Stewart v Hames
[2020] WASCA 9
•23 JANUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: STEWART -v- HAMES [2020] WASCA 9
CORAM: MURPHY JA
VAUGHAN JA
HEARD: 17 JANUARY 2020
DELIVERED : 17 JANUARY 2020
PUBLISHED : 23 JANUARY 2020
FILE NO/S: CACV 124 of 2019
BETWEEN: DENIS STEWART
Appellant
AND
KIM HAMES
First Respondent
GERALDINE CARLTON
Second Respondent
CHRISTINE CULLEN
Third Respondent
GEOFFREY WILLIAMSON
Fourth Respondent
GORDON SHYMKO
Fifth Respondent
BIJU THOMAS
Sixth Respondent
RAJ SEKHON
Seventh Respondent
DANIELA VECCHIO
Eighth Respondent
SHAROAN DELAHUNTY
Ninth Respondent
SOUTH METROPOLITAN HEALTH SERVICE
Tenth Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PRIOR DCJ
File Number : CIV 3131 of 2016
Catchwords:
Practice and procedure - Show cause - Appeal against interlocutory decision dismissing application to join additional defendants - Whether grounds of appeal have any reasonable prospects of success - Whether complaint of unfair hearing had any proper basis - Whether any arguable error disclosed in judge's reasoning - Appeal dismissed
Legislation:
Rules of the Supreme Court 1971 (WA), O 18 r 6(2)(b)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
| Fourth Respondent | : | No appearance |
| Fifth Respondent | : | No appearance |
| Sixth Respondent | : | No appearance |
| Seventh Respondent | : | No appearance |
| Eighth Respondent | : | No appearance |
| Ninth Respondent | : | No appearance |
| Tenth Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
| Fourth Respondent | : | No appearance |
| Fifth Respondent | : | No appearance |
| Sixth Respondent | : | No appearance |
| Seventh Respondent | : | No appearance |
| Eighth Respondent | : | No appearance |
| Ninth Respondent | : | No appearance |
| Tenth Respondent | : | No appearance |
Case(s) referred to in decision(s):
Manolakis v Carter [2008] FCAFC 183
Stewart v Hames [2019] WASCA 127
REASONS OF THE COURT:
Introduction
This matter came to a hearing on 17 January 2020 by way of a registrar's notice to attend dated 17 December 2019 for the appellant to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA).
The appeal is against an interlocutory decision of Prior DCJ in an action commenced by the appellant in 2016.
At the conclusion of the hearing on 17 January 2020, we dismissed the appeal and said that we would provide written reasons. These are our reasons.
Background
The general history of this matter is set out in an earlier decision of this court in Stewart v Hames.[1] In broad terms, the appellant commenced proceedings in the District Court against the respondents. The appellant was a former patient of a unit within Rockingham General Hospital. At all material times:
1.The first respondent was the Minister for Health for the State of Western Australia.
2.The second, third, fourth, fifth, sixth, seventh, eighth and ninth respondents were officers of Rockingham General Hospital or the Western Australian Department of Health.
3.The second and third respondents were administrative officers whose only involvement with the appellant had been in processing his request for documents pursuant to the Freedom of Information Act 1992 (WA).
4.The tenth respondent was established as a health service provider for Rockingham General Hospital pursuant to s 32(1)(b) of the Health Services Act 2016 (WA).
[1] Stewart v Hames [2019] WASCA 127 [4] - [5].
Between August 2016 and September 2018, the appellant filed a number of statements of claim, all of which were struck out in interlocutory decisions of the District Court.
On 2 August 2019, the appellant, by chamber summons, applied to join an additional 12 defendants to the action. The appellant filed an affidavit sworn 2 August 2019 which stated:[2]
The plaintiff [appellant] would like the Chamber of Hearings date before a judge on any Friday ASAP after 30/08/2019 to apply for leave to add the additional defendants that fraudulently concealed their names so they cannot be identified, however, after their lawyer … eventually surrendered a Pre‑discovery, the perpetrators have finally been identified to [be] able the articulation of the amended statement of claims correct defendants detriments added to the statement of claims particulars according to the court rules [sic].
[2] ts 362, 20/09/2019.
The appellant also filed on 30 August 2019 an unsworn document headed 'Application for court leave to add defendants to the Amended STATEMENT OF CLAIM'. In this document, the appellant identified 12 people or entities that he sought to join as defendants to his action. These were the 'Ministerial of Health', a lawyer acting for the respondents, various medical and nursing staff said to have been involved in or in relation to his treatment in hospital and a police officer. The document made various complaints about their conduct.
The application was heard by Prior DCJ on 6 September 2019. There was (as the appellant accepted at the hearing before this court) no statement of claim or minute of proposed statement of claim before the court in connection with the application.
On 6 September 2019, after hearing submissions from the appellant and counsel for the respondent (ie, the existing defendants), Prior DCJ dismissed the application to join the respondents' solicitor, and a female doctor called 'Davies'. His Honour reserved his decision in relation to the remaining additional 10 defendants and adjourned the matter to 20 September 2019 to deliver a reserved decision.[3]
[3] ts 362, 20/09/2019.
After the hearing on 6 September 2019, and prior to 20 September 2019, the appellant sent further materials to the court.[4]
[4] ts 357 - 359, 20/09/2019.
On 20 September 2019, the judge informed the appellant that he had received the additional materials and taken them into account.[5]
[5] ts 358 - 359, 362, 20/9/2019.
Also on 20 September 2019, before the judge delivered his decision, the appellant raised with the judge a concern that he had with a case that had been referred to by the respondent's counsel at the hearing on 6 September 2019. It was the Federal Court decision of Manolakis v Carter.[6] The appellant contended, in effect, that he was unfairly being compared with the litigant in that case and that the facts of the appellant's case were materially different from those in Manolakis.[7] The appellant said that it 'is appalling to compare me with that case [because it is like] comparing chalk and cheese'.[8] Prior DCJ said, in effect, that he understood that the Federal Court decision had been referred to him by counsel by way of a submission in relation to 'how to deal with multiple applications by unrepresented people', and that the case had not had any impact on his decision on the application.[9]
[6] Manolakis v Carter [2008] FCAFC 183.
[7] ts 359 - 360, 20/09/2019.
[8] ts 359, 20/09/2019.
[9] ts 360, 20/09/2019.
On 20 September 2019, Prior DCJ dismissed the application to join the other 10 defendants. His Honour's decision is referred to below.
Primary decision
Prior DCJ said that the appellant's affidavit failed to identify on what grounds the court should grant leave to join the proposed additional defendants.[10]
[10] ts 362, 20/09/2019.
Prior DCJ noted that an application by the appellant to join additional parties as defendants to an existing action is covered by O 18 r 6(2)(b) of the Rules of the Supreme Court 1971 (WA), and that the court has a discretion to refuse a joinder application. Order 18 r 6(2)(b) provides:
6. Misjoinder and nonjoinder of parties
(2)At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application -
…
(b)order that any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party,
but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised. (emphasis added)
Prior DCJ dismissed the application for the following reasons:[11]
In my view, the plaintiff's application should be refused because the plaintiff has not demonstrated that the joinder of the proposed defendants is necessary to ensure that all questions between the original parties are effectively and completely disposed of. I refer to Vandervell Trustees Ltd v White[1971] AC 912, at 936.
While it seems that most of the proposed defendants are persons for whose tortious acts and omissions the 10th defendant would be vicariously liable, without a statement of claim in the proceedings, or a minute of proposed statement of claim, pleading the causes of actions to be led against the proposed defendants, it's not possible to say that the joinder is necessary.
Order 18 [r] 6(2)(b) is not intended to [be] a scattergun approach to litigation. If the plaintiff wants to sue persons or entities other than those he is already suing in this action he should do so by separate writ. If there proves to be a good reason why the two actions should be tried together then an application for such an order can be made in due course.
It seems to me, however, that any claim the plaintiff has arising out of the period of time he was an inpatient at Rockingham General Hospital can be pleaded against the 10th defendant.
[11] ts 363, 20/09/19.
Grounds of appeal
The appellant's 14 grounds of appeal were to the following effect.
Ground 1 alleged that the hearing of 20 September 2019 was a 'sham hearing that is a farce' because the respondents' lawyers and RiskCover 'hijack[ed] the … hearing with defamation [and] slander'.
Ground 2 alleged that 'on the grounds of common law', where the appellant has amongst other things been falsely imprisoned and deliberately misdiagnosed, the appellant can sue the doctors and nurses that attended upon him independently of the hospital.
Ground 3 alleged that that the appellant 'will prove':
1.The respondents and their lawyers 'took affirmative action to conceal the names of doctors and nurses for the cause of action, remained silent and failed to disclose material facts despite a duty to do so'.
2.The appellant could not have discovered the defendants' names despite exercising 'reasonable care and diligence'.
3.There was a 'confidential or fiduciary relationship between the parties' such that the 'failure to speak where there is a duty to speak is the equivalent of some positive act or artifice planned to escape civil court proceedings'.
Ground 4 alleged that that the respondents 'have tricked and contrivance [sic] intended to exclude suspicion and prevent civil court proceedings'.
Grounds 5 and 6 were similar: they alleged that there is a duty of the respondent with knowledge of the facts, including the names of doctors and nurses, to disclose them and that the duty may render silence or failure to disclose known facts fraudulent (ground 5) and concealment consists of 'withholding information … to exclude suspicion or prevent inquiry' and that where there is 'a relationship involving trust and confidence between the parties … mere silence or nondisclosure will constitute concealment' (ground 6).
Ground 7 alleged that 'fraudulent concealment will be shown where the respondents' lawyers and RiskCover had knowledge of the wrong done and concealed such information from [the appellant]'.
Ground 8 alleged that '[u]nder insurance law [c]oncealment refers to RiskCover's intentional withholding [of] material facts that increase RiskCover's risk and that in good faith ought to be disclosed'.
Ground 9 alleged that a medical provider, doctor or nurse who falsifies medical records can be criminally prosecuted or exposed to punitive damages in a civil action.
Ground 10 alleged that '[f]alse documentation is the process of creating documents which record the respondents' fictitious events'.
Ground 11 alleged that the falsification of documents 'is a type of white collar crime'.
Ground 12 alleged that the respondents are 'subject to prison' if they have (1) wilfully caused or conspired to cause any person who does not have psychiatric disabilities to be committed to a hospital; (2) wilfully falsely certified that a person has psychiatric disabilities; or (3) wilfully falsely reported to a court that a person has psychiatric disabilities.
Ground 13 alleged that Prior DCJ's decision 'is made on [the basis of] an entirely different litigation [Manolakis v Carter [2008] FCAFC 183] that involved tax evasion and not false imprisonment etc, which is like comparing apple[s] with oranges or chalk and cheese'.
Ground 14 alleged that '[t]here is no court ruling in any [Western Australian court] that state[s] that you must sue the [employer] of the … perpetrators'.
Disposition
We dismissed the appeal for the following reasons.
Only two of the grounds, grounds 1 and 13, raised any criticism at all of the judge's decision. The remaining grounds raised no criticism of the judge's decision and accordingly those grounds had no reasonable prospect of succeeding.
As to ground 1, on a generous construction it contends that the appellant was not given a fair hearing. Having considered the transcript of the hearings before Prior DCJ on 6 and 20 September 2019, there is no proper basis for a complaint that the appellant was not given a fair hearing. He was. As to ground 13, it is plainly incorrect to contend, in effect, that the judge's decision was made on the basis that the factual claims in the litigation referred to in Manolakis had an equivalence with the claims asserted by the appellant in the primary proceedings. Accordingly, this ground also had no reasonable prospect of succeeding.
In any event, the primary decision was plainly correct and no arguable error is disclosed in the judge's reasoning. There was nothing before the judge to indicate that the presence of the proposed additional defendants was 'necessary' within the meaning of O 18 r 6(2)(b) of the Rules of the Supreme Court 1971 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy23 JANUARY 2020
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