TLJ v Dr S Lai
[2017] WADC 119
•31 AUGUST 2017
TLJ -v- DR S LAI [2017] WADC 119
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 119 | |
| Case No: | CIV:3490/2014 | 25 AUGUST 2017 | |
| Coram: | TROY DCJ | 31/08/17 | |
| PERTH | |||
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Appellant's application for leave to extend the time within which to appeal from a decision of a registrar refused | ||
| PDF Version |
| Parties: | TLJ DR S LAI DR P J BEATON |
Catchwords: | Extension of time to appeal Summary judgment Delay Prospects of success |
Legislation: | District Court Rules 2005 r 15 Rules of the Supreme Court 1971 O 16 r 1(1) Surveillance Devices Act 1998 (WA) |
Case References: | Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184 Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332 Barrick Gold of Australia Ltd v F L Smidth Inc [2007] WASC 186 Boomalli Ltd v Hake [1985] WAR 7 City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 Eng Mee Yong v Letchumanan [1980] AC 331 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Gallo v Dawson [1990] HCA 30 ; (1990) 64 ALJR 458 Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 Girando v Girando (1997) 18 WAR 450 Glew v Frank Jasper Pty Ltd [2010] WASCA 87 Ibrahim v Honourable Justice Carolyn Martin [2012] WASC 338 Jackamarra v Krakouer (1998) 195 CLR 516 Johnson v Hallam [2015] WASC 149 Knights Capital Group Ltd v Bajada and Associates Pty Ltd [2016] WASC 69 Labib v Histon [2017] WADC 39 Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 Phillips v Commonwealth (1964) 110 CLR 347 Re TLJ [2016] WADC 74 RHG Mortgage Corporation Ltd v Schafer [2014] WASC 297 Simonsen v Legge [2010] WASCA 238 Sims v Suda Ltd [2015] WASCA 65 Tobin v Dodd [2004] WASCA 288 Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
DR S LAI
First Respondent
DR P J BEATON
Second Respondent
Catchwords:
Extension of time to appeal - Summary judgment - Delay - Prospects of success
Legislation:
District Court Rules 2005 r 15
Rules of the Supreme Court 1971 O 16 r 1(1)
Surveillance Devices Act 1998 (WA)
Result:
Appellant's application for leave to extend the time within which to appeal from a decision of a registrar refused
Representation:
Counsel:
Appellant : In person
First Respondent : Mr C B Kent
Second Respondent : Ms J E J Wilcock
Solicitors:
Appellant : Not applicable
First Respondent : SRB Legal
Second Respondent : Panetta McGrath Lawyers
Case(s) referred to in judgment(s):
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209
Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184
Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Barrick Gold of Australia Ltd v F L Smidth Inc [2007] WASC 186
Boomalli Ltd v Hake [1985] WAR 7
City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120
Eng Mee Yong v Letchumanan [1980] AC 331
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson [1990] HCA 30 ; (1990) 64 ALJR 458
Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72
Girando v Girando (1997) 18 WAR 450
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Ibrahim v Honourable Justice Carolyn Martin [2012] WASC 338
Jackamarra v Krakouer (1998) 195 CLR 516
Johnson v Hallam [2015] WASC 149
Knights Capital Group Ltd v Bajada and Associates Pty Ltd [2016] WASC 69
Labib v Histon [2017] WADC 39
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Phillips v Commonwealth (1964) 110 CLR 347
Re TLJ [2016] WADC 74
RHG Mortgage Corporation Ltd v Schafer [2014] WASC 297
Simonsen v Legge [2010] WASCA 238
Sims v Suda Ltd [2015] WASCA 65
Tobin v Dodd [2004] WASCA 288
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
- TROY DCJ:
Introduction
1 On 27 January 2016 Registrar Kingsley ordered summary judgment for the first and second defendants against the plaintiff TLJ. I refer to the plaintiff in that way for the reasons I explain at [52].
2 TLJ was present at that hearing and made oral submissions. I am advised that having made those orders Registrar Kingsley informed TLJ that she was entitled to appeal his decision, but that she was required to do so within 10 days. TLJ did not take issue with that assertion at the hearing before me and I accept that TLJ was so advised.
3 By an email to the court dated 11 February 2016 TLJ stated,
I would like to put in an objection to the last court ruling and would like the matter to go in front of another registrar.
4 This email prompted a response from the team leader of customer support at the District Court, a Mr Brett Fletcher on the same date. Mr Fletcher confirmed that Registrar Kingsley did award judgment in favour of the defendants. Mr Fletcher advised TLJ that if she wished to appeal she must do so in accordance with div 3 r 15 of the District Court Rules 2005 (DCR). Mr Fletcher's email included a hyperlink to the DCR.
5 By a letter dated 15 May 2017 a court officer advised TLJ that the first defendant's bill of costs, filed on 22 December 2016, had been listed for a two hour taxation on 6 June 2017.
6 I understand that TLJ attended this taxation.
7 On 8 June 2017 TLJ lodged an appeal notice from the decision of 27 January 2016. The notice of appeal acknowledged that an extension of time was needed.
8 By affidavit said to be filed on 28 July 2017 TLJ stated that she was appealing a registrar's decision. TLJ stated that she also had another case on at the same time in the District Court that took a lot of time. Further, that she was told at a meeting by a registrar that she could put in an appeal to review this case and ask for an extension of time.
9 The matter came before me for hearing on 25 August 2017. I have treated the affidavit of 28 July 2017, coupled with TLJ's oral submissions, as an application to extend the time within which to file the appeal.
Background
10 On 27 October 2014 TLJ brought an action by writ of summons against the two defendants, Dr Stephen Lai and Dr P J Beaton. By statement of claim of the same date TLJ claimed the sum of $300,000 together with interest and costs.
11 The basis of TLJ's claim is that on 25 October 2006 Dr Lai, assisted by Dr Beaton, performed an elective caesarean section on her. TLJ had made it expressly clear that she did not want a tubal ligation procedure. She asserts that is what in fact occurred.
12 TLJ asserts that on 15 December 2011 she became aware, for the first time, that contrary to her wishes, Dr Lai and Dr Beaton had performed a tubal ligation procedure.
13 On 28 November 2014 the first defendant, Dr Lai filed his defence to the action and made an application for summary judgment in his favour, pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (RSC). Dr Lai's pleaded defence asserted that a diagnostic imaging report of 29 January 2009 established that as of that date, contrary to TLJ's claim, TLJ had not in fact undergone a tubal ligation procedure.
14 The second defendant, Dr Beaton, filed a 'holding defence' on 10 December 2014.
15 On 2 January 2015 TLJ filed an affidavit annexing letters written by Dr Beaton on 15 December 2011 and 27 March 2013. TLJ also annexed a statutory declaration from her husband, MC.
16 TLJ entered the matter for trial by certificate dated 21 April 2015.
17 On 29 May 2015 Deputy Registrar Hewitt listed Dr Lai's summary judgment application for 14 July 2015.
18 On 1 July 2015 Dr Beaton also filed a summons seeking that summary judgment be entered in his favour against TLJ. The application was supported by an affidavit from his legal representative, Ms Danielle Webb.
19 Ms Webb's affidavit annexed the report dated 29 January 2009 and a report from a radiologist Dr Emmeline Lee dated 23 June 2015.
20 The first defendant also relied upon Dr Lee's report: affidavit sworn by Mr Christopher Bruce Kent on 1 July 2015.
21 On 8 July 2015 Dr Beaton filed submissions in support of his application for summary judgment, together with a chamber summons seeking orders that TLJ's statement of claim be struck out wholly in accordance with O 20 r 19(1) of the RSC.
22 On 8 July 2015 TLJ made a statutory declaration that she had transcribed a conversation between Dr Beaton and herself on 15 December 2011 concerning the alleged tubal ligation procedure.
23 On 14 July 2015, Ms Webb on behalf of Dr Beaton filed a further affidavit with annexures.
24 TLJ was unable to attend the hearing on 14 July 2015. Registrar Kingsley granted leave to the second defendant to bring the application for summary judgment. All other applications and chambers summons were adjourned sine die with liberty to relist on 14 days' notice. Registrar Kingsley explained the effect of those orders to TLJ in a letter dated 27 July 2015.
25 On 11 August 2015 Mr Kent, on behalf of the first defendant swore a further affidavit annexing a further letter from Dr Lee dated 6 August 2015. The second defendant also relied upon this letter: affidavit sworn on 21 August.
26 On 13 October 2015 TLJ faxed a note to the court referring to the report of 29 January 2009 and the reports of Dr Lee. TLJ stated that she 'would like the chance to look for her own independent expert witness to look at her images', and referred again to the consultation during which she said that Dr Beaton 'confessed' to performing the tubal ligation.
27 On 16 October 2015 Registrar Kingsley made a number of orders including an order that on or before 6 November 2015 TLJ serve any report and accompanying photographs from a gynaecologist, Dr Yovich. The matter was listed for a directions hearing on 13 November 2015.
28 Seemingly as a result of that order, TLJ provided a number of documents which included a letter from Dr Yovich dated 22 March 2013.
29 TLJ also produced a one page report from a Dr J P Steg of Independent Imaging dated 9 November 2015.
30 Following a hearing on 13 November 2015 before Registrar Kingsley, each defendant indicated, by affidavits of respectively 16 and 24 November 2015, that they relied upon Dr Yovich's 22 March 2013 report.
31 TLJ sent an email on 24 November 2015 attaching a further letter from Dr Yovich to her solicitor, dated 2 May 2013.
32 On 1 December 2015 the matter was listed for hearing on 27 January 2016.
33 By affidavit sworn on 21 January 2016 Mr Enore Panetta, on behalf of the second defendant, attached a copy of an operation record for TLJ dated 20 March 2013.
34 In written submissions dated 25 January 2016, TLJ again referred to the recorded conversation with Dr Beaton, Dr Beaton's referral letter of 27 March 2013, the report and images of 29 January 2009 and Dr Steg's November 2015 report.
TLJ's appeal
35 As I have noted, on 27 January 2016 Registrar Kingsley ordered summary judgment for the first and second defendants against TLJ. On 8 June 2017, TLJ lodged an appeal notice from that decision.
36 Rule 15 of the DCR relevantly provides as follows:
15. Appeal lies from registrar to judge
(1) If a party is dissatisfied with a decision of a registrar the party may appeal to a judge.
(2) The appeal must be commenced within 10 days after the date of the decision or such longer period as a judge or legally qualified registrar may allow.
(3) The appeal must be commenced by filing and serving a notice that -
(a) sets out the particulars of the registrar's decision or that part of it to which the appeal relates; and
(b) sets out the final orders that it is proposed the Court should make on the appeal.
(6) The appeal is to be by way of a new hearing of the matter that was before the registrar.
38 A brief explanation was given in the body of TLJ's affidavit of 28 July 2017.
Principles governing the grant of an extension of time
39 The relevant principles are conveniently encapsulated in the judgment of Gething DCJ in Labib v Histon [2017] WADC 39 which I gratefully adopt.
40 There is no basis upon which I could conclude that TLJ has been denied procedural fairness at any stage of this litigation. Dr Lai's application for summary judgment was filed a month after the statement of claim and 14 months prior to the decision to grant summary judgment.
41 Having made the orders of 27 January 2016 Registrar Kingsley informed TLJ that she was entitled to appeal his decision, but that she was required to do so within 10 days.
42 Further, on 11 February 2016 TLJ was advised, less than two hours after receipt of her email, that if she wished to appeal she must do so in accordance with r 15. A hyperlink guiding her to those rules was provided.
43 As Gething DCJ noted in Labib v Histon [40] the principles governing the grant of an extension of time within which to commence an appeal in the Court of Appeal were considered by that court in Simonsen sv Legge [2010] WASCA 238 [8]. I consider that these principles are equally applicable when considering a failure to comply with the necessary time limit to appeal from a decision of a registrar.
44 The starting point is that on the expiry of the time for appealing, in this case 6 February 2016, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted: Simonsen v Legge [8(a)] citing Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459.
45 The grant of an extension of time under the rule is not automatic; the object of the rule permitting extensions of time is to ensure that the rules which fix time for the doing of acts do not become instruments of injustice; and the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Simonsen v Legge [8(b)] citing Gallo v Dawson (459).
46 Nevertheless, the rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time, there must be some material upon which the court can exercise its discretion: Simonsen v Legge [8(c)] citing Gallo v Dawson (459).
47 The importance of compliance with the rules and orders of the court cannot be overstated. The rules and orders of the court are not mere suggestions to be acted upon or not as it suits a litigant. The public interest in the effective utilisation of the public resources of the court and the interests of the other party in an expeditious and cost effective resolution of the appeal require that the rules and orders of the court be complied with, and if circumstances arise which make that impossible, that steps are taken promptly to seek an extension of time. Extensions of time are not, and cannot be, there simply for the taking: Sims v Suda Ltd [2015] WASCA 65 [10] (Buss and Newnes JJA).
48 There are, generally, at least four major factors to be considered, although they are not necessarily exhaustive in each case: Simonsen v Legge [8(d)] citing Gallo v Dawson (459).
Length of the delay
49 Firstly, the length of the delay: Simonsen v Legge [8(d)(i)]. Here the delay is 488 days.
Reasons for the delay
50 Secondly, the reasons for the delay: Simonsen v Legge [8(d)(ii)]. TLJ refers in her 28 July 2017 affidavit to the fact that she had another case on at the same time in the District Court that took a lot of time. This was the only explanation provided as to delay in the affidavit. As I have observed, the appeal notice made no reference to delay other than to acknowledge that an extension of time was required.
51 As I discussed with the parties at the hearing, it is the case that as of 27 January 2016 TLJ did have a case that was being heard in this court. I have examined, to an extent, the court's file in respect of that matter, APP 60 of 2015.
TLJ's other case - APP 60 of 2015
52 On 20 May 2016 his Honour Goetze DCJ handed down his decision in that matter: Re TLJ [2016] WADC 74. Consistent with the suppression of the name of the plaintiff in that matter, and given the need to refer to that judgment in these reasons, I have also referred to the plaintiff as TLJ.
53 On 17 July 2015 an assessor considering an application by TLJ under the Criminal Injuries Compensation Act 2003 (WA) refused an award of compensation. As I have noted at [24] there had been a hearing in this matter, albeit one that TLJ was unable to attend, three days earlier on, on 14 July 2015.
54 TLJ appealed against that decision by appeal notice filed on 6 August 2015. The appeal notice was accompanied by an affidavit of the same date. I note that the appeal notice was in the prescribed form and was filed within the requisite time limit. Accordingly TLJ indicated on the appeal notice that an extension of time was not required.
55 As of August 2015, therefore, TLJ had a demonstrable knowledge of the appropriate court proceedings involved in an appeal from a decision that she was dissatisfied with.
56 The appeal was heard by Judge Goetze on 11 December 2015. The matter was then adjourned to 29 January 2016. The 11 December 2015 hearing was 10 days after this matter had been set down for the final hearing of the application for summary judgment.
57 On 16 December 2015 the associate to his Honour Goetze DCJ wrote to TLJ in some detail, indicating the areas that she would be required to make further submissions about, including the fact that the time limit for making a claim for criminal injuries compensation was three years after the alleged offence.
58 I accept that as of late December 2015 TLJ, acting as a litigant in person, was required to turn her mind to a number of different issues in two distinct and separate court proceedings.
59 As I have noted summary judgment was given against TLJ on 27 January 2016. Two days later, on 29 January 2016, the other matter came before his Honour Goetze DCJ. That hearing was a brief one lasting for 34 minutes. At the time of that hearing the 10 day period, within which an appeal from the decision of Registrar Kingsley had to be lodged, was running.
60 On 15 April 2016 the matter again came before his Honour Goetze DCJ and following a short hearing (9.20 am to 9.36 am), His Honour ordered that the State Solicitor's office provide written submissions by 20 April. His Honour further ordered that TLJ provide written submissions by 22 April 2016.
61 On 20 April 2016 counsel for the State Solicitor, appearing as amicus curiae filed further written submissions. TLJ responded by submissions that extended to 1 ½ pages.
62 On 20 May 2016 his Honour Goetze DCJ handed down his decision and allowed TLJ's appeal. That decision brought that particular District Court matter to an end.
63 More than a year elapsed however, before the appeal notice in this matter was submitted.
TLJ's health issues
64 In early 2016 TLJ attended the offices of psychologists in Busselton on 6 January, 18 February, 25 February and 9 March 2016. With the exception of the initial meeting on 6 January all sessions were scheduled to be two hours in duration. These sessions resulted in a detailed psychological assessment report dated 4 April 2016, which was placed before his Honour Goetze DCJ.
65 It can be seen therefore that during the 10 day appeal period TLJ attended a hearing in the District Court and was about to commence one of three relatively lengthy psychological assessment sessions. TLJ's email of 11 February 2016 was seven days before the first of those sessions.
66 I also note that according to TLJ's submissions from the bar table at some point in 2015 or 2016, although more likely 2016, she was admitted to the Royal Perth Hospital because she had suffered seizures. She thought that she was an in-patient for about four to five days. This problem re-occurred recently, requiring her to attend the Armadale Hospital.
TLJ's efforts to pursue an appeal
67 In her submissions before me, TLJ stated that she sent the 11 February email because she had been informed by staff in the registry at the District Court that they did not have the relevant paperwork. TLJ stated that she tried to ring staff at the court to ask if they could send out any forms or if they had forms at the office. She also came into the court on one occasion, a couple of months or so after 11 February 2016, to make enquiries regarding the paperwork needed to appeal a decision.
68 In essence TLJ submitted that the reason for the absence of an appeal notice until 8 June 2017 was that no one had been able to provide her with the relevant forms. She submitted that observations made by the deputy registrar at the taxation hearing on 6 June 2017 caused her to understand that it was still possible for her to submit an appeal with a request for an extension of time, and that she did so two days later.
69 TLJ stated that she never accessed the link that was sent to her in the email from Mr Fletcher, which would have taken her through to the DCR. TLJ stated that she just read the email bit and did not know how you click on the links. TLJ did not think that she ever sent an email in reply to Mr Fletcher.
70 In my view there is no adequate explanation for TLJ's failure to reply to Mr Fletcher. I do not accept that she did not see the part of the email which contained the link to the DCR. Even if TLJ lacked an understanding of the concept of hyperlinks, which stretches incredulity in my view, it is inevitable that she would have shown the email to another person, particularly one of her daughters. It is inconceivable that the possibility of clicking on this link would not have been explored.
71 The next communication that I can discern between the parties or the court and TLJ was on 22 December 2016. By letter of that date the solicitors acting for the first defendant enclosed for filing the bill of costs for taxation.
72 A file note bearing the date 23 December 2016 indicated that TLJ was available after 20 February 2017. There is also a note of a new address for TLJ.
73 On 23 February 2017 the matter came before a registrar and was adjourned until 23 March 2017. It would appear there was no appearance on 23 March 2017 and the application was adjourned sine die.
74 TLJ submitted before me that she attended a hearing on 6 June 2017, which the court file indicates was before Deputy Registrar Hewitt. As a result of what was said to her on that occasion she filed her appeal notice on 8 June 2017.
75 There is nothing on the court file to suggest that TLJ did telephone the court on a couple of occasions after 27 January 2016, or that she attended in person at some stage about two months or so after 11 February 2016. Even if she did call and then attend in person as she suggests, that does not excuse the failure to supply an appeal notice, particularly given her familiarity with the process arising out of APP 60 of 2015.
76 I acknowledge the fact that as of 27 January 2016 there were tandem court proceedings. I also acknowledge that following 27 January 2016 it was necessary for TLJ to attend three relatively lengthy psychological sessions. It is the case however that the other proceedings came to an end on 20 May 2016, and that more than 12 months elapsed before the appeal notice in this matter was finally submitted.
77 There is no material before me that adequately explains a delay of this magnitude.
Prospects of TLJ's appeal succeeding
78 The third matter to be considered are the prospects of TLJ succeeding in the appeal: Simonsen v Legge [8(d)(ii)].
79 I remind myself that r 15 provides that an appeal is to be by way of a new hearing of the matter that was before the registrar. It is the essence of a new hearing or hearing de novo that the appeal court 'pronounce anew upon the rights of the parties as disclosed by the evidence before it': Phillips v Commonwealth (1964) 110 CLR 347 (Kitto, Taylor and Owen JJ). The court must form its own view of the facts as far as it is able to do so.
80 It is not necessary therefore for TLJ to establish an appealable error on the part of the registrar.
The applications for summary judgment
81 By O 16 r 1(1) of the RSC, the court may enter judgment for a defendant if satisfied that the action is frivolous or vexatious or that the defendant has a good defence on the merits. The application is to be supported by an affidavit verifying the facts upon which the application is based: RSC O 16 r 1(2).
82 In this case the application on behalf of the first defendant is dated 28 November 2014. It is supported by an affidavit of Christopher Bruce Kent of the same date asserting that the diagnostic imaging report dated 29 January 2009, 'CBK-1' demonstrates that TLJ has no cause of action against the first defendant.
83 The application was brought within 21 days after an appearance had been filed on behalf of the first defendant.
84 The second defendant's application for leave to apply for summary judgment was made by chambers summons dated 1 July 2015 supported by an affidavit of Ms Webb of the same date.
85 The application on behalf of the second defendant was not filed within 21 days of the filing of an appearance. The second defendant had filed an appearance on 13 November 2014. Leave of the court to apply for summary judgment was therefore required.
86 The policy of that rule is said to be that summary judgment applications, 'must be brought at an early stage of the proceedings and before unnecessary expense has been incurred': Barrick Gold of Australia Ltd v F L Smidth Inc [2007] WASC 186 [10] (Templeman J) citing Seaman on Civil Procedure [16.1.1].
87 In written submissions filed on behalf of the second defendant on 8 July 2015, the delay in bringing a summary judgment application was said to be explicable. Firstly the second defendant initially attempted to negotiate with TLJ. Secondly, the second defendant waited for an expert report before bringing the application. The expert report is the report of Dr Emmeline Lee received on 30 June 2015. The application was filed the following day.
88 It was submitted that no particular prejudice or expensive had been suffered or incurred by TLJ by reason of the delay.
89 As I have noted, on 14 July 2015 Registrar Kingsley granted leave to the second defendant to bring the application and the application was adjourned sine die.
Relevant material to be considered
90 I have had regard to:
• the covertly recorded conversation between Dr Beaton and TLJ on 15 December 2011;
• an affidavit, with attachment, filed by Mr Kent on behalf of the first defendant on 1 July 2015;
• a further affidavit, with attachments, filed by Ms Webb on behalf of the second defendant on 14 July 2015;
• a further affidavit, with attachment, filed by Mr Kent on behalf of the first defendant on 11 August 2015;
• a further affidavit, with attachment, filed by Ms Webb on behalf of the second defendant on 21 August 2015;
• submissions faxed to the court by TLJ on 13 October 2015;
• a report from Dr Steg from Independent Imaging on 9 November 2015;
• a letter from Dr Yovich dated 2 May 2013;
• a further affidavit, with attachment, filed by Mr Kent on behalf of the first defendant on 16 November 2015;
• a further affidavit, with attachment, filed by Ms Webb on behalf of the second defendant on 24 November 2015;
• submissions on behalf of the second defendant filed on 22 January 2016;
• an affidavit, with attachments, filed by Mr Enore Panetta on behalf of the second defendant on 22 January 2016;
• submissions filed by TLJ by email on 25 January 2016;
• TLJ's patient records at Glengarry Private Hospital.
Applicable principles in considering applications for summary judgment
91 Order 16 r 1 requires the court to be satisfied either that the action is frivolous or vexatious, or that the defendant has a good defence on the merits, or that the action should be disposed of summarily. The principles in relation to the determination of applications for summary judgment are well established and were summarised by Pritchard J in Knights Capital Group Ltd v Bajada and Associates Pty Ltd [2016] WASC 69 [40] - [44].
92 A party should not ordinarily be denied the opportunity to have his or her case determined following trial, and for that reason, the jurisdiction to grant summary judgment should be reserved for the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the action if it were allowed to go to trial. In other words, the question is whether, on the material before the court, it has been demonstrated that the plaintiff's action should not be permitted to proceed to trial because it is apparent that it must fail.
93 The defendant bringing the summary judgment application bears the legal onus of establishing that there is no serious question to be tried on any cause of action raised by the plaintiff. Under O 16 r 1(2) the defendant is required to file an affidavit verifying the facts upon which the application is based.
94 The plaintiff is also entitled, under O 16 r 2, to file an affidavit to show cause against the application. TLJ did so by filing an affidavit that had been sworn on 30 December 2014. If the plaintiff shows cause against the application for summary judgment by filing an affidavit in response, the plaintiff may assume an evidentiary onus to show why summary judgment should not be given. In other words, the plaintiff needs to show, on the evidence, that there exists a 'triable issue'. In doing so, the affidavit must 'condescend upon particulars' - that is, it must set out facts which establish that it is reasonable to permit the plaintiff to pursue the action.
95 While the plaintiff may assume an evidentiary onus, the defendant retains the legal onus of demonstrating that there is no real question to be tried.
96 An application for summary judgment is to be determined on the basis that the version of the facts put forward by the respondent to the application, assuming that it is not inherently incredible, would ultimately be accepted at the trial of the action: Johnson v Hallam [2015] WASC 149 [15] (Gething AM) citing Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 608 (Mason CJ, Deane & Dawson JJ); RHG Mortgage Corporation Ltd v Schafer [2014] WASC 297 [28] (Chaney J).
97 The court is not bound to accept uncritically as raising a dispute of fact calling for further investigation every statement in an affidavit, however equivocal, lacking in precision or inconsistent with contemporary documents or other statements by the deponent: Johnson v Hallam [15] (Gething AM) citing Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184 [28] (Newnes M); Eng Mee Yong v Letchumanan [1980] AC 331, 341 (reasons of the court).
98 If after argument there remains real uncertainty as to the applicant's right to judgment without further investigation of the facts, summary judgment must be refused: Johnson v Hallam [15] (Gething AM) citing Ansearch [28]; Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332, 335 (Herring CJ, Lowe & Fullagar JJ).
99 An application for summary judgment for a defendant or to strike out a cause of action should be approached with great caution. A claim may be struck out under RSC O 16 r 1 if it is so clearly untenable that it cannot possibly succeed: Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 [113] (Le Miere J) citing Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57].
TLJ's pleaded case
100 I return to TLJ's pleaded case in her statement of claim. I very much bear in mind that TLJ is a litigant in person and should accordingly be afforded some latitude. I have approached the documents in which she articulates her case with some flexibility. She is entitled to some leniency in relation to compliance with the court rules: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
101 I need to be astute to ensure that, in a poorly expressed or unstructured document setting out her case, there is no case which, with appropriate amendment or permissible assistance from the court, could be put into proper form: Ibrahim v Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, with whom Murray & Le Miere JJ agreed).
102 At the same time, I also need to ensure that any latitude given to TLJ is not unfair to the two defendants: Glew [10]; Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).
103 TLJ's pleaded case, as I discern it, is as follows. On 25 October 2006 she gave birth by elective caesarean section. The caesarean was performed by the first defendant Dr Lai assisted by the second defendant Dr Beaton. Both defendants had been previously advised that TLJ did not wish to have a tubal ligation procedure. A tubal ligation was, however, performed at the same time. This precluded TLJ from having any further children, although from early 2007 until December 2011 she and her partner attempted to have another child. In December 2011 she discovered for the first time that a tubal ligation had been performed. TLJ accordingly sought damages in the sum of $300,000.
Events of 25 October 2006
104 It is obviously critical to TLJ's claim that it can be established that a tubal ligation procedure was performed on 25 October 2006.
105 Attachment 'DPW1' to Ms Webb's affidavit dated 14 July 2015 is a letter from Dr Lai to Dr Beaton dated 30 August 2006. It relevantly reads,
thank you very much for referring [TLJ] to me. I have booked her for caesarean section on 25 October 2006. She does not want to have tubal ligations.
106 Attachment 'DPW2' to Ms Webb's affidavit is the operation record for 25 October 2006 bearing the signature of Dr Lai which simply says 'LUSCS', an acronym for lower uterine segment caesarean section. There is no record in the operation notes of a tubal ligation having been performed.
107 TLJ stated in submissions from the bar table that whilst preparing for the caesarean section she heard a conversation between a nurse and someone else, she thought Dr Lai. During that conversation one of the nurses said, 'have we got permission for this?' to which Dr Beaton said, 'yes'. TLJ submitted that the head nurse spoke to her to the effect that Dr Beaton should not have made that comment. There is no statement from this person in the materials.
108 TLJ's case is that despite both doctors being aware of her wishes in respect of a tubal ligation, with no criticism of her position referred to in Dr Lai's letter of 30 August 2006, and with an absence of any notes in the contemporaneous operation record to suggest that this procedure was carried out, the doctors nonetheless carried out this invasive procedure. Put another way, they sterilised TLJ against her express wishes and made no record of it.
The 29 January 2009 procedure
109 The next event of any relevance is a procedure resulting in the hysterosalpingography report that was annexed to Ms Webb's 1 July 2015 affidavit as 'DPW1'. This related to a procedure, as I understand it, involving injection of radio-opaque material into the uterus and uterine tubes and subsequent x-ray examination of the organs. The procedure was carried out at Imaging the South, Bunbury on 29 January 2009.
110 The report, issued the same day, is electronically signed by a Dr Daniell Boima.
111 The report, which was marked for the attention of Dr Beaton, notes that only a thin stream of contrast was seen into the right fallopian tube. This was only possible after a relatively forceful push of contrast into the uterus. No significant spell from the right side.
112 The report concludes:
• A patent (open or exposed) left fallopian tube with contrast spill into the pelvic peritoneum
• unsatisfactory, thin stream of contrast into the right fallopian tube with no significant spell suggesting possible partial obstruction at the comu of the uterus.
113 Dr Boima refers in this report to both fallopian tubes, makes no reference to them being tied and observes that the left fallopian tube is patent.
Consultations with Dr Beaton on 15 December 2011
114 The next relevant date is 15 December 2011. This is more than five years after the disputed tubal ligation. According to the statement of claim TLJ and her partner had been unsuccessfully trying to conceive for more than four years at this stage.
115 TLJ asserts that she consulted with Dr Beaton on 15 December 2011 to seek advice about conception. TLJ asserts that Dr Beaton told her that some five years earlier the tubal ligation procedure was performed at the same time as the elective caesarean section. He explained that this was because he and Dr Lai had decided that TLJ had given birth to a sufficient number of children. TLJ asserted that he told her that anyone with any more than two kids has two too many.
116 TLJ states that she returned for a second meeting with Dr Beaton on 15 December 2011 accompanied by her husband. This consultation was, unbeknown to Dr Beaton, video recorded by TLJ's husband.
117 I have viewed the DVD of this recording and compared it to written transcript obtained by TLJ. No objection has been taken by the second defendant to my considering this piece of evidence. Whilst there is an obvious argument that the evidence was obtained illegally through contravention of s 5 of the Surveillance Devices Act 1998 (WA), even if it was, that would not in itself mandate exclusion: Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 (Allanson J).
118 For the purposes of this application I proceed on the assumption that in considering the prospects of TLJ succeeding in the appeal I should have regard to this piece of evidence.
119 The DVD is a recording of a consultation that occurred between TLJ and Dr Beaton on 15 December 2011 for about 9 minutes 26 seconds. Plainly TLJ's husband was present within the consulting room, seemingly recording the consultation using a mobile phone. TLJ's daughter is also present.
120 There is no doubt that TLJ refers to the fact that she has had a tubal ligation. Further that Dr Beaton observed, 'Dr Lai did the – tied your tubes'. The context in which that observation was made is not entirely clear because the consultation had been ongoing for some time prior to the recording commencing.
121 At various stages of the conversation TLJ talks about her desire to have another baby, what the risk would be and whether she could still be able to have one more.
122 Although according to TLJ, at the first, unrecorded, meeting that day Dr Beaton had told her that he and Dr Lai had decided that she should have no more children, nothing of the sort is said by Dr Beaton in this conversation.
123 At one stage in the consultation Dr Beaton clearly draws a diagram which seems to depict the structure of the ovaries.
124 TLJ places reliance upon the fact that she said to Dr Beaton, 'you've got a very good memory if you know that that's the way…'. Implicitly, TLJ contends, this confirms that Dr Beaton was specifically recalling the disputed tubal ligation performed on 25 October 2006.
125 There is, however, no audible response by Dr Beaton to that observation. I do not accept, as TLJ urged upon me, that Dr Beaton stated to her that he had a very clear memory of giving her a tubal ligation.
126 Page three of the transcript refers to TLJ stating,
what do you think if I - because you and Dr Lai on my doctors, you did the tubal ligation what do you think is my risk?'
127 I have listened carefully to the recording. This part is not particularly clear but in my view, TLJ used the word 'caesarean' not 'tubal ligation'.
128 TLJ annexed to her 30 December 2014 affidavit a statutory declaration from her husband MC, also dated 30 December 2004, stating that he was present with TLJ at the meeting with Dr Beaton on 15 December 2011. Indeed, MC was the person who covertly recorded the consultation, although he does not acknowledge that in his statutory declaration.
129 It is not clear from the statement of claim whether TLJ asserts that her husband was present at both meetings on 15 December 2011. The statutory declaration of MC is more consistent with TLJ's account of the first appointment as opposed to the second, recorded appointment.
130 The only exception is that MC refers to Dr Beaton saying that he had a very clear memory of doing this with Dr Lai.
131 In my view, the assertion that during the earlier unrecorded consultation Dr Beaton informed TLJ that he and Dr Lai had decided that TLJ had given birth to a sufficient number of children, and that anyone with any more than two kids has two too many is inherently incredible. I do not proceed on the basis that this assertion would ultimately be accepted at the trial of the action.
132 Counsel for Dr Beaton submits that this was a conversation that took place between TLJ and Dr Beaton approximately some five years after the operation during which it is alleged that a tubal ligation was performed.
133 Counsel submitted that Dr Beaton's comments related to how a tubal ligation might be performed as opposed to specifically acknowledging that he had performed such a procedure upon TLJ. His observations followed a comment by TLJ that she had in fact undergone tubal litigation at the time of caesarean section.
134 Essentially counsel submitted that Dr Beaton simply accepted TLJ's assertions on face value given that he could not possibly have recollected the details of one particular procedure more than five years earlier. His concurrence with TLJ was not based on any actual recollection of the procedure or on any perusal of the medical records.
135 I note that there are at least two other people in the room along with TLJ and Dr Beaton during the recorded consultation. Dr Beaton glances at his computer on a number of occasions and also discusses with TLJ a referral for an arthritis specialist.
136 On the same date Dr Beaton wrote to a Dr Perkins, a gynaecologist and fertility specialist, in the following terms:
Thank you for seeing TLJ who is asking about tubal reversal surgery for herself and her husband.
Hysteroscopy and laparoscopy of 20 March 2013
137 The next event of note is a hysteroscopy and laparoscopy carried out by a gynaecologist, Dr John Yovich upon TLJ on 20 March 2013. TLJ asserts that when she recovered consciousness after this surgery, Dr Yovich advised her that her fallopian tubes did appear to have been 'stuck' to her uterine wall, indicating a previous tubal ligation. As TLJ acknowledged, there is no reference to this conversation in Dr Yovich's report and indeed it is contrary to the content of his report.
138 In oral submissions TLJ expressed a belief that Dr Yovich's 22 March 2013 report was based on photographs taken of another female on 15 March 2013, noting that she did not attend the Glengarry Hospital for this examination until 20 March 2013.
139 Dr Yovich does not refer to any photographs in either the report of 22 March 2013 or his letter dated 2 May 2013. Rather he states his conclusions following the procedures performed on 20 March 2013. In the materials before me, under the section 'plaintiff's medical reports', there are three pages of photographs. On each page TLJ's name is provided along with patient ID AL00592477 and procedure date 03/15/2013.
140 I accept that there is some ambiguity in the available materials in this regard, but I note that the patient ID on each of the photographs matches other documentation relating to TLJ.
141 The first defendant submits that the purpose of the referral to Dr Yovich, was to investigate the difficulty that TLJ and her partner were having in conceiving. The report 22 March 2013 is not therefore a medico legal report, for example on the question of whether or not a tubal ligation had been performed. That may be so, although I do note that prior to this procedure Dr Yovich had been advised that TLJ was of the belief that, without proper consent, a tubal ligation had been performed on her at her third caesarean section.
142 It is in that context that Dr Yovich observed that careful inspection of the fallopian tubes failed to reveal any evidence of previous sterilisation procedure. In particular the fallopian tubes were intact along the entire length. Dr Yovich referred to further options for TLJ and her partner, for example a reversal of her partner's vasectomy.
143 Dr Yovich's also reported, 'clearly, the fallopian tubes show no evidence of any sterilisation procedure'.
144 The operation record for TLJ dated 20 March 2013 is annexed to the 21 January 2016 affidavit of Enore Panetta as 'EAP 1'.
Further consultation with Dr Beaton on 27 March 2013
145 Following the procedure undertaken by Dr Yovich, TLJ submits that she had a consultation with Dr Beaton on 27 March 2013 and asked him to put into writing that tubal ligations had been performed, because of the uncertainty caused by Dr Yovich's report. In her oral submissions, TLJ stated that she went back to Dr Beaton to say, 'Look, Dr Yovich is trying to say you didn't do it' to which Dr Beaton said, 'No, I did'.
146 TLJ stated that Dr Beaton drew a diagram of her ovaries at the consultation which she produced at the hearing.
147 MC's statutory declaration of 30 December 2004, states that he was present with TLJ at the meeting with Dr Beaton on 27 March 2013 during which TLJ asked Dr Beaton to write down what he had done.
148 By a letter dated 27 March 2013 written to Concept Fertility Dr Beaton stated,
thank you for noting Tania had tubal ligation at caesarean section with burying of the fallopian tube ends into uterine incisions by Mr. Lai in 2006.
149 This brief letter does not reflect the express admission that TLJ contends Dr Beaton made at this consultation.
Dr Lee's reports
150 At some point prior to 23 June 2015 those acting for Dr Lai contacted Dr Emmeline Lee MBBS, FRANZCR, DRANZCOG to request an expert report. The images of the hysterosalpingography performed by Dr Boima on 29 January 2009, together with the accompanying report, were provided to Dr Lee.
151 Dr Lee concluded that there was no definite evidence of TLJ having undergone a tubal ligation procedure either by clipping or burying into the uterine incisions. In either situation, bilateral tubal occlusion (closing up) would be expected.
152 Dr Lai's solicitors sought a further report from Dr Lee. The further report dated 6 August 2015 states:
Given that the left fallopian tube was well visualised and is patent this indicates that it has not been cut or ligated or in any way tampered with. Contrast spills into the peritoneum on a HSG when the fallopian tube is not blocked. This would be the case in a normal tube that has not been ligated, cut or the subject of previous inflammation.'
Dr Steg's report
153 The final relevant piece of information is a one page report from a Dr J P Steg MB FRANZCR of Independent Imaging, dated 9 November 2015.
154 Dr Steg referred to the 29 January 2009 examination, noting that:
contrast was injected into the cervical os with adequate filling of the uterus. There was no filling of the fallopian tube on the right. There is no filling defect within the uterus.
155 Dr Steg continued:
The fallopian tube on the left is patent (open or exposed) with minimal extravasation of contrast surrounding the end of the fallopian tube. Normal uterus. Successfully blocked right fallopian tube. No obstruction seen of the left fallopian tube with probable extravasation into the Pouch of Douglas indicating probable patency. These images were done three years following the tubal ligation and this may be recanalisation, but I am not sufficiently experienced in this area of gynaecology to make a proper assessment.
156 The referral letter or request for information to Dr Steg is not included in the material before me. In particular, there is nothing to suggest that Dr Steg was asked to comment on whether or not the images demonstrated there had been a tubal ligation at some stage prior to 29 January 2009. Dr Steg's report implicitly refers to the tubal ligation as an assumed fact.
Prejudice to the first and second defendants
157 The fourth matter to consider is the extent of any prejudice to the respondent: Simonsen v Legge [8(d)(iv)]. This is also a factor referred to in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198 as cited in In de Braekt v Powell (2007) 33 WAR 389 [11] (Buss JA).
158 If the extension of time was granted and if the appeal succeeded, the defendants would be in the position where, at least 18 months after they thought they had obtained final judgment, they would have to resume defending this litigation. TLJ's action is based on an alleged event almost 10 years ago. The difficulty in explaining the context of Dr Beaton's remarks in December 2011 and in a letter dated 27 March 2013 are accentuated when no steps needed to be taken between February 2016 and August 2017 to explain Dr Beaton's reasons for saying and writing what he did.
Other factors
159 Other factors that arise for my consideration include whether the delay was intentional, or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or of its lawyers with which the litigant should not be saddled: : Simonsen v Legge [8(e)], Jackamarra v Krakouer (1998) 195 CLR 516 [66] (Kirby J) cited in City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 [33] (Buss JA).
160 I am not satisfied that the delay was intentional or contumelious. Equally I am not satisfied that it was merely the result of a bona fide mistake or blunder. Further the delay is Ms Jenkins' sole responsibility as opposed to the fault of a lawyer.
The cogency of the necessary explanation with the period of the delay
161 A further factor is that the length and reasons for the delay must be addressed by the applicant and the cogency of the explanation increases as the period of the extension sought increases: Simonsen v Legge [8(f)]; Girando v Girando (1997) 18 WAR 450, 454 (Malcom CJ) citing Boomalli Ltd v Hake [1985] WAR 7 [9] (Burt CJ).
Relevance of whether the proposed appeal has some prospect of success
162 I return to the third matter, namely that the time for appealing will not be extended unless the proposed appeal has some prospect of success.
163 The converse of that proposition is not that time must be extended if an appeal has any prospect of success, but rather, the fact that an appeal has some prospect of success is a factor which is to be taken into account, together with all other relevant factors: Simonsen v Legge [8(g)], City of Canning v Avon Capital Estates (Australia) Ltd [17] (Wheeler JA, with whom Martin CJ agreed).
164 Similarly, it is not the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significant prejudice suffered by the respondent, an extension of time should be granted: Simonsen v Legge [8(h)], City of Canning v Avon Capital Estates (Australia) Ltd [16] (Wheeler JA).
Conclusion
165 The delay in this case is particularly acute. Because of the length of the delay an exponentially more cogent explanation is required. TLJ has not adequately explained the delay in lodging the notice of appeal.
166 In considering the prospects of success of this appeal, I continue to bear in mind that the jurisdiction to grant summary judgment should be reserved for the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the action if it were allowed to go to trial. I again remind myself that an application for summary judgment is to be determined on the basis that the version of the facts put forward by the respondent to the application, assuming that it is not inherently incredible, would ultimately be accepted at the trial of the action.
167 I approach matters on the basis that the court is not bound to accept uncritically as raising a dispute of fact calling for further investigation every statement in an affidavit, however equivocal, lacking in precision or inconsistent with contemporary documents or other statements by the deponent. If after argument there remains real uncertainty as to the applicant's right to judgment without further investigation of the facts, summary judgment must be refused. An application for summary judgment for a defendant should be approached with great caution.
168 Applying those principles, my review of the materials before me nonetheless causes me to conclude that the prospects of TLJ's appeal succeeding are poor. The prospects of success are not entirely absent, given that the photographs relating to the procedure carried out by Dr Yovich at Glengarry Hospital bear the date 15 March 2013 rather than 20 March 2013. Secondly that Dr Beaton's observations recorded on the DVD and in the two letters relied upon, if taken literally, potentially support the assertion that the disputed procedure occurred.
169 Against that, TLJ has been aware since 22 March 2013 that a gynaecologist reviewing a procedure that he carried out upon her on 20 March 2013, unambiguously and emphatically noted that there had been no tubal ligation. TLJ did not undergo any medical procedure following that notification to establish that, contrary to Dr Yovich's unequivocal report, she had been the subject of a tubal ligation. TLJ's case is utterly dependent upon proof of that empirical fact.
170 Dr Lee's two reports, taken together and in conjunction with the 29 January 2009 report, unequivocally and emphatically reach the same conclusion. Again, faced with those conclusions, TLJ did not undergo any medical procedure to establish that she had been the subject of a tubal ligation. Dr Steg's report assumes that which is in issue, namely the existence of the tubal ligation.
171 I am satisfied that to grant an extension of time would cause prejudice to the first and second defendants. Moreover the delay is not attributable to a mere blunder or oversight nor is it attributable to the fault of a legal representative.
172 In all the circumstances the application for leave to commence the appeal out of time must be refused.
Final orders
173 TLJ's application to extend the time within which to commence an appeal from the decision of Registrar Kingsley on 27 January 2016 be refused.
174 I will hear from the parties as to costs.
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