Romeo v Pennell
[2020] WADC 57
•6 MAY 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: ROMEO -v- PENNELL [2020] WADC 57
CORAM: DEPUTY REGISTRAR HEWITT
HEARD: 30 APRIL 2020
DELIVERED : 6 MAY 2020
FILE NO/S: CIVO 42 of 2020
BETWEEN: GIULIANA CARMELA ROMEO
Applicant
AND
CRAIG PENNELL
First Respondent
SCOTT WILLIAM WHITE
Second Respondent
NORTH METROPOLITAN HEALTH SERVICE
Third Respondent
Catchwords:
Practice and procedure - Application for extension of time to commence action for injuries caused by the alleged negligence of the defendants
Legislation:
Limitation Act 2005 (WA), s 39
Result:
Leave granted
Representation:
Counsel:
| Applicant | : | Ms F A Stanton |
| First Respondent | : | Mr E A Panetta |
| Second Respondent | : | Ms C J Thatcher SC |
| Third Respondent | : | Ms C J Thatcher SC |
Solicitors:
| Applicant | : | Hotchkin Hanly |
| First Respondent | : | Panetta Mcgrath Lawyers |
| Second Respondent | : | State Solicitor's Office |
| Third Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Nil
DEPUTY REGISTRAR HEWITT:
In this matter the applicant applies for orders pursuant to s 39 of the Limitation Act 2005 that she have leave to commence an action against the respondent's negligence arising out of the medical treatment and medical and nursing assistance provided to her in relation to a surgical procedure performed on her by the first respondent at King Edward Memorial Hospital on 24 June 2014.
Section 39(3) of the Limitation Act 2005 is in the following terms:
On an application a court may extend the time in which the action can be commenced. If the court is satisfied that, when the limitation period expired, a person to whom the cause of action accrues –
1. was not aware of the physical cause of the death or injury;
2. was aware of the physical cause of the death or injury but was not aware that the death or injury was attributable to the conduct of a person; or
3. was aware of the physical cause of the death or injury and that the death or injury was attributable to the conduct of a person but after reasonable enquiry, had been unable to establish that person's identity.
Of those options it seems to me that pars 3A and 3B are the relevant provisions namely that the plaintiff was unaware of the physical cause of her injury or was not aware that the injury was attributable to the conduct of a person.
With that introduction I now turn to the facts. In March 2012 the plaintiff gave birth to a pre-term child and had been diagnosed at that time as having an incompetent cervix.
On falling pregnant a second time the plaintiff consulted the first named respondent and received advice that there was a risk of between 15% and 30% that the child she was carrying would be born pre‑term and that a cervical cerclage procedure was the most affective option to manage that condition.
Accordingly, the plaintiff underwent the recommended procedure and was immediately beset by a great number of problems and difficulties including severe and persistent back pain. Those symptoms persisted to and after the delivery of her child and after the procedure undertaken by the first named respondent had been reversed. Ultimately a blockage of her left ureter was identified. On consultation with the first named respondent the applicant was advised that these complications were unlikely to have anything to do with the procedure that he had undertaken and were likely due to other causes of which several were nominated.
Ultimately the applicant engaged her lawyers to undertake enquiries on her behalf and obtain notes and materials from the treating physicians and King Edward Memorial Hospital where she was a patient. On obtaining those materials the occlusion of the ureter by the procedure undertaken by the first defendant was identified as the most likely cause of her problems. In the meantime the applicant's left kidney had, by reason of the obstruction which had been formed in the ureter atrophied and she had a nephrectomy in which the left kidney was removed. The case advanced by the plaintiff is based on a number of propositions. Firstly negligence in conducting the procedure. Secondly negligence in failing to properly heed and investigate her complaints of symptoms and thirdly negligently failing to identify the procedure itself as a known cause of symptoms of the kind she was experiencing.
None of these matters were or could have been known by the plaintiff until after the limitation period of commencing proceedings against those responsible had expired. There is of course some level of doubt as to exactly when that limitation period expired but at least in part it must have been beyond the three year limit prescribed for an action for personal injuries under the provisions of the limitation act.
On my review of the materials I am satisfied that the applicant has made out a proper case for the court to extend the time in which the action can be commenced and accordingly I am of the view that orders in terms of those sought in the originating summons should be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DH
Court Officer
6 MAY 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: ROMEO -v- PENNELL [2020] WADC 57 (S)
CORAM: DEPUTY REGISTRAR HEWITT
HEARD: 27 AUGUST 2020
DELIVERED : 10 SEPTEMBER 2020
FILE NO/S: CIVO 42 of 2020
BETWEEN: GIULIANA CARMELA ROMEO
Applicant
AND
CRAIG PENNELL
First Respondent
SCOTT WILLIAM WHITE
Second Respondent
NORTH METROPOLITAN HEALTH SERVICE
Third Respondent
Catchwords:
Practice and procedure - Costs of argument rehearing pursuant to s 39 of the Limitation Act 2005 (WA) to extend the limitation period - Turns on its own facts
Legislation:
Limitation Act 2005 (WA)
Workers' Compensation & Injury Management Act 1981 (WA)
Result:
The costs of the application to and including the decision on 6 May 2020 be in the cause between the applicant and the first respondent and there be no order as to those costs between the applicant and the second and third respondents
The costs of the application from 6 May 2020 be the first, second and third respondents in any event
Representation:
Counsel:
| Applicant | : | Ms F Stanton |
| First Respondent | : | Ms P Campbell |
| Second Respondent | : | MS C Thatcher SC |
| Third Respondent | : | MS C Thatcher SC |
Solicitors:
| Applicant | : | Hotckin Hanly |
| First Respondent | : | Panetta McGrath Lawyers |
| Second Respondent | : | State Solicitor's Office |
| Third Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Holt v Wynter [2000] NSWCA 143
Stanley v Layne Christensen Company [2006] WASCA 56
DEPUTY REGISTRAR HEWITT:
In this matter, the applicant applied by originating summons for leave under the provisions of s 39 of the Limitation Act 2005 (WA) (the Act) for an extension of time within which she might bring an action for personal injury against the respondents. Broadly speaking, the proposed action was based on an allegation of medical negligence.
On hearing the application I was satisfied that the discretion which is granted to the court under the provisions of s 39(2) and s 39(3) of the Act had been enlivened and accordingly, I granted the applicant the leave which she sought. More controversially, I also mentioned my view that I thought it appropriate that the orders contained in the originating summons were appropriate in the circumstances. Amongst the orders sought was an order that the costs of the originating summons be in the cause in any proceeding commenced by the applicant in accordance with a leave so granted.
None of the respondents opposed the granting of leave but each objects to an order that costs be in the cause and accordingly, the matter came back before me for argument on that issue. Essentially, the argument revolves around authorities which support the proposition that granting of the leave in the circumstances of this case should be regarded as an indulgence and that as a general rule, the cost of such proceedings should be awarded to the respondents. Various authorities have been quoted to support this proposition and of significant importance in those authorities is that of Stanley v Layne Christensen Company [2006] WASCA 56. In that case, Justice Wheeler, with whom the other members of the court were in agreement, had this to say:
Respondents' cross-appeal
51The respondents cross‑appeal against the order of the learned Master that the first, second, third and fourth respondents pay the costs of the application to amend the reamended statement of claim. It is submitted that the Master wrongly applied the 'normal rule' articulated in Briggs v Curtis Quick & Associates, unreported; SCt of WA; Library No 980141; 30 March 1998, which is that where a party is seeking the indulgence of the Court to amend its pleading, that party will be required to pay the costs of the application, including costs thrown away. Alternatively, it is submitted that Briggs should be overruled in part.
52The general rule is, and should remain, that where a party is seeking the indulgence of the Court, that party will be required to pay the costs of the application, including costs thrown away, and will not normally receive the costs of the application. However, it is also a normal rule that the Court will have regard to the extent to which it might be said that costs were unnecessarily incurred by a party, and will have regard to the reasonableness of the party's conduct in determining how costs should be awarded. In particular, where a contested application, even for an indulgence, is unnecessary because a party acting reasonably would have consented to appropriate orders, the party who has caused the costs to be unnecessarily incurred will not obtain its costs of such a proceeding merely because the application is for some indulgence. That is implicitly recognised in Briggs at 14, where Owen and Parker JJ appear to accept that an unreasonable withholding of consent might form an appropriate basis for a ruling on costs which departed from the 'normal rule' relating to indulgences. However, in that case their Honours considered that it could not be said that the other party was unreasonable to require that the proposed amendment be justified to the satisfaction of a judicial officer.
Significantly, none of the respondents to the application objected to granting leave to extend the time but as I understand it, the first respondent seeks its costs of the application whereas the second and third respondents are content for there to be no order as to costs. In those circumstances, it seems to me that there can be no suggestion that any of these respondent have behaved unreasonably.
Perhaps the first issue to be considered is whether in truth the extension of time should be regarded as an indulgence. My unhesitating view is that it should be so regarded. It is not a necessary procedure in the commencement of an action for damages for physical injury to obtain the leave of the court in the manner that has been required in this case. Were it to be a necessary step as, for instance, applied in the now repealed provisions of the Workers' Compensation & Injury Management Act 1981 (WA) I would have no problem in regarding the bringing of such an application as a necessary step. An action could not be commenced without the leave of the court and the process of obtaining leave should be regarded as a part of the cost of the action and made in the cause accordingly. As I have said, that is not the case here.
In my view, the bulk of the authorities suggest that if, as I find, the granting of leave was an indulgence, then ordinarily the respondent to such an application would be entitled to costs. In the case of the second and third respondents, they seek no costs but do seek the costs of the proceedings insofar as they were relevant to the present argument concerning costs. The first respondent seeks the costs of the application, including the argument concerning costs. Insofar as the second and third respondents are concerned, it seems to me a straight forward matter. They do not seek the costs of the application even though they have an argument that perhaps they might be entitled to them. The costs of the present proceeding in which the competing cost claims were discussed and resolved, in my view, should clearly be the second and third respondents. As to the first respondent, his situation is a little less clear. In the case of Holt v Wynter [2000] NSWCA 143 [121], Sheller JA said:
I set out hereunder the orders that I propose. In relation to costs ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. Although Judge Cantrill was satisfied that the evidence explained and excused the applicant from any responsibility for the delay, the fact remains that one or more of the solicitors she retained were responsible for the delay. The respondent was not. In the circumstances, particularly having in mind the question raised about the availability of medical records, I do not regard the respondent's decision to resist the application as unreasonable.
The difference between the first respondents position and that of the second and third respondents, stem from the impact which his advice that the procedure he carried out would not be the cause of the applicant's subsequent problems, a view which has now been exposed to controversy. The view which the first respondent expressed was a material fact in the failure of the applicant to commence proceedings within the time permitted. Should then a respondent be entitled to costs for undoing a mischief for which he is partly responsible. In my view, he should not be automatically entitled to the costs of the applicant's application for leave and those costs should be in the cause. The costs of the subsequent argument in relation to costs should be the first defendant's in any event.
I should finally mention that when I delivered my earlier decision granting leave, I inferred that it would be appropriate to make orders in terms of the originating summons. The orders sought in that summons contained an order that costs be in the cause. That was not a factor to which I gave any particular attention and it now seems to me on the basis of the materials which have been put before me and the arguments which I have heard, that I was wrong in that respect save insofar as the first respondent is concerned.
The orders therefore will be that the costs of the application leading up to and including the delivery of my first decision on 6 May 2020 be in the cause as between the applicant and the first respondent and there be no order as to those costs between the applicant and the second and third respondents and that thereafter, the costs of the application, be the respondents.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CM
Court Officer
7 SEPTEMBER 2020
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