TLJ v Lai
[2018] WASCA 201
•20 NOVEMBER 2018
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 the appellant had no cause of action against them.[3] The affidavits simply annexed documents and did not depose, directly or on information and belief, to any fact material to whether the appellant had a cause of action. The application relied on the expert report of Dr Emmeline Lee, dated 23 June 2015, which was itself based on a review of the images from the hysterosalpingogram performed by Dr Boima in 2009, both of which are referred to below in more detail.
[3] Affidavit of Christopher Bruce Kent dated 1 July 2015 [7]; affidavit of Danielle Patricia Webb dated 1 July 2015.
On 13 October 2015, the appellant faxed a note to the court requesting 'the chance to look for [her] own independent expert witness to look at [her] images'.[4] On 16 October 2015, Registrar Kingsley made orders that on or before 6 November 2015, the appellant file and serve any report and accompanying photographs from Dr Yovich, a gynaecologist. The appellant produced a number of documents, including a letter from Dr Yovich dated 22 March 2013 and a report of Dr J P Steg dated 9 November 2015.[5]
[4] TLJ v Dr S Lai [2017] WADC 119 (primary decision) [26].
[5] Primary decision [27] - [29].
The appellant attended a hearing and made oral submissions to Registrar Kingsley on 27 January 2016. At the end of the hearing, the registrar ordered summary judgment against the appellant.[6]
[6] Primary decision [1] - [2].
The primary judge accepted that, on 27 January 2016, Registrar Kingsley informed TLJ that she was entitled to appeal the decision within 10 days.[7]
[7] Primary decision [2].
On 11 February 2016, the appellant emailed the District Court in terms that she 'would like to put in an objection to the last court ruling and would like the matter to go in front of another registrar'.[8] A court officer replied, on the same day, to the effect that if the appellant wished to appeal, she must do so in accordance with r 15 of the District Court Rules 2005.[9]
[8] Primary decision [3].
[9] Primary decision [4].
On 6 June 2017, the appellant attended a taxation of the first respondent's bill of costs.[10]
[10] Primary decision [5] ‑ [6].
On 8 June 2017, the appellant lodged a notice appealing Registrar Kingsley's decision and acknowledging that an extension of time was required.[11] The appellant filed an affidavit in support on 28 July 2017. The affidavit stated that she had another case on at the same time in the District Court and that this took a lot of time.[12]
[11] Appeal notice dated 8 June 2017.
[12] Affidavit of TLJ dated 28 July 2017.
On 31 August 2017, the primary judge dismissed the appellant's application for an extension of time to appeal against the summary judgment ordered by the registrar on 27 January 2016. It is necessary to outline the judge's reasons in some detail, in order to identify the evidentiary material to which the judge had regard, and the manner in which his Honour analysed that material. That will provide the framework for considering the grounds of appeal, which concern additional evidence now sought to be adduced by the appellant.
Primary decision
The primary judge applied the principles stated in Simonsen v Legge.[13] That case identified four significant, though not exhaustive, factors to consider in granting an extension of time, namely:
1.the length of the delay;
2.the reasons for the delay;
3.the prospects of the applicant succeeding in the appeal; and
4.the extent of any prejudice to the respondents.
[13] Simonsen v Legge [2010] WASCA 238 [8].
The primary judge structured his decision by reference to those criteria.
Length of delay
The primary judge identified the length of the delay as 488 days.[14]
Reasons for delay
[14] Primary decision [49]
As to the reasons for the delay, the appellant deposed in her affidavit of 28 July 2017 that she had another case on in the District Court which took up a lot of her time.[15] The primary judge noted that the appeal notice in that matter was in the prescribed form and filed within time, such that TLJ 'had a demonstrable knowledge of the appropriate court proceedings involved in an appeal from a decision that she was dissatisfied with'.[16] His Honour accepted 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'.[17] On 20 May 2016, the appellant's appeal in the other matter was allowed. However, more than a year elapsed before she filed an appeal notice in this matter.[18]
[15] Primary decision [50].
[16] Primary decision [55].
[17] Primary decision [58].
[18] Primary decision [62] - [63].
In early 2016, the appellant attended four psychological assessments in Busselton to assist the judge in the other matter. With the exception of the first session, each session was scheduled to be two hours.[19] The primary judge noted the evidence given by TLJ from the bar table that she had suffered seizures sometime in 2015 or 2016, more likely 2016, for which she was treated as an in-patient at Royal Perth Hospital for four or five days.[20]
[19] Primary decision [64].
[20] Primary decision [66].
TLJ stated to the primary judge that she emailed the District Court on 11 February 2016 because she had been informed by staff in the registry of the District Court that they did not have the relevant paperwork and that she had tried to get the relevant paperwork by telephoning the court. She again went to the court in person a couple of months later in an attempt to source the correct paperwork.[21] The appellant's email of 11 February 2016 was responded to, within two hours, and contained a hyperlink to the District Court Rules 2005.[22] Troy DCJ found that there was no adequate explanation as to why TLJ did not respond to the reply email, did not accept that she had not seen the hyperlink and found it inconceivable that the possibility of clicking on the link was not explored.[23]
[21] Primary decision [67].
[22] Primary decision [42], [69].
[23] Primary decision [70].
His Honour held that even if the appellant did telephone the court after 27 January 2016 and attend in person in the two months following 11 February 2016, that would not excuse her failure to provide an appeal notice, especially given her demonstrated familiarity with the process in relation to the other matter.[24] There was nothing before his Honour to adequately explain a delay of this magnitude.[25]
The appellant's prospects of succeeding in the appeal
[24] Primary decision [75].
[25] Primary decision [77].
In considering the merits, the primary judge stated that he had had regard to:[26]
[26] Primary decision [90].
(a)a conversation with Dr Beaton on 15 December 2011, which TLJ covertly recorded;
(b)an affidavit filed on behalf of Dr Lai on 1 July 2015;
(c)an affidavit filed on behalf of Dr Beaton on 14 July 2015;
(d)an affidavit filed on behalf of Dr Lai on 11 August 2015;
(e)an affidavit filed on behalf of Dr Beaton on 21 August 2015;
(f)submissions faxed to the court by TLJ on 13 October 2015;
(g)a report by Dr Steg dated 9 November 2015;
(h)a letter from Dr Yovich dated 2 May 2013;
(i)an affidavit filed on behalf of Dr Lai on 16 November 2015;
(j)an affidavit filed on behalf of Dr Beaton on 24 November 2015;
(k)submissions of Dr Beaton dated 22 January 2016;
(l)submissions sent by email by TLJ on 25 January 2016; and
(m)TLJ's patient records from Glengarry Private Hospital.
The judge stated the principles applicable to an application for summary judgment.[27] No criticism is, or could reasonably be, made of the judge's statement of the relevant principles. Whether his Honour determined the application in a manner consistent with those principles is not raised by the grounds of appeal.
[27] Primary decision [91] ‑ [99].
Noting that the appellant was self-represented and that the court is to afford her permissible assistance to put her case in a proper form without being unfair to the other parties, the primary judge sought to capture her case as follows:[28]
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.
[28] Primary decision [100] - [103].
The judge identified that it was critical for TLJ's claim that it be established that a tubal ligation procedure was performed on 25 October 2006.[29]
[29] Primary decision [104].
In determining whether or not a tubal ligation was performed on TLJ on 25 October 2006, Troy DCJ referred to many aspects of the evidence. His Honour referred to the following evidence and made the following observations as to it:
The procedure in 2006
(1)The letter from Dr Lai to Dr Beaton dated 30 August 2006, thanking Dr Beaton for referring TLJ to him for caesarean section. The letter noted that TLJ 'does not want to have tubal ligations'.[30]
(2)The operation record of 25 October 2006 bearing the first respondent's signature refers only to a 'LUSCS' (lower uterine segment caesarean section) and does not refer to a tubal ligation.[31]
(3)The appellant stated from the bar table that she overheard Dr Beaton telling a nurse that they had 'permission for this' and that the nurse subsequently told TLJ that Dr Beaton should not have made that comment.[32]
[30] Primary decision [105]; GAB 59.
[31] Primary decision [106].
[32] Primary decision [107].
2009 diagnostic imaging report
(4)The report by Dr Boima of the hysterosalpingography he performed on TLJ on 29 January 2009 noted that the left fallopian tube was patent, and that the lack of significant spill suggested the right fallopian tube was partially obstructed. The report did not observe that either fallopian tube had been tied.[33]
[33] Primary decision [112] - [113]; GAB 55.
Consultation and letter of 15 December 2011
(5)The appellant alleged that at the first of her two consultations on 15 December 2011 with Dr Beaton, he told her that he and Dr Lai had decided that she had enough children. [34] Troy DCJ expressed the view that it was 'inherently incredible' that, in this conversation, Dr Beaton had informed TLJ that he and Dr Lai had decided that TLJ had too many kids and that anyone with more than two kids had two too many. He '[did] not proceed on the basis that this assertion would ultimately be accepted at the trial'.[35]
[34] Primary decision [131].
[35] Primary decision [115], [122], [131].
(6)There was a second conversation on the same day which was covertly recorded. Although the context of the conversation is not clear, the appellant referred to having had a tubal ligation and Dr Beaton observed 'Dr Lai did the - tied your tubes'.[36]
[36] Primary decision [120].
(7)At one stage in the consultation, Dr Beaton clearly drew a diagram which seems to depict the structure of the ovaries.[37]
[37] Primary decision [123].
(8)The appellant contended that she said to Dr Beaton 'you've got a very good memory if you know that that's the way…', which she contends implicitly confirms that Dr Beaton recalled performing a tubal ligation.[38] There was, on the recording, no audible response from Dr Beaton, and his Honour did not accept that Dr Beaton stated that he had a clear memory of the tubal ligation having been performed.[39]
[38] Primary decision [124].
[39] Primary decision [125].
(9)Although transcript of the conversation records the appellant as stating 'what do you think if I - because you and Dr Lai are my doctors, you did the tubal ligation what do you think is my risk?', having listened to the recording, the primary judge formed the view that the appellant said 'caesarean' not 'tubal ligation'.[40]
[40] Primary decision [126] - [127].
(10)The appellant's husband provided a statutory declaration dated 30 December 2014 stating that he was present at the consultation of 15 December 2011 and that Dr Beaton said he had a very clear memory of doing this with Dr Lai. However, the primary judge found this to be more consistent with the appellant's account of the first conversation.[41]
[41] Primary decision [128] - [130].
(11)On 15 December 2011, Dr Beaton sent an email to Dr Perkins, a gynaecologist, thanking him for agreeing to see TLJ, who had been 'asking about tubal reversal surgery'.[42]
[42] Primary decision [136]; GAB 48.
20 March 2013 procedure
(12)On 20 March 2013, Dr Yovich performed a hysteroscopy and laparoscopy on the appellant. Dr Yovich's report observed that careful inspection of the appellant's fallopian tubes failed to reveal any evidence of previous sterilisation.[43] Dr Yovich referred to further options which the appellant and her partner had for improving their chances of conception, including a reversal of her partner's, MC's, vasectomy.[44]
[43] Primary decision [142] - [143]; GAB 66 ‑ 67.
[44] Primary decision [142]; GAB 66 ‑ 67.
(13)The appellant submitted that Dr Yovich said to her after the procedure that she appeared to have previously undergone a tubal ligation.[45] The appellant accepted that this was not referred to in, and was contrary to the content of, Dr Yovich's 22 March 2013 report of that procedure.[46]
[45] Primary decision [137].
[46] Primary decision [137].
(14)The appellant contended that Dr Yovich based his report on photographs of a procedure performed on another patient, as they were dated 15 March 2013, when TLJ's procedure was carried out on 20 March 2013.[47] Dr Yovich did not refer to any pictures in his report, but rather stated that his conclusions were based on the examination carried out on 20 March 2013.[48] The patient ID AL00592477 appears on each of the photos, which matches other documentation relating to the appellant.[49]
[47] Primary decision [138].
[48] Primary decision [139].
[49] Primary decision [139] - [140].
Further consultation with Dr Beaton on 27 March 2013
(15)The appellant submitted to the judge that she had a consultation with Dr Beaton on 27 March 2013 where she said to him 'Dr Yovich is trying to say you didn’t do it', to which Dr Beaton replied that he did.[50] The appellant stated to the judge that Dr Beaton drew a diagram of her ovaries at the consultation, and the appellant produced the diagram to the judge.[51] The appellant's husband stated in his statutory declaration of 30 December 2014 that he was present with the appellant at the consultation of 27 March 2013 during which the appellant asked Dr Beaton to write down what he had done.[52]
[50] Primary decision [145].
[51] Primary decision [146].
[52] Primary decision [147].
(16)In his letter dated 27 March 2013 to Concept Fertility, Dr Beaton wrote 'thank you for noting that [TLJ] had tubal ligation at caesarean section with burying of the fallopian tube ends into uterine incisions by Mr. Lai in 2006'.[53] The judge observed that this 'brief letter does not reflect the express admission' that the appellant contended Dr Beaton made at the consultation on 27 March 2013.[54]
[53] Primary decision [148]; GAB 49.
[54] Primary decision [149].
Dr Lee's reports
(17)Dr Lee's 23 June 2015 report, based on images and report of the hysterosalpingography performed by Dr Boima, concluded that there was no definitive evidence that TLJ had undergone a tubal ligation procedure, either by clipping or burying into uterine incisions.[55] The judge set out the following passage of Dr Lee's further report of 6 August 2015:[56]
[55] Primary decision [150] - [151]; GAB 56.
[56] Primary decision [152].
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
(18)Dr J P Steg of Independent Imaging produced a report dated 9 November 2015, which stated:[57]
[57] Primary decision [154] - [155].
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.
…
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.
Noting that the referral letter was not before him and that there was nothing to suggest that Dr Steg was asked to comment on whether or not there had been a tubal ligation at some time prior to 29 January 2009, Troy DCJ characterised his report's reference to the tubal ligation as an 'assumed fact'.[58]
[58] Primary decision [156].
Prejudice to the respondents
His Honour considered the issue of prejudice to the respondents. If the application were granted and the appeal succeeded, the respondents would have been in the position where, at least 18 months after they thought they had obtained final judgment and almost 10 years after the alleged tubal ligation, they would have to resume their defence. TLJ's delay in filing her application accentuated the difficulty of the steps which needed to be taken to explain the second respondent's oral remarks in December 2011 and the letter of March 2013.[59]
[59] Primary decision [158].
Other factors
Troy DCJ characterised the delay as neither intentional, nor contumelious, but neither was it a bona fide mistake or blunder. As a self-represented person, TLJ cannot sheet responsibility away to lawyers.[60]
[60] Primary decision [160].
Conclusion
Troy DCJ characterised the delay as 'acute' and one which required 'an exponentially more cogent explanation' than the one provided by TLJ.[61] Applying the principles relevant to summary judgment applications, the judge concluded that the appellant's prospects of succeeding in her appeal were 'poor'.[62] His Honour observed that her prospects of success were 'not entirely absent' given: [63]
[61] Primary decision [165].
[62] Primary decision [168].
[63] Primary decision [168].
1.the discrepancy between the date of the procedure TLJ underwent at Glengarry Private Hospital (20 March 2013) and the date shown on the photos taken at that procedure (15 March 2013); and
2.that Dr Beaton's remarks that were covertly recorded and expressed in the two letters may, 'if taken literally, potentially support the assertion that the disputed procedure occurred'.
The judge observed that since 22 March 2013, TLJ had been aware of Dr Yovich's 'unequivocal report' that she had not been the subject of a tubal ligation, yet had not undergone any procedure to establish that Dr Yovich's report was wrong.[64] TLJ's case was, his Honour observed, 'utterly dependent on proof of that empirical fact'.[65]
[64] Primary decision [169].
[65] Primary decision [169].
The judge found that Dr Lee's two reports and the 29 January 2009 report 'unequivocally and emphatically' reach the same conclusion.[66] TLJ, again, did not undergo any procedure to establish the contrary.[67] Dr Steg's report 'assumes that which is in issue, namely the existence of tubal ligation'.[68]
[66] Primary decision [170].
[67] Primary decision [170].
[68] Primary decision [170].
The grant of an extension of time would have caused prejudice to the respondents and the delay was not attributable to oversight, a blunder or the fault of a legal representative.[69]
[69] Primary decision [171].
In all of these circumstances, the judge refused leave to commence the appeal out of time.[70]
[70] Primary decision [172].
Grounds of appeal
The appellant advances two grounds of appeal, which are to the following effect:
(1)The primary judge's decision in relation to delay is against the additional evidence sought to be adduced with the leave of the court, combined with the evidence before the primary court.
(2)The primary court's decision in relation to the appellant's prospects of success is against the additional evidence sought to be introduced with the leave of the court, combined with the evidence before the primary court.
As can be seen, the grounds of appeal rely entirely upon additional evidence for which the appellant seeks leave to adduce on the appeal.
The appellant's application for leave to adduce additional evidence
The appellant seeks leave to adduce, as evidence in the appeal, her affidavit sworn 26 October 2017 and its annexures.[71]
[71] Application dated 13 November 2017, WAB 41.
The appellant's affidavit deals with two issues: the issue of delay and the question of the prospects of success of her appeal.
As to the delay, the appellant's affidavit states that her husband was suffering from a severe mental breakdown at the time the proceedings were in motion, and was detained in accordance with a compulsory order at that time.[72] The affidavit annexes a letter from Dr Maguire.[73] The letter states that Dr Maguire was the appellant's husband's treating doctor from November 2013 until the end of 2015. The letter referred to the appellant's husband's serious psychotic illness in that period.
[72] Affidavit of TLJ [4], WAB 48.
[73] WAB 51.
As to the merits of the appeal, the appellant's affidavit sets out her account of conversations she had with Dr Beaton, including surrounding Dr Beaton's letter of 27 March 2013.
The affidavit annexes a letter of 1 February 2013 written by Dr Yovich.[74] The letter is addressed to a doctor at Wagin General Practice. It may be inferred that the recipient of the letter was the appellant's GP at the relevant time. The letter commences by thanking the GP for referring the appellant and her husband 'with the specific consideration of assessing the feasibility of reversing [TLJ's] tubal ligation'. Part of the letter, on which the appellant places heavy reliance is as follows:
[74] WAB 56 ‑ 57.
Of further interest, I note that Dr Peter Beaton did write a referral letter to gynaecologist, Dr Roger Perkins in December 2011 and attached a diagram of his sterilisation procedure which appears to show that fallopian tubes were cut (à la Pomeroy technique) and the proximal segments were doubled back and attached to the cornual region of the uterus. However a Hysterosalpingogram study by SWHC Bunbury performed in January 2009 (following referral by your colleague Dr Kavita Kanodia) shows cornual occlusion on the right side but apparent impeded fill with slight spill of contrast on the left side. Apparently this demonstration occurred after high pressure perturbation and may not truly represent the true anatomical or physiological status.
The letter further stated that it would be appropriate to conduct a laparoscopy to evaluate the pelvic state and the true status of the appellant's fallopian tubes.[75]
[75] WAB 57.
Should the additional evidence be received?
It is convenient to focus on the additional evidence concerning the merits of the appeal and, in particular, Dr Yovich's letter of 1 February 2013.
The principles relevant to the grant of leave to admit additional evidence in an appeal against a final decision made after trial were outlined in Saunders v Public Trustee.[76] In that context, the principles may be broadly summarised as follows:
[76] Saunders v Public Trustee [2015] WASCA 203 [84] ‑ [90].
(1)In deciding whether to allow an application to adduce additional evidence against a final decision made after trial, the strong public interest in the finality of litigation is an important consideration.
(2)Another important consideration is whether the additional evidence is properly characterised as fresh evidence, which either did not exist at the time of the trial or could not have been discovered with reasonable diligence at that time.
(3)It is also relevant to consider the strength of the evidence, whether it is contested and whether there is a significant possibility that the evidence would lead to a different result if admitted.
(4)The ultimate question is whether it is in the interests of justice to admit the additional evidence, having regard to these considerations.
In the context of an appeal from an interlocutory decision, the consideration of finality applies with less force.[77] Generally speaking, there is a greater degree of flexibility when considering whether to receive additional evidence in appeals from interlocutory decisions. It remains relevant to consider questions of finality and whether the evidence was available to the parties in the primary proceedings.
[77] Southern Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2017] WASCA 142 [44] ‑ [47].
The appellant has not adduced evidence to explain why the letter of 1 February 2013 was not adduced in the proceedings in the District Court. Plainly, the letter was in existence at that time. Further, there is no basis to conclude that the evidence could not have been discovered with reasonable diligence at that time. However, it should not be inferred that the appellant made any deliberate or tactical decision not to adduce the letter of 1 February 2013. The appellant was not legally represented in the District Court. It is unclear whether the letter of 1 February 2013 came to her attention. If it did, it can reasonably be inferred that she did not appreciate any significance the letter may have had.
For the reasons set out below, in our view, there is a significant possibility that this evidence would have led to a different result if it had been admitted in evidence before the primary judge, and assuming the proper application of the relevant legal principles. That conclusion is, of course, by no means conclusive. However, its weight is affected by the circumstances that the application concerned the grant of summary judgment dismissing the appellant's claim and that the appellant was not legally represented before the registrar or the primary judge.
One of the significant factors in the discretion whether to extend time to appeal is the question of the prospects of success on appeal. The primary judge concluded that the appellant's prospects of success on the appeal were poor. In coming to that conclusion, the judge relied primarily on three aspects of the evidence:
(1)the 'unambiguous' statement in Dr Yovich's letter that, following careful examination, there had been no tubal ligation;[78]
[78] Primary decision [142], [143], [169].
(2)Dr Lee's two reports which, taken together, 'unequivocally and emphatically' reached the same conclusion;[79] and
[79] Primary decision [170].
(3)the appellant's failure, in the face of these reports, to undergo any medical procedure to establish that she had been the subject of a tubal ligation.[80]
[80] Primary decision [169], [170].
The judge observed that the appellant's prospects were 'not entirely absent', referring to two aspects of the evidence. The first was that the photographs relating to the procedure carried out by Dr Yovich bear the date 15 March 2013 rather than 20 March 2013. The second was that Dr Beaton's observations recorded on the DVD and the two letters 'if taken literally, potentially support the assertion that the disputed procedure had occurred'.[81]
[81] Primary decision [168].
It is noteworthy that, in this context, the primary judge made no mention of the diagram drawn by Dr Beaton. Earlier in his reasons, the judge made only passing reference to the diagram, observing that the appellant stated (to the judge) that Dr Beaton drew a diagram of her ovaries at the 27 March 2013 consultation and that the appellant produced that diagram at the hearing.[82] Thus, from the primary judge's perspective, the source of the evidence as to the document was the appellant. Further, the judge noted TLJ's description of the diagram as a 'diagram of [her] ovaries'.[83]
[82] Primary decision [146].
[83] Primary decision [146].
Against this background, Dr Yovich's letter of 1 February 2013 is of substantial evidentiary significance. Dr Yovich's letter of 1 February 2013 provides evidence that:
(1)Dr Beaton attached the diagram to his letter of 15 December 2011; and
(2)the diagram showed the particular technique (referred to as the à la Pomeroy technique) by which a tubal ligation occurred.
The primary judge evidently discounted the significance of Dr Beaton's apparent admissions made in his recorded statement on 15 December 2011 and his letters of that date and of 27 March 2013. The additional evidence adds significantly to the weight of Dr Beaton's apparent admission that a tubal ligation was done. In that manner, the evidence gives rise to a significant possibility of a different result.
Further, as explained in the next section of these reasons, when the whole of the evidence, including Dr Yovich's letter of 1 February 2013, is evaluated, the appellant's prospects of succeeding in the appeal cannot be characterised as poor. To the contrary, in our view, the appellant has very strong prospects of succeeding on the appeal.
For these reasons, in our view, it is in the interests of justice to admit Dr Yovich's letter of 1 February 2013 as additional evidence in the appeal.
The appellant's second ground of appeal contends that the primary judge's assessment of the appellant's prospects of success in the main action, and thus prospects of success in the appeal, was against the weight of the whole of the evidence, including the additional evidence.
Thus, determination of the ground directs attention to the question of the merits of the appeal to the District Court. We turn to that question.
The merits of the proposed appeal to the District Court
The appellant's appeal to the District Court was an appeal against the grant of summary judgment. It was, as the primary judge rightly recognised, an appeal de novo. Thus, the question of the merits of the appeal invite attention to whether the respondents had discharged their onus of establishing that there was no serious question to be tried on the cause of action raised by the appellant. As is well established, it is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceeding if it went to trial, that summary judgment ought properly be given. For the reasons that follow, in our opinion, on the whole of the evidence, including the additional evidence of Dr Yovich's letter of 1 February 2013, far from having poor prospects, the appellant has very strong prospects of demonstrating that this is not such a case.
The appellant adduced sworn evidence from both herself and her husband. By contrast, while the respondents relied on affidavits sworn by their solicitors, they adduced no evidence, either direct or on information and belief, as to any fact relevant to the merits of the appellant's claim. Neither of the respondents swore an affidavit. Nor was there an affidavit from Dr Yovich, or from any other medical person on whose report the respondents and the judge relied.
As will be seen, the evidentiary landscape is incomplete. That does not provide a reason for granting summary judgment. To the contrary, it tends to underline the need for caution before summarily dismissing a claim.
It may well be that if, at trial, Dr Yovich gave sworn evidence to the effect of his report of 22 March 2013, and if that evidence were accepted, the appellant's claim would fail. However, the appeal to the District Court concerned an application for summary judgment, not a final determination of the facts after a trial. Dr Yovich's evidence was in the form of a letter, not supported by any affidavit. Also, there is no expert evidence to explain the significance of medical findings made upon examination six years after a procedure, including the confidence with which it could be concluded from such an examination, and from the examination in this particular case, that no tubal ligation had occurred six years earlier. In our respectful opinion, Dr Yovich's letter was, and is, an inadequate foundation for a grant of summary judgment. Moreover, and significantly, as explained below, there was evidence capable of supporting a contrary conclusion, namely that Dr Lai, assisted by Dr Beaton, performed a tubal ligation on the appellant.
In our view, for corresponding reasons, the reports of Dr Lee, unsupported by any affidavit, even on information and belief, do not sustain a grant of summary judgment.
Further, Dr Lee's initial report of 23 June 2015 was far from unequivocal. It concluded that there was 'no definite evidence' of tubal ligation. The more categorical statements in Dr Lee's second report followed correspondence from the first respondent's solicitors. The terms of that correspondence were not revealed by the evidence. These features of Dr Lee's reports reinforce that the reports do not sustain a grant of summary judgment.
We have viewed the DVD of the consultation on 15 December 2011. It includes evidence that, as the judge found, Dr Beaton said to the appellant, 'Dr Lai did the - tied your tubes'. Further, arguably at least, it also includes the following:
(1)Dr Beaton spent some time explaining the manner in which Dr Lai 'doubles [the tubes] back and buries them' and drew a diagram to explain the process;
(2)there was discussion of the risks involved in the process of reversing an earlier tying of tubes and then having a child;
(3)there was discussion of the cost of that process of reversing;
(4)toward the end of the recording, the appellant asked Dr Beaton, '[s]o you think Dr Lai did a good decision by tying my tubes - you don't agree with me having another baby', to which Dr Beaton responded, '[w]ell it was your decision at the time … I remember you being at your wits end at the time …'
The last of these points was evidently not heard by the judge and was not referred to by the parties. The transcript of the consultation ends before this exchange. It could be heard when headphones were used in listening to the DVD. In the circumstances, if this last point were significant to the outcome, we would have given the parties an opportunity to make submissions in relation to it. However, that is not necessary as, on our analysis, the position is unaffected by the inclusion or exclusion of this aspect of the DVD of the consultation.
Further, Dr Beaton sent an email on 15 December 2011 - the day of the recorded consultation - to Dr Perkins, a gynaecologist, thanking him for agreeing to see TLJ, who had been 'asking about tubal reversal surgery'. Attached to Dr Beaton's letter of 15 December 2011 was a diagram, evidently of ovaries. According to Dr Yovich, the diagram appears to show fallopian tubes cut, àla Pomeroy technique, and proximal segments doubled back and attached to the cornual region of the uterus.
Taken together, these aspects of the evidence are capable of providing strong support for a conclusion that, on 15 December 2011, Dr Beaton, who was present and assisted during the procedure on 25 October 2006 and so could be expected to have first‑hand knowledge of the facts, was stating, and thereby admitting, that the appellant had had a tubal ligation. Dr Beaton said something to this effect; wrote something which was capable of implying the same; and, by the diagram, could be taken to have explained the manner in which, and technique by which, the tubal ligation was done.
The respondents submit that Dr Beaton's apparent admissions are consistent with his having been told by the appellant that she had had a tubal ligation, and having simply assumed that this was so.[84] In this respect, the respondents emphasised that five years had passed by the time of the consultation on 15 December 2011. However, that contention must be assessed in the context that there is no evidence from Dr Beaton to this effect, and in the context of an application for summary judgment. On a defendant's application for summary judgment, evidence apparently supporting the plaintiff's claim is not to be explained away on the basis that it is consistent with an explanation that might have been, but was not, attested to by one of the defendants.
[84] Appeal ts 45, 49 ‑ 51.
There was no evidence from Dr Perkins, the recipient of Dr Beaton's letter of 15 December 2011.
Further, Dr Beaton's letter of 27 March 2013, sent by facsimile to Concept Fertility, appeared to assert that the appellant had had a tubal ligation and to explain details of it. The letter thanked the recipient for noting '[TLJ] had tubal litigation at caesarean section with burying of the fallopian tube ends into uterine incisions by Mr Lai in 2006'. There is evidence to suggest that Dr Beaton attached the diagram referred to above to this facsimile.[85]
[85] GAB 49.
Again, there is no evidence to explain the apparent admission by Dr Beaton in this letter. There is also no evidence from anyone at Concept Fertility.
In Dr Lai's letter of 13 June 2013 to Slater and Gordon, Dr Lai said that he did not perform a tubal ligation. [86] He also asserts in that letter that Dr Beaton sent a corrected report to Concept Fertility dated 17 September 2013 that no tubal ligation was ever done by Dr Lai on the appellant. No 'corrected report' from Dr Beaton to Concept Fertility was, or is, in evidence. Dr Lai's statement in the letter that he did not perform a tubal ligation, unsupported by any affidavit, does not sustain a grant of summary judgment.
[86] GAB 71.
In the framework of a summary judgment application, it cannot be said, as the respondents submit,[87] that Dr Yovich's letter 'overpowers' or 'overbears' any apparent admissions made by Dr Beaton. As we have said, the letter is not supported by any evidence on oath. Moreover, there is no expert evidence as to the confidence with which a conclusion can be drawn from an examination more than six years after the alleged occurrence of a tubal ligation. To our mind, the unexplained statements and apparent admissions outlined above make the case unsuitable for summary determination. The resolution of conflicts in the various parts of the evidence is a matter for trial, not for summary determination.
[87] Appeal ts 48, 51.
For corresponding reasons, nor can the appellant's failure to undertake a further medical examination in response to Dr Yovich's letter or Dr Lee's report sustain summary judgment. Any evidentiary significance such a failure may have is properly weighed at trial.
For these reasons, in our view, the appellant has very strong prospects of succeeding on appeal against the grant of summary judgment.
In light of that conclusion, the appellant's second ground of appeal should be upheld, and this court should re‑exercise the discretion whether to extend time to appeal.
Should an extension of time be granted?
The very substantial length of the delay in this case weighs against the grant of an extension. That is particularly so when the appellant's explanation for the delay is less than satisfying. In many cases, those circumstances, combined with the potential prejudicial consequences for the defendants of such delay, would mean that an extension of time to appeal should be refused, notwithstanding the appellant's strong prospects of succeeding on the appeal.
However, the nature and extent of the prejudice to a defendant flowing from delay must be evaluated in the context of the issues arising in the particular case. In this case, it can safely be concluded that there is a single issue as to liability. The appellant's case is that a tubal ligation was done without her consent. The respondents' case is that no tubal ligation was done. There is no suggestion by the respondents in their defence or submissions to the District Court or to this court of any consent to a tubal ligation. In those circumstances, the detail of what was discussed in the lead‑up to the procedure in 2006 does not have the significance which it would have in many cases, such as a claim as to the adequacy of warnings given before a procedure. On the question of whether a tubal ligation occurred, notwithstanding the patient's known desire not to have one, it is difficult to suppose that the usual difficulties of recollecting events many years later would apply with any significant force.
Dr Beaton will, very likely, be required to give evidence about his consultations with the appellant in 2011, including the letter and diagram he wrote that day, and his letter of 27 March 2013. We accept that the passage of substantial additional time due to the appellant's delay in appealing is liable to aggravate any difficulties of recollection Dr Beaton would have had as at February 2016, although we note that there is no specific evidence in this respect. It is not suggested that he did not keep notes of his consultation with the appellant.
In our view, notwithstanding the very substantial delay, and the absence of a satisfactory explanation of it, the appellant's very strong prospects of success in the appeal against the grant of summary judgment mean that the interests of justice favour the grant of an extension of time to appeal.
Conclusion
For these reasons, we would grant leave to appeal, uphold the appeal, set aside the primary judge's orders, and order that there be an extension of time to appeal. We would hear from the parties as to the costs of the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
ASSOCIATE TO THE HONOURABLE JUSTICE BEECH20 NOVEMBER 2018
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