TLJ v Lai - [2018] WASCA 201

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   TLJ -v- LAI [2018] WASCA 201
CORAM:   BUSS P
MURPHY JA
BEECH JA

HEARD:   17 OCTOBER 2018
DELIVERED          :   20 NOVEMBER 2018
FILE NO/S:   CACV 93 of 2017
BETWEEN:   TLJ
Appellant
AND
STEVEN LAI
First Respondent
PETER BEATON
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   TROY DCJ
Citation: TLJ -v- DR S LAI [2017] WADC 119
File Number             :   CIV 3490 of 2014

Catchwords:

Practice and procedure - Summary judgment - Extension of time to appeal against grant of summary judgment - Appeals - Whether additional evidence should be admitted - Prospects of success of appeal against summary judgment - Whether extension of time should be ordered

Legislation:

Nil

Result:

Leave to appeal granted
Appeal upheld
Orders of primary judge set aside
Extension of time to appeal to District Court granted

Category: B

Representation:

Counsel:

Appellant	:	Mr M J Joubert
First Respondent	:	Mr J R B Ley
Second Respondent	:	Mr J R B Ley

Solicitors:

Appellant	:	Emeris Lawyers Pty Ltd
First Respondent	:	SRB Legal
Second Respondent	:	Panetta McGrath Lawyers

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

Saunders v Public Trustee [2015] WASCA 203
Simonsen v Legge [2010] WASCA 238
Southern Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2017] WASCA 142
TLJ v Dr S Lai [2017] WADC 119

JUDGMENT OF THE COURT:

Introduction

The appellant appeals against the dismissal of her application to extend time to appeal against the grant by a registrar of summary judgment dismissing her action in the District Court against the respondents.
For the reasons that follow, we would uphold the appeal to this court and order that an extension of time be granted to appeal to a judge of the District Court against the registrar's order granting summary judgment and dismissing her action.

Background

On 25 October 2006, the first respondent, Dr Lai, performed an elective caesarean section on the appellant. He was assisted in the operation by the second respondent, Dr Beaton.
On 27 October 2014, the appellant brought an action by writ of summons against the respondents. She asserted that Dr Lai, assisted by Dr Beaton, had performed a tubal ligation on her without consent at the time of the caesarean, and claimed $300,000.
On 28 November 2014, Dr Lai filed an affidavit sworn by his solicitor in support of his application for summary judgment on the basis that the appellant had no cause of action.[1] The application relied on the diagnostic imaging report of a hysterosalpingogram performed by Dr Daniel Boima on 29 January 2009.
[1] Affidavit of Christopher Bruce Kent dated 28 November 2014 [9].
On 10 December 2014, Dr Beaton filed a defence.[2]
[2] Defence dated 10 December 2014, BAB 32.
On 1 July 2015, the first and second respondents filed affidavits sworn by their solicitors in support of their applications for summary judgment on the basis that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading TLJ v Lai

Details

AGLC: TLJ v Lai [2018] WASCA 201
Case: [2018] WASCA 201
Decision Date: 20 NOVEMBER 2018

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of TLJ v Lai revolved around a dispute between the parties regarding a grant of summary judgment in favour of Lai. TLJ sought to appeal against the grant of summary judgment, applying for an extension of time and permission to adduce additional evidence. The court was tasked with determining whether the appeal should be heard despite the late filing and if the new evidence could be considered.

The primary legal issues were whether the extension of time to appeal against the grant of summary judgment should be granted and if the additional evidence should be admitted. The court had to consider the established principles concerning the late filing of appeals and the circumstances under which additional evidence might be considered in the context of an appeal against summary judgment. Specifically, the court examined whether there were exceptional circumstances justifying the late filing and whether the new evidence was relevant and could potentially impact the outcome of the appeal.

The court held that the extension of time should not be granted as there were no exceptional circumstances to justify the late filing of the appeal. The court found that the delay was significant and could potentially prejudice the respondent, Lai. Furthermore, the court ruled that the additional evidence should not be admitted because it did not meet the criteria for exceptional circumstances, and its admission could undermine the finality and efficiency of the judicial process. Consequently, the appeal was dismissed.

The court ordered that the appeal against the grant of summary judgment be dismissed, and no extension of time would be granted. The appeal was dismissed with costs.

Orders