallen into error because he had disregarded the hardship or prejudice to the appellant caused by the death of Mr Popovic on the basis that it had occurred before the expiration of the period for service. We do not accept that submission.
41 Order 7 r 1(2) provides, in effect, that where a writ has not been served on a defendant within a period of 12 months from its date of issue, the court may extend the validity of the writ for service from time to time for a period not exceeding 12 months at any one time. The discretion conferred by the rule is a broad one. The exercise of the discretion was described in Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79 by Ipp J (with whom Malcolm CJ & Anderson J agreed) as follows:
[T]he 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].
42 It is correct, in our view, that the hardship or prejudice to a defendant to be taken into account on an application under O 7 r 1(2) is not limited to that which arises from events after the expiration of the 12 month period under O 7 r 1(1). The relevant hardship or prejudice is that which will arise if the validity of the writ is extended, whether that hardship or prejudice comes about by reason of events before or after the expiration of the period for service of the writ. However, the weight to be given to hardship or prejudice caused by events before and after the expiration of that period respectively will depend upon the particular circumstances of the case. There can be no hard and fast rules as to that, although no doubt in many cases hardship or prejudice arising from post-expiration events may tend to loom larger than hardship or prejudice arising from events that had occurred before the period for service had expired.
43 It follows that if, as the appellant contended, the primary judge had excluded from consideration the hardship or prejudice caused to the appellant by the death of Mr Popovic, his Honour would have been in error.
44 We do not, however, consider that the primary judge did exclude it. In our view, his Honour did not approach the matter on the basis that the relevant hardship or prejudice to the appellant was limited to that caused by events after the expiration of the period for service. That is evident on a fair reading of his Honour's reasons as a whole.
45 The primary judge noted in the submission on behalf of the appellant that the hardship or prejudice to be considered is not only the hardship or delay caused during the period of delay but any hardship or delay that is caused by the granting of the application, including hardship or delay caused by difficulties in ascertaining witnesses and their ability to recall events [26]. As we understand his Honour's reasons, he accepted the correctness of that submission, noting that it was within the broad scope of exercising the discretion by reference to the general justice of the case, as enunciated in Brealey, upon which the appellant had relied [33].
46 The primary judge observed that when assessing the hardship or prejudice to the appellant and the general justice of the case, it was 'relevant to consider' any changes in circumstances since the validity of the writ for service had expired and whether such changes created any additional hardship or prejudice [33]. He concluded that there were no such changes. Contrary to the appellant's case, we do not understand his Honour there to be suggesting that, conversely, it was irrelevant to consider any changes in circumstances before the validity of the writ for service had expired which might have created any additional hardship or prejudice. It is evident his Honour considered that additional hardship or prejudice caused by post-expiration factors was a relevant factor, not the only relevant factor.
47 The primary judge went on to express the view that if the failure to serve the writ within time had caused patient notes of Mr Popovic to be lost then the justice of the case would have required the application for an extension of the validity of the writ to be dismissed [34]. His Honour pointed out that it was not contended any patient notes had been lost. Again, contrary to the appellant's contention, we do not read his Honour's statement as reflecting a view that relevant hardship or prejudice was limited to that arising from events after the period for service had expired. His Honour was simply concerned to make the point that had at any stage patient notes been lost because of a failure to serve the writ within time, that would have been decisive against the first respondent.
48 The appellant placed considerable reliance on what his Honour then said as follows:
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.
…
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 [35] - [38].
49 The appellant submitted that it was evident from those passages that his Honour had excluded entirely the hardship or prejudice caused by Mr Popovic's death. Thus, it was argued, in [38] no mention was made of his death, that having been excluded in [35] as a relevant factor. We do not agree.
50 It is not clear precisely what the primary judge intended by the reference to 'indirect prejudice arising from delay in terms of loss of memory as considered by Ipp J in [Brealey]' [35]. In Brealey, the plaintiff claimed against the hospital in which a surgical procedure had been performed and the surgeon who had performed it, alleging negligence. The writ had been issued some 12 days before the six year limitation period expired and was served more than a year later. The surgeon claimed that the delay had caused him prejudice because documents were missing and there would be difficulties tracing a number of relevant witnesses. In the course of his reasons for refusing an extension of the validity of the writ, Ipp J referred to what he described as the inevitable effect of a long delay in the service of a writ on the memory of witnesses. As we understand the primary judge's reasons in the present case, his Honour intended to do no more than to make the perhaps somewhat obvious point that the problem of fading memories was not in itself a factor in this case because the only witness identified by the appellant, Mr Popovic, had died before he would have been able to give evidence [35].
51 What is clear, however, when the passages relied upon by the appellant are read in the context of his Honour's succeeding comments is that his Honour did not intend to suggest that the death of Mr Popovic was an irrelevant factor. There, his Honour said:
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.
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 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 [38] - [39].
52 Those statements are consistent with a recognition by the primary judge that the death of Mr Popovic prior to the expiration of the period for service was a relevant factor in the assessment of the hardship or prejudice to the appellant. It is evident that what his Honour described as the 'pre-existing disadvantages' suffered by the appellant included the death of Mr Popovic. What the statement of claim and the affidavit revealed, by way of the absence of patient notes, was the full extent of that disadvantage. It is also evident, however, that in the circumstances his Honour regarded the hardship or prejudice to the appellant from Mr Popovic's death as being a factor of relatively little weight and that, having regard to all the matters he had identified, on balance it was in the interests of justice that the validity of the writ be extended. That was a view that was open to him. No appellable error has been made out.
53 It follows that the appeal must be dismissed.
54 There is one final matter. It was unnecessary in the present case to consider the decision of the Full Court in Bell v Aspinall (1998) 19 WAR 561, in which it was held that in order to enliven the court's jurisdiction to set aside an ex parte order under O 58 r 23, it is necessary for the applicant to adduce additional material which throws a new and different light on the situation of the parties involved. In this case, there was additional material before the primary judge. However, the correctness of the decision in Bell v Aspinall must now be regarded as in doubt. In Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; (2005) 12 VR 639, the Court of Appeal of Victoria expressly declined to follow it and it is also inconsistent with the approach taken by the Court of Appeal of New South Wales in Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104. In both of those cases, the court took the view that it was unnecessary to demonstrate error on the part of the initial judge or to put additional material before the court. Rather, the matter was to be heard de novo.
55 As ex parte orders are, by definition, made in denial of basic principles of procedural fairness, that approach would appear to be more consistent with principle than the jurisdictional threshold imposed in Bell v Aspinall on the exercise of the power to set aside such orders. Pending re-consideration of Bell v Aspinall, it would therefore be prudent for judges at first instance to deal with applications under O 58 r 23 on the alternative bases that the position is as stated in Bell v Aspinall and upon a broader review of the issues de novo. If there are circumstances where there would be a different outcome depending on which approach is taken, the issue of principle can then be resolved by this court.
Conclusion
56 We would grant leave to appeal but dismiss the appeal.
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