Smith and Smith v Harvey-Sutton

[1998] QCA 232

IN THE COURT OF APPEAL	[1998] QCA 232
SUPREME COURT OF QUEENSLAND

Appeal No. 6188 of 1997

Brisbane

[Smith & Anor v. Harvey-Sutton]

BETWEEN:

DOUGLAS FRANK SMITH and
(First Plaintiff)

JOYCELYN BERYL SMITH

(Second Plaintiff) Appellants

AND:

DAVID HARVEY-SUTTON

(Second Defendant) Respondent

INLAND MEDICAL SERVICE LIMITED

(First Defendant)

ALISTAIR BEGG
(Third Defendant)
ALBERT HOWARD SADDLER

(Fourth Defendant)

McPherson J.A.
Thomas J.A.

Lee J.

Judgment delivered 21 August 1998

Judgment of the Court

APPEAL ALLOWED WITH COSTS. ORDER BELOW SET ASIDE AND IN LIEU
ORDER THE SECOND DEFENDANT’S SUMMONS BE DISMISSED WITH COSTS.

application to strike out brought close to trial date being sought - delay of 16 years - deponent not produced for cross-examination - no application made under O.41 r.27 - provision of satisfactory explanation for delay not a condition precedent to the continued survival of the action - whether delay caused material prejudice to defendant and whether fair trial possible.

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR
541
Dempsey v Dorber [1990] 1 Qd R 418
Hullock v Roderick (CA 129 of 1992, 19 November 1992)

Witten v Lombard Australia Ltd (1968) 88 WN Part 1 NSW 405

Counsel:	Mr J Clifford QC, with him Mr J Kimmins for the appellants Mr S C Williams QC, with him Mr J A McDougall for the respondent
Solicitors:	Tunns Lawyers for the appellants Flower & Hart for the respondent
Hearing Date:	22 May 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6188 of 1997

Brisbane

Before McPherson J.A.
Thomas J.A.
Lee J.

[Smith & Anor v. Harvey-Sutton]

BETWEEN:

DOUGLAS FRANK SMITH and
(First Plaintiff)

JOYCELYN BERYL SMITH

(Second Plaintiff) Appellants

AND:

DAVID HARVEY-SUTTON

(Second Defendant) Respondent

INLAND MEDICAL SERVICE LIMITED

(First Defendant)

ALISTAIR BEGG
(Third Defendant)
ALBERT HOWARD SADDLER

(Fourth Defendant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21 August 1998

The present action, which is based on medical negligence alleged to have occurred in June

1978, was commenced on 1 May 1981. There are four defendants–

(a)         Inland Medical Service Limited, a company limited by guarantee which at

material times provided medical services in Mary Kathleen by means of

honorary services from various medical practitioners;

(b)        Dr Harvey-Sutton;

(c)         Dr Alistair Begg;

(d)        Dr Saddler.

Attempts to find Dr Begg have failed. Further, there is reason to doubt the utility of proceeding against

the corporate defendant, as it is said to have been de-registered some time before July 1989.

In June 1997 Dr Harvey-Sutton brought an application to have the action against him dismissed

for want of prosecution. A Chamber Judge granted that application on 25 June 1997. The present

appeal is the plaintiffs’ appeal against that order. The dismissal of the plaintiffs’ action against Dr

Harvey-Sutton of course does not impair their rights against the other defendants, but it would seem that

the major allegations in relation to negligent treatment are those against Dr Harvey-Sutton.

For convenience we shall refer to the case as that of the first plaintiff, as the second plaintiff’s

claim is only a minor addendum to the principal action.

The case which the plaintiff wishes to bring may be shortly summarised in the following way.

On 20 June 1978, when he was fourteen years old, he obtained preliminary treatment for a grossly

dislocated left elbow at the casualty section of the Mount Isa Base Hospital following a football

accident. He was given an intramuscular dose of pethidine and the dislocation was reduced. He was

discharged the same evening with a collar and cuff sling. On the following day he attended the Inland

Medical Services (IMS) premises at Mary Kathleen and saw Dr Harvey-Sutton who applied a plaster

of paris cast. The plaintiff returned home but during that night his left hand became swollen, cold and

bluish. On the following day (22 June) he returned to the IMS premises and was seen by Dr Saddler to whom he described his symptoms. However that doctor merely advised that the plaster should be

left on. The next day he returned to the IMS premises where he was examined by Dr Begg. At this

stage his arm was discoloured and swollen and there were blisters above the top of the plaster. Dr

Begg split the plaster and administered an injection to the plaintiff. On the following day, 24 June, the

arm became malodorous and he returned to the IMS premises where he saw a nursing sister who gave

him an injection. He then travelled to Mount Isa where he saw Dr Harvey-Sutton and requested him

to remove the plaster. Dr Harvey-Sutton refused to do so, informing the plaintiff that he should not

worry about the seepage. However he administered antibiotic and pain-killing injections.

Two days later, on 26 June, the plaintiff returned to the IMS premises and was again seen by

Dr Harvey-Sutton. He complained of gross swelling, discolouration, discharge and pain and requested

removal of the plaster. The doctor again refused to do so. On the following day, 27 June, the plaintiff

again saw Dr Harvey-Sutton at the IMS premises. This time the doctor agreed to his request to remove

the plaster. Upon removal there were large black patches between the elbow and shoulder with very

little skin left on the arm. He was admitted to Mount Isa Hospital and was cared for by Dr Harvey-

Sutton privately until transfer to the public surgical ward on 5 July 1978. It was noted that there was

a large ulcer on the left arm above the left elbow and an area of full thickness necrosis approximately

5 x 4 centimetres, and restricted movements. Further procedures were necessary including debridement

and several manipulations under general anaesthetic in August, September and October.

In the result the joint has been adversely affected and there is evidence that there is new bone

formation indicating a healed septic arthritis of the elbow with secondary degenerative changes. There

is evidence suggesting that he has sustained approximately thirty per cent disability to his left upper limb.

Shortly stated, the plaintiff’s case is that the plaster was fixed too tightly in the first place, and that the plaster was inappropriately retained in position after the arm continued to swell. There is evidence

available from an orthopaedic specialist (Dr Graham Anderson) indicating the extreme care that is

necessary when there is a persistence of severe pain following plaster splintage that encircles a limb.

CONDUCT OF THE ACTION

The plaintiff’s solicitors encountered numerous problems in getting this action ready for trial.

There is little purpose in recounting them in detail. It may be mentioned however that problems arose

in locating Drs Begg and Saddler. Initially another Dr Begg (Gary William Begg) was named and

served and that person filed a defence appropriately denying all knowledge. The putative defendant Dr

Alistair Begg cannot be found or served. Dr Saddler was served, but his defence admits nothing.

It is worth noting that at no stage in this protracted exercise has the plaintiff needed the

indulgence of the court under O.90 r.9(2). On some occasions a year elapsed, necessitating the giving

of a notice of intention to proceed under O.90 r.9(1) but on no occasion did three years elapse without

a fresh proceeding being taken. The application to dismiss the action was simply one by a defendant

under the inherent jurisdiction of the court. It was made at a time when it would seem that the plaintiff

was at last very close to being able to set the matter down for hearing in Mount Isa.

Some of the more important steps in the history of the action, at least so far as concerns the

plaintiff and Dr Harvey-Sutton are set out below. This is not meant to portray the history of the

proceedings, as they were beset by many diversions including difficulties concerning medical

examinations and reports at the request of the defendants, attempts to locate the third and fourth

defendants, difficulty in getting any transcription or translation of the few medical cards and notes that

were discovered, and other interlocutory matters.

May 1982	Statement of Claim delivered
July 1982	Defences delivered
August 1982	Dr Harvey-Sutton’s affidavit of documents filed
November 1983	Action stayed pending medical examination of plaintiff
March 1984	Plaintiff examined by Dr Maguire
July 1986	Plaintiff’s affidavit of documents filed
May 1989	Supplementary affidavit of documents by plaintiff served
June 1992	Compulsory conference called by plaintiff; defendant’s solicitors did not attend
August 1992	Interrogatories by plaintiff for examination of Dr Harvey-Sutton delivered
April 1993	Independent medical examination by Dr Milroy
September 1993	Dr Harvey-Sutton’s answers to interrogatories delivered
September 1993	Dr Harvey-Sutton’s interrogatories for examination of plaintiff (relating to quantum) served
September 1996	Plaintiff’s statement of loss and damage (under O.39 r.29A) served
16 October 1996	Dr Harvey-Sutton’s solicitors made a request for copies of reports and statements mentioned in the plaintiff’s statement of loss and damage. Answers to the unanswered interrogatories were requested within twenty-one days, reserving the right to bring an application for appropriate orders if not so delivered. The letter concluded “If further unnecessary delay occurs in the prosecution of the action we shall take instructions to apply for a permanent stay on the basis of the prejudice to our client”.
27 May 1997	Promise by plaintiff’s solicitors to provide answers within 14 days
13 June 1997	Present summons filed and served by Dr Harvey-Sutton’s solicitors
19 June 1997	Plaintiff’s answers to defendant’s interrogatories delivered
25 June 1997	Plaintiff’s action against Dr Harvey-Sutton dismissed

While the extraordinary delay in this case has been “explained” in the sense that substantial

material has been filed showing the steps taken between the various parties in the action, counsel for the

appellant plaintiff (Mr Clifford QC) conceded that the explanation is not very clear. It is difficult to cavil

with the learned Chamber Judge’s description of the delay as “inordinate and inexcusable”. At the same

time it must be noted that proceedings are not unilateral and that very long delays are almost invariably

the result of inaction on both sides. It is pointless in this case to attempt to identify fault as between the

solicitors, barristers and the plaintiff himself, beyond mentioning that the plaintiff’s own affidavit reveals

personal disorganisation and procrastination in responding to messages and requests from his solicitors

designed to obtain his answers to the interrogatories.

There is in this case the unusual feature that the defendant’s application to strike out was not

brought until the plaintiff was on the brink of seeking a date for trial. As mentioned above the plaintiff

did not require any indulgence from the court in order to achieve this, and the defendant’s application

would seem to be in consequence of treating as a “last straw” the plaintiff’s failure up to that time to

produce answers to the defendant’s interrogatories. The defendant’s solicitors had sent at least two

warning letters on this subject before bringing the application to dismiss the action. Even so, the

circumstances existing at the time the application was heard were that these answers had been delivered,

and extensive information concerning quantum had already been obtained pursuant to the plaintiff’s

statement of loss and damage and the supporting documents mentioned in that statement. The matter

was in all respects ready for trial other than the filing of a statement of expert and economic evidence

by the solicitors for the defendants. It was the belief of the plaintiff’s solicitor that the matter could proceed to hearing in Mount Isa in the next sittings of the Supreme Court. These factors should be seen

as operating against a dismissal of the action.

In some cases the absence of an adequate explanation of delay may be a relatively influential

factor in the court’s assessment of an application to dismiss. In the present case there is a picture of

extraordinarily slow but steady exchange of relevant information, with the solicitors for both relevant

parties participating in the process right up to the brink of readiness for trial. On analysis it seems to us

that the procedural history is not a particularly persuasive factor either way in the resolution of the

present matter. The most important issue would seem to be whether the delay has caused material

prejudice to Dr Harvey-Sutton and whether a fair trial could now be had.[1]

GROUNDS

[1]             Bruce Pie & Sons Pty Ltd v Mainwaring [1987] 1 Qd R 304.

The appeal was argued by counsel under four main points.

1.          refusal by the learned Chamber Judge to permit counsel for the plaintiff to cross-examine Dr Harvey-Sutton;

2.          erroneous finding that Dr Harvey-Sutton had “no independent recollection” of the consultations;

3.          no sufficient prejudice shown to justify the order;

4.          the defendant’s solicitor’s letter of 16 October 1996 should be taken as an intimation of agreement that the action should proceed.

During argument Mr Clifford conceded that it was difficult to show that the plaintiff incurred any

detriment in reliance upon that letter and we do not understand point 4 to have been pressed. It will be

appropriate then to deal with the first three points.
Point 1 - Refusal to permit cross-examination of Dr Harvey-Sutton

An affidavit of Dr Harvey-Sutton was filed. It stated that his recollection of the consultations

which he had with the plaintiff “is much more hazy than it was when this action commenced in 1981".

He continued–

“ Whilst I am confident that my treatment of the First Plaintiff was reasonable, I consider that I will be severely prejudiced should the matter be allowed to proceed to a trial after the expiration of almost 20 years because my memory is much more hazy and necessary witnesses cannot be located or, if able to be located, are likely to have much poorer memories of the events in question.”

As is common now in chamber proceedings, no shorthand writers were in attendance and no transcript

of proceedings is available. There is a conflict in the evidence provided by various deponents as to what

actually happened and in particular whether any formal ruling or determination was made by the learned

Chamber Judge on the question of cross-examination of the deponent. It is clear that counsel for the

plaintiff wished to cross-examine Dr Harvey-Sutton on his affidavit and that this requirement had been

communicated to the defendant’s solicitors some days before the matter was heard. Upon being

advised that he was required for cross-examination, his solicitors responded that he would not be able

to attend court on the return day. The plaintiff’s solicitors thereupon indicated that they would be

agreeable that he be cross-examined by telephone. This seems to have been the expectation of those

representing the respective parties up to the time when the matter was to come on. However a practical

difficulty emerged in that Dr Harvey-Sutton had arranged to leave Mount Isa to go to Cloncurry at

approximately noon on the day of the hearing. It followed that he was available for cross-examination

by telephone only until noon. This was intimated to counsel for the plaintiff shortly after the callover of

chamber matters. Unfortunately the matter was not then reached until some time after noon. During

the proceedings counsel for the plaintiff applied “to cross-examine Dr Harvey-Sutton” upon which the doctor’s counsel advised the Judge that his client was not available as he was on his way to Cloncurry.

Counsel for the plaintiff said that notice had been given requiring him for cross-examination. What

ensued is the subject of differing interpretations by the parties’ solicitors.

It would seem that neither counsel adverted with any precision to the nature of the application

that was being made. Order 41 r.27 relevantly provides–

“ 27 (1) Any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing, requiring the production of the deponent for cross- examination at the trial.

(2) Such notice may be served at any time before the expiration of 7 days next after the expiration of the time allowed for filing affidavits in reply, or within such further period as the Court or a Judge may allow.

(3) If any such deponent is not produced accordingly, his or her affidavit shall not

be used as evidence, unless by the special leave of the Court or a Judge.

. . .”

It would have been more appropriate had the plaintiff’s counsel applied for a ruling that the defendant

not be permitted to read the affidavit unless the deponent was produced for cross-examination. That

no doubt would have provoked an application by counsel for Dr Harvey-Sutton to seek special leave

of the Judge under sub-rule (3) for it to be read notwithstanding his non-attendance. The difficulty of

applying this rule is enhanced by the fact that it relates to situations of a party “desiring” to cross-

examine a deponent, and of course there is no general right to cross-examine a deponent in chamber

matters.[2] Presumably in order to get over the initial hurdle of showing that this was an appropriate case

[2]             Nayeiob Queensland Pty Ltd v Soric [1974] Qd R 161; Cf. Re Blue Pines Pty Ltd [1988] 1 Qd R 13.

for cross-examination, counsel for the plaintiff indicated that he wished to discover precisely what Dr

Harvey-Sutton recalled about consultations with the plaintiff and the state of his knowledge at the date of issue of the writ. An affidavit filed on behalf of the plaintiff alleges that his Honour then stated that

the memory of the doctor would naturally be worse now than it would have been previously due to the

passage of time, and that it was “not necessary to have the [doctor] called for cross-examination”.

However an affidavit filed on behalf of the doctor asserts that the Judge was not asked to make a ruling

on the matter of the cross-examination of the doctor and that counsel for the plaintiff did not press “the

application for cross-examination”. In these circumstances the Court called upon the learned Chamber

Judge for a report in relation to the proceedings.

The learned Chamber Judge’s report confirms that he explored with counsel the question of the

utility of any cross-examination, but he considers it unlikely that he would have used the words “not

necessary” in relation to it. His Honour’s reconstruction of the matter, so far as it has been possible to

respond to our request is encapsulated in the following statements–

“ It may well be that I would have discouraged the prospect of cross-examination, but I cannot now recall specifically disallowing it. Had I been asked to rule on an application to cross examine, I would have done so, and it has been my practice to note that point in reasons for judgment - if I have thought it may subsequently assume significance.

I should add that there is no note in my Judge’s Notebook dealing with the point.”

It would seem that counsel for the plaintiff took the matter no further. In particular he did not press for

a ruling that the defendant not be allowed to read the affidavit without cross-examination; and there was

no application for adjournment to a date when the doctor would be available on the telephone. Whilst

one can understand counsel’s difficulty in the situation as it evolved, it must be remembered that counsel

should insist upon a ruling if it is intended to suggest in due course that a procedure was denied to his

client, or upon a ruling if it is intended to object in due course to the reception of evidence.

It seems to us that in the present case counsel, for reasons which no doubt seemed good at the
time, simply desisted from pressing the point further, and that nothing more occurred than preliminary

argument between bench and bar. In particular no ruling was insisted upon or given.

We therefore consider that this point fails.

Point 2 - Erroneous finding that Dr Harvey-Sutton had no independent recollection

His Honour’s reasons contain the following statement–

“ I should perhaps have said earlier that the second defendant who is now almost seventy-nine years old, has no independent recollection of the consultations, as I see the matter, although he does have copies of ordinarily cryptic doctor’s notes in relation to them. The larger part of the second defendant’s assertion about prejudice rested in this . . .”

It was not correct to suggest that Dr Harvey-Sutton has no independent recollection of the

consultations. Indeed the burden of his claim of prejudice was that he had a recollection of the

consultations, but that it is now “much more hazy” than when the action commenced. This is not a case

where all the doctor can say is limited to his translation of existing notes and possibly an interpretation

of them based upon usual practice. In addition to the notes, copies of which are still available, a defence

was delivered (which can only have been based upon instructions given by the doctor to his solicitors

in 1982, interpreting the notes in the light of his then memory) in which the plaintiff’s allegations are dealt

with responsively and in greater than usual detail. Of further relevance is the fact that quite detailed

answers to interrogatories were prepared and sworn to by Dr Harvey-Sutton in 1993 when he was

aged seventy-four. Of particular relevance are his answers numbers 20, 31, 32 and 35. These relate

to the all-important attendances of Dr Harvey-Sutton upon the plaintiff on 21 June, 24 June, 26 June

and 27 June 1978. The following are examples of such answers. With respect to 21 June 1978 he

recalls that

“ prior to the application of the plaster cast to the plaintiff’s left arm, the plaintiff’s left arm was significantly swollen and bruised. It remained bruised and swollen for some days after the application of the cast. I do not recall the first plaintiff complaining to me after the application of the cast that his left hand felt unnaturally cold. Had he done so it was my practice to split the plaster with a vibratory plaster saw and separate the split edges 2-3mm.”

With respect to 24 June he states his belief that the plaintiff did visit him at Mount Isa on that occasion,

and continues

“ I am not sure whether there was seepage of liquid through the plaster on the first plaintiff’s left upper arm. If there was significant seepage I would have made a note of this. As I made no note any seepage would have been minimal and in keeping with the plaintiff’s injury.”

He further states

“ I cannot recall whether the second plaintiff [i.e. the plaintiff’s mother] requested me to

remove the plaster.”

and

“ I cannot recall whether I refused to remove the plaster.”

and

“ I believe that I did give the first plaintiff an antibiotic injection and a pain-killing injection

on that date.”

With respect to 26 June he states

“ I believe on that date the first plaintiff’s left arm was swollen and discoloured, I cannot recall whether the arm was discharging a malodorous liquid. It was my invariable practice to record the discharge of malodorous liquid from a cast such as the one in question and my notes make no mention of it. I do not recall any such discharge.”

He continues that he believes that the plaintiff was complaining of pain but cannot recall whether the

plaintiff’s mother requested him to remove the cast, or whether he refused to remove it.

With respect to 27 June he states that the plaintiff’s arm was badly swollen and discoloured,

that it was discharging a malodorous liquid, that the plaintiff was complaining of pain and that his mother

requested him to remove the plaster cast. He states that he did remove it and that upon its removal he observed that the left arm had some small black patches between the elbow and the shoulder, that there

was some skin left, and that a significant part of the arm between elbow and shoulder was raw but not

gangrenous. He further states that upon removal of the plaster cast a small part of the tissues of the left

arm were removed, blisters drained and Phisohex and antibiotic powder applied to the arm with vas

gauze dressing.

On the present state of the evidence it is not known whether the doctor’s memory when he

prepared his answers to interrogatories with the aid of his notes was much worse than it was at the time

of commencement of the action. The only evidence on the question of fading memory is his assertion

in his affidavit of June 1997 that “it is now much more hazy than it was at the time of commencement

of the action”. However no particularity or examples are given, and his affidavit probably does not take

the matter much further than a judge would infer to be the case from mere lapse of time.

In this context the erroneous view of the learned Chamber Judge that Dr Harvey-Sutton had

no independent recollection at all of the consultations is potentially quite significant. It relates to the

central issue in the determination, and is identified as one of the circumstances leading to his Honour’s

conclusion that “those circumstances, together with the inevitable dimming of memories over those many

years, combined to constitute a powerful case of prejudice in this situation.”

This then is a valid ground of complaint. It will be further considered later when addressing the

question whether his Honour’s discretion miscarried.

Point 3 - No sufficient prejudice shown to justify the order

The factual dispute is relatively narrow, and in the context of medical negligence cases the issues

are relatively straight-forward. Was the plaster applied too tightly, and was it left on when it should

have been obvious that it ought to be removed? Those primary issues may lead to questions such as what complaints were made of pain, and when did the additional symptoms manifest themselves and

were they shown to the doctor. Once the symptoms and the manner in which they were revealed (or

not revealed) to the doctor are found, there is no suggestion of any complex medical issue concerning

the fact that the plaster should have been removed. The available medical evidence includes the

following statement of Dr Graham Anderson:

“ I think it should be obvious, but never-the-less needs saying, that standard medical practice demands that in cases of injury where plaster splintage that encircles a limb has been used, persistence of severe pain must be followed by the immediate splitting of the plaster. If the pain continues unabated the plaster must be removed.

Splitting and removal of the plaster is even more urgent - a matter of hours rather than days - if there is any evidence of, including a suspicion of acute local pressure or vascular embarrassment.”

No complex conversations are alleged such as might occur when issues such as “informed consent” are

raised, or such as commonly arise in cases involving commercial dealings. Adequate evidence is

available of the condition for which the plaintiff came to the doctor to be treated and the fact that by the

time the plaster was removed the skin had rotted and serious necrosis had ensued. These facts are

contained in Mount Isa Hospital records.

Mr Clifford QC for the plaintiff/appellant submitted that the disputed facts are few and are not

of a complex nature, and that the issue of prejudice from fading memories does not loom as large in such

a case. On the other hand Mr S.C. Williams QC for Dr Harvey-Sutton relied upon the following

passage in his Honour’s reasons–

“ I appreciate that statements taken, certain admissions on proceedings, the second defendant’s consultation notes and aspects of the answers to interrogatories would help to reduce areas in which resort to unaided recollection would be important, but as my own experience suggests, in a medical negligence case like this there will be necessarily be such areas, and I am satisfied that in this particular case there are. Matters of detail can become very significant in these cases and parties may not even realise that relevant detail has been overlooked.”

Mr Williams submitted that the areas where unaided recollection would be important were the

conversations between the parties, and the time when the plaintiff complained significantly of pain,

oedema and the discharge of malodorous fluid.

DISCUSSION

The principles applicable in applications of this kind have been stated in many cases, sometimes

with varying emphasis upon one or more of the factors that tend to be relevant in the determination of

such cases.[3] Without attempting a comprehensive statement of principle, it may be taken that while the

[3]             See for example Wilson v Bynon [1984] 2 Qd R 83; Dempsey v Dorber [1990] 1 Qd R 418.

history of the legal proceedings and any explanation concerning the delay are always relevant, the

provision of a satisfactory explanation for the delay is not a condition precedent to the continued survival

of the action. Usually the most important factor in the exercise of the discretion is the degree of

prejudice that the defendant is likely to suffer as a result of the delay. However individual factors cannot

be satisfactorily weighed in isolation, and it is always necessary to identify all relevant factors affecting

the particular case, and then determine on balance whether there is good reason for making the order.[4]

[4]             Dempsey v Dorber above; Hullock v Roderick CA 129 of 1992, 19 November 1992.

In a recent decision of the High Court[5], concerning an extension of time under s.31 of the

[5]             Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

Limitation of Actions Act 1974, recognition was given to the subtle ways in which a fair trial may be

prejudiced by the passage of time. As McHugh J remarked, “Sometimes, perhaps more often than we

realise, the deterioration in quality is not recognisable even by the parties” and “What has been forgotten can rarely be shown.” That decision, although concerned primarily with factual assessment and the

application of a discretion, is now frequently referred to in applications of the present kind, applications

under O.90 r.9, and indeed in any case where a party wishes to urge that it cannot now have a fair trial

because too much time has passed. It is our impression that since that decision courts are more prone

to uphold a submission of prejudice on this ground. But there must be a question of degree in every

case, and, as Walsh JA observed[6]

[6]             In Witten v Lombard Australia Ltd (1968) 88 WN Part 1 NSW 405, 412.

“ Care should be taken to ensure that a discretionary power is not trammelled by set rules, by means of which one conclusion is to be automatically reached, regardless of other factors in the case which may point to the opposite conclusion.”

In the present case the factual misconception of the learned Judge (see point 2 above) suggests

at least some overestimation of the degree of likely prejudice. Whilst there must be some inevitable

disadvantage, possibly to both parties, by reason of such delay, it does not follow that the relevant

issues could not be fairly tried. The facts and issues appear to be relatively simple, and there are firm

anchor points including the medical records and the proven condition of the plaintiff upon his admission

to hospital, both before and after his attendances upon Dr Harvey-Sutton.

The relative simplicity of the issues to be litigated was regarded as an influential factor in

Hullock v Roderick above in which this Court allowed an appeal against a refusal to renew a writ after

ten years. Such an issue is regarded as analogous to those which arise under applications under O.90

r.9 and applications to dismiss.[7] Quite apart from authority it will usually be the case that the more

[7]             Hullock v Roderick above; Jones v Jebras and Hill [1968] Qd R 13, 23 per Gibbs J.

complex the issues and unavailability of contemporaneous documents and relatively early statements of

evidence, the greater the prejudice from delay. Conversely the simpler the issue and the greater the

availability of contemporary material and relatively fresh statements, the less the perceived prejudice.

In our view the overall interests of justice would be better served by allowing this case to be

determined at trial than by procedural extinction at the last moment.

We have hesitated in reaching this conclusion and are conscious that this is an appeal from what

is called the exercise of a discretion, and of the need to apply the principles recognised in House v The

King (1936) 55 CLR at 504-505 and Gronow v Gronow (1979) 144 CLR 513. The learned primary

Judge’s misconception concerning the extent of lost recollection by Dr Harvey-Sutton concerns a matter

central to the exercise and makes it necessary to review the determination looking at the matter as a

whole. Such a review must include the circumstances that the plaintiff was not in default of any of the

rules of court by that time, that the only party in default by the time the order was made was the

defendant, that the matter was ready for trial, and the nature of the issues in dispute. We do not think

that the prejudice which must necessarily be recognised in this case as flowing from such a long delay
was sufficient to justify dismissal of the action.

The appeal should be allowed with costs. The order below should be set aside and replaced

with an order dismissing the defendant’s summons with costs.