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Romeo v Pennell

Romeo v Pennell

Case [2021] WADC 50 26 May 2021

Civil Litigation & Procedure

Administrative Law

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   ROMEO -v- PENNELL [2021] WADC 50
CORAM:   RUSSELL DCJ
HEARD:   24 FEBRUARY 2021
DELIVERED          :   26 MAY 2021
FILE NO/S:   CIVO 42 of 2020
BETWEEN:   GIULIANA CARMELA ROMEO
Applicant
AND
CRAIG PENNELL
First Respondent

Catchwords:

Appeal from registrar - Costs - Costs of application for leave to issue proceedings under s 39(3) Limitation Act 2005 (WA) - Whether application for leave to issue proceeding out of time under s 39(3) Limitation Act 2005 an indulgence

Legislation:

District Court Rules 2005 (WA), r 15(5), r 64
Limitation Act 2005 (WA), s 39(3)
Rules of the Supreme Court 1971 (WA), O 66 r 1(1)

Result:

Appeal allowed

Respondent to pay appellant's costs of costs application and of appeal

Order in respect of costs of application under s 39(3) Limitation Act 2005 not disturbed

Representation:

Counsel:

Applicant	:	Ms F A Stanton
First Respondent	:	Ms P Campbell

Solicitors:

Applicant	:	John Hanly Legal
First Respondent	:	Panetta McGrath Lawyers

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

Barr v Farrell [2013] WASCA 211 (S)
Briggs v Curtis Quick & Associates (Unreported, WASC, Library No 980141, 30 March 1998)
Briggs v Glentham Pty Ltd (1992) 8 WAR 339
Commonwealth of Australia v Smith [2005] NSWCA 478
Dibley v Sydney West Area Health Service [2009] NSWSC 856
Galea v Commonwealth of Australia (No 2) [2008] NSWSC 260
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128
Hughes v St Barbara Ltd [2011] WASCA 234 (S)
Hunt v Knabe (No 2) (1992) 8 WAR 96
Kamath v Allight Sykes, Landsdale [2019] WADC 98
Kezic v St John of God Health Care Inc [2015] WASCA 220
Liebherr-Australia Pty Ltd v Bloomfield [2006] WASCA 128
Lymbery v The Commonwealth of Australia [2005] NSWSC 523
Myra Pty Ltd v Thompson [2011] WASC 230 (S)
Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164
Oshlack v Richmond River Council (1998) 193 CLR 72
Romeo v Pennell [2020] WADC 57
Romeo v Pennell [2020] WADC 57 (S)
Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd (No 4) [2018] FCA 74
Spark v Rogers [No 3] [2017] WADC 4
Stanley v Layne Christensen Co [2006] WASCA 56
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96

RUSSELL DCJ:

Introduction

This is an appeal from a costs decision of Deputy Registrar Hewitt made on 10 September 2020. The relevant background is as follows.
By originating summons filed on 19 March 2020, the applicant, Guiliana Carmela Romeo, sought leave pursuant to s 39(3) of the Limitation Act 2005 (WA) to commence proceedings after expiry of the limitation period against the respondents, Dr Craig Pennell, Dr Scott White and the North Metropolitan Health Service (Application).
On 6 May 2020, Deputy Registrar Hewitt made orders granting Mrs Romeo leave to commence proceedings against the respondents.[1]
[1] Romeo v Pennell [2020] WADC 57.
Mrs Romeo has subsequently issued proceedings against 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 Romeo v Pennell

Details

AGLC: Romeo v Pennell [2021] WADC 50
Case: [2021] WADC 50
Decision Date

CaseChat Overview and Summary

In the case of Romeo v Pennell, the District Court of Western Australia heard an appeal from a costs decision made by Deputy Registrar Hewitt. The applicant, Guiliana Carmela Romeo, sought leave to commence proceedings after the expiry of the limitation period against Dr Craig Pennell, Dr Scott White, and the North Metropolitan Health Service, pursuant to section 39(3) of the Limitation Act 2005 (WA). The court granted leave, and the applicant subsequently issued proceedings against the respondents, claiming damages for negligence in relation to medical treatment and care provided during a surgical procedure performed by Dr Pennell.

The central issue in the appeal was the appropriate order to be made in relation to the costs of the costs application. The appeal was by way of a new hearing of the matter that was before the Deputy Registrar, and the court was to hear and determine for the first time the matter of costs in relation to the costs application. The court found that there was no need to determine whether there was any error on the part of the Deputy Registrar and that the appeal would be decided based on the appropriate order to be made in relation to the costs of the costs application.

The court concluded that the order made by Deputy Registrar Hewitt that the costs of the Application be costs in the cause of the ultimate proceedings should stand and that the order that Mrs Romeo pay Dr Pennell's costs of the costs application should be set aside. The court found that the costs of the costs application should follow the event and be borne by Dr Pennell, as he was unsuccessful in opposing the appeal. The court also noted that the costs of the appeal should follow the event and that Dr Pennell should pay Mrs Romeo's costs of the appeal.

Orders