Rachel Ann Stronach an infant by her next friend Joy Lorraine Stronach v Chang - [2001] WADC 111

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: RACHEL ANN STRONACH an infant by her next friend JOY LORRAINE STRONACH & ORS -v- CHANG [2001] WADC 111

CORAM: NISBET DCJ

HEARD: 1 MAY 2001

DELIVERED : 17 MAY 2001

FILE NO/S: CIV 2161 of 1992

BETWEEN: RACHEL ANN STRONACH an infant by her next friend JOY LORRAINE STRONACH
First Plaintiff
JOY LORRAINE STRONACH
MICHAEL ROBERT STONACH
Second Plaintiffs
AND
CHEE MENG CHANG
Defendant

Catchwords:

Practice and procedure - Application to dismiss second plaintiffs' claim for want of prosecution - Principles - Turns on own facts

Legislation:

Rules of the Supreme Court

Result:

Second Plaintiffs' claim dismissed

Representation:

Counsel:

First Plaintiff                :     Mr G M Townsend
Second Plaintiffs           :     Mr G M Townsend
Defendant:     Ms M D Smith

Solicitors:

First Plaintiff                :     Stables Scott
Second Plaintiffs           :     Stables Scott
Defendant:     Edwards Wallace

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

Birkett v James [1978] AC 297
Jaensch v Coffey (1984) 155 CLR 549
Lewandowski v Lovell (1994) 11 WAR 124

Case(s) also cited:

Nil

NISBET DCJ: By a writ of summons dated 10 April 1992 filed in the Registry of this Court on 13 April 1992 the plaintiffs brought an action against the defendant for damages for personal injuries allegedly sustained by the first plaintiff at her birth in consequence of the negligence of the defendant. By a statement of claim dated 10 April 1992 filed in this Court on 14 April 1992 the first plaintiff pleaded that she was born about nine weeks prematurely on 1 May 1986 at the Katanning District Hospital having been delivered of her mother Joy Lorraine Stronach, the first named second plaintiff by the defendant. She pleads that during her birth she was severally asphyxiated and by reason of both her premature birth and asphyxia she suffered severe brain injury. She alleges that her brain injury was caused by the negligence of the defendant and particulars of the alleged negligence are then pleaded. The claim of the second plaintiffs as parents of the first plaintiff is barely pleaded. The plea is contained in the last sentence of par 10 of the statement of claim which reads:
"The second plaintiffs suffered wage and economic loss, nervous shock and were put to expense, and the further expense of intensive care treatment for the first plaintiff and expenses incidental to her subsequent care."
No particulars were provided.
The defendant entered an appearance on 11 May 1992, filed a defence on 15 June, received a request for discovery of documents on behalf of "the plaintiff" on a day uncertain but the request on the Court file is dated 17 June 1992, and provided an affidavit of discovery of documents sworn 24 June 1992 and filed in Court 25 June 1992.
By notice filed 29 June 1992 the defendant sought discovery from the plaintiffs. By an affidavit of discovery sworn by the second plaintiffs on behalf of themselves and, in the case of Mrs Stronach, on behalf of the first plaintiff on 1 September 1992 and filed in Court on 7 September 1992, discovery was provided to the defendant.
By a notice dated 27 October 1992 filed 27 October 1992 "the plaintiff" sought further and better discovery from the defendant. On 9 November 1993 the plaintiffs, having taken no step in the action for in excess of 12 months gave notice of their intention to proceed. On 9 August 1996 the plaintiffs gave a further notice of their intention to proceed with the action, no step having been taken in the proceedings in the intervening period of almost three years. The next step in the proceedings was taken by the defendant on 11 March 1998 when he applied by summons to chambers seeking an order that the plaintiffs' claim be dismissed for want of prosecution. The application was supported by a comprehensive affidavit sworn by the defendant's solicitor, Ms Morag Smith, on 11 March 1998. That affidavit details all of the investigations undertaken by the defendant in defence of the plaintiffs' claim and then deposes that the plaintiffs took little or no steps to prosecute their claims against the defendant after September 1992 save for the service of a supplementary affidavit of discovery on or about 26 June 1997. That affidavit is not to be found on the Court file and apparently has not been filed.
Ms Smith then deposes that on 8 August 1997 she wrote to the plaintiffs' solicitor enclosing a report of a medical expert engaged by the defendant and inviting settlement on the basis that the action be discontinued with each party paying their own costs. The plaintiffs' solicitor on the record replied stating that he was seeking his clients' instructions following which he would contact the defendant's solicitors. Ms Smith states that having received no response she wrote again on 1 October 1997 which elicited a response from the plaintiffs' solicitor on 3 October 1997 stating that the plaintiffs had arranged to transfer their files to another firm of solicitors. On 24 November 1997 Ms Smith wrote to the new firm of solicitors asking that they file a notice of change of solicitors but received no response. She followed that up on 3 March 1998 by telephoning the new firm of solicitors who advised her that he had no instructions to act on behalf of the plaintiffs and that he had not received their file.
Ms Smith then went on to depose to the potential for injustice in the conduct of the defendant's defence on account of the plaintiffs' delay in the prosecution of their claims.
When the matter first came on for hearing before a Registrar of this Court on 18 March 1998 there was no appearance for any of the plaintiffs and Ms Smith moved for an adjournment to 1 April 1998. On that day the plaintiffs' solicitor on the record appeared to advise that he no longer acted for the plaintiffs, his instructions having been withdrawn apparently, and a post box number was given for the plaintiffs. In consequence of this revelation the application was adjourned sine die. It was re‑listed again on 18 June 1999, the Court noting that there had still been no action by the plaintiffs' solicitor on the record to get off the record and with correspondence having been directed to Mrs Stronach at the address provided previously. On 18 June 1999 the Court's record is incomplete but it appears that the application was again adjourned sine die because the plaintiffs had not instructed new solicitors.
The defendant, anxious to obtain some resolution to the application again listed the matter for hearing (before a Judge in chambers on this occasion) on 4 September 2000 and arranged service of notice of the hearing by the Court by mail to the plaintiffs at the post box address previously given.
On 17 August 2000 Ms Smith swore a further affidavit in support of her application deposing that she had not received any communication from the plaintiffs nor from any solicitors advising that they had accepted instructions on their behalf.
The summons came on for hearing before me in chambers on 4 September 2000 when Ms Smith appeared for the defendant and Mr Stronach appeared in person. After hearing some submissions I determined to adjourn the application to Tuesday 17 October 2000 to enable the plaintiffs to instruct new solicitors and I determined to case manage the action from that point. As the transcript discloses I advised Mr Stronach as follows:
"The delay in this matter from at least your wife and your own perspective is very bad. Eight years is a very long delay, and these days, courts are becoming much more strict on their control of actions before you are using a public resource which is publicly funded by your tax, and everybody has got to get a fair go in the courts. Cases like this deprive other litigants of the opportunity to get their day in court. So you can't delay this any further. We can't let it drift along."
On 17 October 2000 the plaintiffs appeared through counsel Mr G M Townsend. No notice of address for service had been filed. Mr Townsend sought an adjournment for a further period of 28 days to enable him to file affidavits in opposition to the application. I then adjourned the proceedings to 30 November 2000 for further directions. Mr Stronach swore an affidavit 29 November 2000 which was filed that day. The affidavit does not properly explain the lengthy delay nor does it provide any material in support of the claim of the second plaintiffs. The only explanation for the delay in the affidavit is as follows:
"4.Whilst there may have been some delay with respect to prosecution of this action we have experienced considerable difficulty in retaining solicitors to act on our behalf in view of the complexity of the matters in issue and the nature of the evidence to be adduced at trial.
5.Initially the plaintiffs were represented by Messrs Hofmans solicitors of Adelaide Terrace, Perth then subsequently by T D Hofman & Co Solicitors of West Perth. Thereafter we sought representation by Messrs Anthony Torre & Monaco solicitors of Fremantle who from what I have been able to ascertain did not become solicitors on the record and declined to act.
6.After consultation with Michael O'Connor of O'Connor Partners solicitors of West Perth Mr O'Connor advised that he did not undertake the conduct of medical negligence claims however he did subsequently refer me to Messrs Stables Scott of St George's Terrace Perth who have accepted our instructions to act in respect of the matter.
7.I say the defendant has been on notice since 1992 of these proceedings and that it is clear from both the Court record and from the affidavit of discovery filed on behalf of the defendant that all of the relevant notes and materials and documents have been available almost from the outset."
Whilst I declined to strike out the claim of the first plaintiff on account of the delay I was minded to entertain the application to strike out the claim of the second plaintiffs and then adjourned the matter to a special appointment, making other programming orders in respect of the first plaintiff's claim in relation to the exchange of experts reports and the like.
The defendant's application to have the claim of the second plaintiffs dismissed for want of prosecution came on for hearing before me at a special appointment on Tuesday 1 May 2001.
In Lewandowski v Lovell (1994) 11 WAR 124 the Full Court of the Supreme Court of Western Australia, applying Birkett v James [1978] AC 297, held that a court would move to dismiss a claim for want of prosecution in circumstances where it came to the opinion that the default had been intentional and in disobedience of an order of the Court, or in pursuance of conduct amounting to an abuse of the Court's process, or in circumstances where there had been an inordinate and inexcusable delay on the part of a plaintiff or a plaintiff's legal representatives and that that delay would give rise to a substantial risk that it was not possible to have a fair trial of the issues in the action or was likely to cause or to have caused serious prejudice to the defendant.
In my opinion the length of the delay occasioned by the second plaintiffs is inordinate and inexcusable. Their explanation for the delay is weak, lacking in particulars and has failed to address in any measured way the defendant's claim of prejudice. Additionally, in so far as the second plaintiffs' claim for damages may be gleaned from the sparse material before the Court as being of the Jaensch v Coffey (1984) 155 CLR 549 type 1, the prospects of the defendant being able to gather evidence in his defence of such a claim so long after the events in question must be seen to be significantly reduced and productive of a great prejudice to him.
In all of the circumstances therefore the claims of the second plaintiffs will be dismissed for want of prosecution.