TUCKER v Hamdorf

[2006] WADC 191

TUCKER -v- HAMDORF & ANOR [2006] WADC 191

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WADC 191
Case No:	CIV:2877/2004	Heard:	17 NOVEMBER 2006
Coram:	COMMISSIONER SCHOOMBEE	Delivered:	24/11/06
Location:	PERTH
No of pages:	25	Judgment Part:	1 of 1
Result:	Application to extend validity of writ of summons for purposes of service granted Application for leave to bring action pursuant to s 47A(3) of Limitation Act 1935 discontinued
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Parties:	CAROLINE TUCKER JEFFREY MARK HAMDORF THE MINISTER FOR HEALTH MINISTER FOR HEALTH
Catchwords:	Practice and Procedure Application to extend validity of summons Application to extend time for application to extend writ of summons Leave to bring action pursuant to s 47A Limitation Act 1935
Legislation:	Rules of the Supreme Court 1971, O 7 r 1(2) Limitation Act 1935 s 47A, s 47A (1), (2) and (3)
Case References:	Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561 Bligh v Minister of Health [2006] WADC 79 Brealey v Board of Management Royal Park Hospital (1999) 21 WAR 79 Brown v Coccaro (1993) 10 WAR 391 Carter v State Housing Commission, unreported, DCt of WA; Library No 4606; 5 September 1995 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Quinlivan v Portland Harbour Trust [1963] VR 25 Thorpe v Shire of Coolgardie (1995) SR (WA) 133 Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 Victa Ltd v Johnson (1975) 10 SASR 496 Allen v Sir Alfred McAlpine & Sons Ltd & Anor [1968] 2 QB 229 Bingham v England (1996) 17 WAR 226 Hall v Motor Vehicle Insurance Trust [1984] WAR 111 Highway Construction Pty Ltd v Commissioner of Main Roads [2000] WASC 275 Hughes v Minister for Health [1999] WASCA 131 Jackamarra v Krakouer [1998] HCA 27 Lewandowski v Lovell (1994) 11 WAR 124 Matheson v Commissioner of Main Roads [2001] WASCA 402 State Rivers and Water Supply Commission v McIntyre (1965) VR 279 Stevens v Motor Vehicle Insurance Trust (1978) WAR 232 Storey v Ralph M Lee (WA) Pty Ltd (1992) 9 SR (WA) 13 W D & H O Willis (Australia) Ltd & Ors v Commissioner of State Taxation & Ors [1998] WASC 197

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : TUCKER -v- HAMDORF & ANOR [2006] WADC 191 CORAM : COMMISSIONER SCHOOMBEE HEARD : 17 NOVEMBER 2006 DELIVERED : 24 NOVEMBER 2006 FILE NO/S : CIV 2877 of 2004 BETWEEN : CAROLINE TUCKER

Plaintiff

AND

JEFFREY MARK HAMDORF
First Defendant

THE MINISTER FOR HEALTH
Second Defendant

FILE NO/S : CIVO 158 of 2006 BETWEEN : CAROLINE TUCKER

Plaintiff

AND

JEFFREY MARK HAMDORF
First Defendant

MINISTER FOR HEALTH
Second Defendant

(Page 2)

<Party Name1="CAROLINE TUCKER", Type1="Plaintiff", Name2="JEFFREY MARK HAMDORF", Type2="First Defendant", Name3="THE MINISTER FOR HEALTH", Type3="Second Defendant", Name4="CAROLINE TUCKER", Type4="Plaintiff", Name5="JEFFREY MARK HAMDORF", Type5="First Defendant", Name6="MINISTER FOR HEALTH", Type6="Second Defendant", Name7="", Type7="", Name8="", Type8="", Name9="", Type9="", Name10="", Type10="",>

Catchwords:

Practice and Procedure - Application to extend validity of summons - Application to extend time for application to extend writ of summons - Leave to bring action pursuant to s 47A Limitation Act 1935

Legislation:

Rules of the Supreme Court 1971, O 7 r 1(2)

Limitation Act 1935 s 47A, s 47A (1), (2) and (3)

Result:

Application to extend validity of writ of summons for purposes of service granted

Application for leave to bring action pursuant to s 47A(3) of Limitation Act 1935 discontinued

Representation:

CIV 2877 of 2004

Counsel:

Plaintiff : Mr G Droppert
First Defendant : Mr G Bourhill
Second Defendant : Mr G Bourhill

Solicitors:

Plaintiff : Friedman Lurie Singh & D'Angelo
First Defendant : Lavan Legal
Second Defendant : Lavan Legal

CIVO 158 of 2006

Counsel:

Plaintiff : Mr G Droppert
First Defendant : Mr G Bourhill
Second Defendant : Mr G Bourhill

(Page 3)

Solicitors:

Plaintiff : Friedman Lurie Singh & D'Angelo
First Defendant : Lavan Legal
Second Defendant : Lavan Legal

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

Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561
Bligh v Minister of Health [2006] WADC 79
Brealey v Board of Management Royal Park Hospital (1999) 21 WAR 79
Brown v Coccaro (1993) 10 WAR 391
Carter v State Housing Commission, unreported, DCt of WA; Library No 4606; 5 September 1995
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Quinlivan v Portland Harbour Trust [1963] VR 25
Thorpe v Shire of Coolgardie (1995) SR (WA) 133
Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337
Victa Ltd v Johnson (1975) 10 SASR 496

Case(s) also cited:

Allen v Sir Alfred McAlpine & Sons Ltd & Anor [1968] 2 QB 229
Bingham v England (1996) 17 WAR 226
Hall v Motor Vehicle Insurance Trust [1984] WAR 111
Highway Construction Pty Ltd v Commissioner of Main Roads [2000] WASC 275
Hughes v Minister for Health [1999] WASCA 131
Jackamarra v Krakouer [1998] HCA 27
Lewandowski v Lovell (1994) 11 WAR 124
Matheson v Commissioner of Main Roads [2001] WASCA 402
State Rivers and Water Supply Commission v McIntyre (1965) VR 279
Stevens v Motor Vehicle Insurance Trust (1978) WAR 232
Storey v Ralph M Lee (WA) Pty Ltd (1992) 9 SR (WA) 13
W D & H O Willis (Australia) Ltd & Ors v Commissioner of State Taxation & Ors [1998] WASC 197
(Page 4)

1 COMMISSIONER SCHOOMBEE: The plaintiff has made two applications. The first application is for the extension of the validity of the writ of summons for purposes of service to 15 December 2006. The second application is for leave pursuant to s 47A of the Limitation Act 1935 ("the Act")to bring an action against the defendants outside the period of one year from the date on which the cause of action accrued.

2 The plaintiff's claim against the defendants is set out in the endorsement of claim to the writ of summons which was issued on 17 December 2004 and in the draft statement of claim which has not yet been filed. The plaintiff alleges that the first defendant at all material times practised as a specialist surgeon at Sir Charles Gairdner Hospital ("the Hospital") and that the second defendant is the Board of Management of the Hospital. On 21 November 2000 the plaintiff underwent a laparoscopic gastric banding procedure performed by the first defendant at the Hospital ("the Operation"). The plaintiff says that during the Operation the first defendant and/or employees or agent of the second defendant perforated the plaintiff's oesophagus and stomach. The plaintiff alleges that as a result of the oesophageal perforation she suffered the following injuries:

(a) pleural effusion,

(b) respiratory failure,

(c) aspiration pneumonia,

(d) sepsis and acute renal failure,

(e) atrial flutter,

(f) multiple pressure sores,

(g) gastric perforations due to sepsis and/or direct perforation during the Operation,

(i) exacerbation of the severity of pre-operative medical conditions of diabetes, anxiety and depression,

(j) autoimmune haemolytic anaemia secondary to systemic lupus erythematosus and Sjogren's syndrome consequent to B12 deficiency following oesophageal and stomach perforations.

3 The plaintiff's operation took place on 21 November 2000. On 23 June 2003 Ilberys, who were then the solicitors for the plaintiff, wrote to the second defendant and asked whether he consented to the commencement of legal proceeding pursuant to s 47A of the Act.

(Page 5)

4 Sections 47A(1) and (2) of the Act relevantly provide as follows:

"47A Protection of persons acting in execution of statutory or other public duty

(1) Notwithstanding the foregoing provisions of this Act but subject to provisions of subsection (2) and (3), no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless –

(a) the prospective plaintiff gives to the defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and his name and address and that of his solicitor or agent, if any; and

(b) the action is commenced before the expiration of one year from the date on which the cause of action accrued,

…

(2) A person may consent in writing to the bringing of an action against him at any time before the expiration of 6 years from the date on which the cause of action accrued whether or not the notice as required by subsection (1) has been given."

5 On 14 July 2003 the second defendant replied to the letter from the plaintiff's solicitors and indicated that consent to the commencement of legal proceedings "at any time prior to the close of business on Friday 17 December 2004 (i.e., about eighteen months from now)" was granted. The plaintiff's letter of 23 June 2003 did not specifically request the consent of the first defendant, and the letter from the second defendant did not refer to the first defendant when consent was granted. However, during the hearing of theses applications counsel for the defendants indicated that the second defendant accepted that the first defendant had performed the Operation and any subsequent treatment and care of the plaintiff as an employee or agent of the second defendant and that it was
(Page 6)

accordingly conceded that the consent granted in the letter of 14 July 2003 was given in respect of both defendants.

6 On 17 September 2003 Phillips Fox, who were then acting for the defendants, wrote to the plaintiff's then solicitors informing them that they had been instructed to act for the second defendant and that all future correspondence should be directed to them. Although this letter only referred to the second defendant, counsel for the defendants advised this Court that Lavan Legal, who took over the matter from Phillips Fox, are now acting on behalf of both defendants. It further seems to have been common cause that first Phillips Fox and then Lavan Legal acted for both defendants from September 2003 onwards. On 8 January 2004, the defendants' then solicitors wrote another letter advising that any allegation of negligence against the second defendant would be strenuously defended on the basis that the care and treatment given to the plaintiff was at all times appropriate.

7 Between May and September 2005 various items of correspondence were exchanged between the plaintiff's solicitors and the defendants' solicitors, the plaintiff's solicitors and the first defendant and the plaintiff's solicitor and the Freedom Information Officer at the Hospital. The plaintiff's solicitors asked the first defendant for a detailed medical report answering certain questions regarding the Operation, his pre-operative advice and the post-operative complications suffered by the plaintiff. The first defendant declined to do so.

8 The defendants' solicitors requested the plaintiff's solicitors to provide copies of the medical records from the Armadale Kelmscott Health Service together with all other medical documents in support of the plaintiff's claim. The plaintiff's solicitors replied that they would consider this request in light of the refusal of the first defendant to provide a report. During the hearing of the applications it was common cause between the parties that the medical records from the Armadale Kelmscott Health Service were not supplied by the plaintiff to the defendants at any time.

9 As part of the correspondence the plaintiff's solicitors asked whether the defendants' solicitors had instruction to accept service of the writ of summons and on 23 August 2004 the defendants' solicitors replied that they did have instructions. The defendants' solicitors sent three follow-up letters on 10 September, 1 October and 20 October 2004 asking the plaintiff's solicitors to attend to the service of the writ of summons.

(Page 7)

10 On 17 December 2004 the plaintiff's writ of summons against the defendants was issued by this Court. However, the writ was not served on the defendants. In an affidavit Mr Jeffrey Potter, a senior associate of the plaintiff's solicitors who then had and still has conduct of the plaintiff's file, states that the writ of summons was not served on the defendants' solicitors within 12 months of the date of issue of the writ of summons "due to my mistake in attending to that task". At that time Mr Potter was employed by Ilberys, but continued to act for the plaintiff, on her instructions, when he changed firms to the plaintiff's present solicitors in about March 2005. It is not explained why this mistake occurred, but it appears from the documents annexed to the affidavits filed in these applications that any correspondence between the plaintiff's solicitors and the defendants' solicitors ceased after 20 October 2004.

11 It is not explained in the affidavit by Mr Potter whether the plaintiff's claim was progressed in any manner after the writ of summons had been issued and whether further investigation were made. The plaintiff filed an affidavit in which she describes ongoing complications experienced after her discharge from the Hospital and subsequent admissions to other hospitals for treatment of these complications. In particular, she started to attend the Immunology Clinic at Fremantle Hospital in about April 2004 and says in her affidavit that she has been diagnosed with autoimmune haemolytic anaemia secondary to systemic lupus erythematosus and Sjogren's syndrome consequent to B12 deficiency following oesophageal and stomach perforations. She spent time as an inpatient at the Immunology Clinic at Fremantle Hospital during the periods 17-24 November 2004, 12-20 June 2005 and 23-25 February 2006.

12 It therefore appears that the plaintiff suffered from ongoing and unresolved medical problems which may have been related to the Operation. Although this should have been explained in the affidavit by Mr Potter, I am prepared to accept that one of the reasons for the delay by the plaintiff's solicitors in progressing the plaintiff's claim was that they were waiting for the plaintiff's condition to stabilise prior to issuing a statement of claim. This does not mean, however, that the plaintiff's solicitors should not have advised the defendants' solicitors that the writ had been issued and that they should not have attended to the service of the writ prior to its expiry on 16 December 2005.

13 The plaintiff says in her affidavit that on 8 June 2006 she telephoned Ilberys and enquired as to the progress of her case. She was advised that due to a mistake, the writ of summons had not been served upon the defendants' solicitors, but that her case would be immediately attended to.

(Page 8)

The plaintiff does not say specifically in her affidavit that she had assumed that her solicitors would take all steps necessary to progress her claim and issue and serve the writ of summons timelessly. However, she says that she had instructed her then acting solicitors to commence legal proceedings against both defendants and it may be assumed that she trusted her solicitors to take all necessary steps to issue, serve and progress the writ of summons.

14 Mr Potter states in his affidavit that upon realising his mistake, he sought instructions from the plaintiff as to whether her claim could be settled at an informal conference. Those instructions must have been provided because the plaintiff's solicitors thereafter wrote to the defendants' solicitors on 14 June 2006 and asked whether they were prepared to attend an informal conference to discuss the finalisation of the plaintiff's claim. The defendants' solicitors replied on 23 August 2006 stating that since they had not received any correspondence after 16 August 2004 they had closed their file. They further indicated that prior to entering into any informal discussions they required particulars of the plaintiff's allegations against both defendants, copies of expert evidence in support of her claim and settlement submissions setting out the basis of the plaintiff's claim.

15 In response to this letter the plaintiff's solicitors wrote on 28 August 2006 asking for confirmation that in the event that the claim could not be finalised during informal discussions, the second defendant would consent to the plaintiff having leave to commence proceedings pursuant to s 47A of the Act onor before 31 December 2006. It appears that the plaintiff's solicitors received no reply to this letter as they repeated their request for consent pursuant to s 47A of the Act in a letter of 21 September 2006. On 28 September 2006 the defendants' solicitors replied, stating that their clients would not consent to the commencement of legal proceedings "in the absence of any information being provided by the plaintiff about the specific reasons for the plaintiff's delay in commencing proceedings and without being provided with any expert evidence (or the substance of expert evidence) in support of the plaintiff's claim that the defendant was negligent". However, the defendants' solicitors indicated that they would still be prepared to proceed with an informal conference, if they were provided with the documentation requested in their letter of 23 August 2006.

16 In response to the letter from the defendants' solicitors, the plaintiff's solicitors brought the application for the extension of the validity of the writ for purposes of service and the application for leave to commence an

(Page 9)

action against the defendants pursuant to s 47A of the Act. Both applications were filed with this Court on 13 November 2006. Counsel for the plaintiff indicated from the bar table that the plaintiff's affidavit explaining that the writ of summons had been issued but not filed was served on the defendants' solicitors on 26 October 2006.

17 In the plaintiff's affidavit in support of the applications she states that she has been advised by her solicitors that they have received all medical records relating to the Operation. She further says that her solicitors have advised her that expert opinion has been obtained but that they prefer to obtain further information from the first defendant in relation to the Operation and the post-operative problems prior to disclosing the substance of the expert reports.

The parties' submissions

18 Counsel for the plaintiff submitted that the defendants had not suffered any prejudice by reason of the failure of the plaintiff's solicitors to serve the writ of summons within 12 months after its issue, as the defendants were advised of the plaintiff's claim as early as 23 June 2003 and made their own investigations through their solicitors resulting in the letter from the defendants' solicitors of 8 January 2004 stating that the claim would be strenuously defended on the basis that the care and treatment given to the plaintiff was at all times appropriate. Counsel for the plaintiff pointed out that there were detailed notes and records available regarding the treatment received by the plaintiff during the operation and as part of her post-operative care, which records were attached to the plaintiff's affidavit.

19 Counsel for the plaintiff argued that the medical records indicated that a limited number of medical practitioners were involved in the treatment of the plaintiff during the operation and post-operatively and that their names and position at the Hospital appeared clearly on the medical records. The medical records also indicated that the first defendant was involved in the plaintiff's post-operative care and the decision on 8 December to carry out a laparotomy to remove the gastric band and to close the gastric perforations. Counsel for the plaintiff submitted that by reason of the availability of the detailed medical records and the reference to the names of the medical personnel involved, the defendants had not suffered any prejudice and were still able to carry out any investigations which had not been completed at the time when the plaintiff first gave notice of her claim.

(Page 10)

20 Counsel for the plaintiff also submitted that Armadale Kelmscott Health Service and the Immunology Clinic at Fremantle Hospital where the plaintiff had received further treatment were public hospitals which were subject to the direction and control of the second defendant and that the second defendant was entitled to have access to the medical records kept by those hospitals in respect of the plaintiff.

21 Counsel for the defendants on the other hand submitted that his clients would suffer prejudice if the plaintiff's applications were allowed. The main aspect of prejudice relied upon by the defendants was the fact that the letter by the plaintiff's solicitors to the second defendant, dated 23 June 2003, did not inform the second defendant that he was alleged to have been negligent during the post-operative care and treatment of the plaintiff. That letter only referred to a breach of duty relating to "the consent process prior to the gastric banding procedure" and "in respect to the performance of that procedure". Counsel for the defendant stated from the bar table that his investigations into any allegations of negligence by the second defendant had been limited to the advice given to the plaintiff prior to the Operation and the care and treatment provided during the operation. The defendants would be prejudiced if they now had to investigate the post-operative care and treatment provided to the plaintiff, as it was doubtful that all relevant personnel who treated the plaintiff during this period would still be employed by the Hospital or could otherwise be located.

22 Counsel for the defendant relied on an affidavit filed by Judith-Ann O'Brien, the Liability Claims Officer-Health Services in the RiskCover Division of the Insurance Commission of Western Australia, dated 17 November 2006, and filed on the morning of the hearing. This affidavit states that after receipt of the plaintiff's letter of 23 June 2003 Dr Lindsay Stewart, Medical Administrator of the Hospital was asked by Ms Julie Gifford, Assistant Claims Advocate, Metropolitan Health Services, RiskCover to confirm all relevant patient records of the plaintiff were complete and that all medical staff involved in the plaintiff's care had provided statements or were able to be contacted to provide statements and that there would be no prejudice arising due to late notification, given that the procedure was undertaken over 2½ years previously. The affidavit further says that Dr Stewart advised Ms Gifford on 1 July 2003 that all the specialists were still working at the Hospital but that the registered medical officer who witnessed the consent form signature might not be. Dr Stewart also advised that all records were intact. As a result of the advice from Dr Stewart the second defendant

(Page 11)

agreed to the commencement of the plaintiff's proceedings at any time prior to the close of business on 17 December 2004.

23 Ms O'Brien further states in her affidavit that at all times until August 2004, when the defendants' solicitors advised the plaintiff's solicitors that they were entitled to accept service of the writ of summons, all investigations of the plaintiff's claim by the defendants' solicitors had been limited to the plaintiff's care and treatment during the Operation and had not dealt with the care and treatment after the Operation. Ms O'Brien points to the allegations in the plaintiff's draft statement of claim which state that employees and agents of the second defendant in addition to the first defendant were negligent in that they delayed in identifying and treating three stomach perforations from the date of the Operation until 8 December 2000, failed to organise CT investigations with contrast, an endoscopy and a laparotomy to detect and treat the stomach perforations. Ms O'Brien says in the affidavit that she has been advised by the medical administrator of the Hospital that 60 nursing staff looked after the plaintiff during her admission at the Hospital in 2000 and that of those only 27 were still employed by the Hospital. The medical administrator also advised that she was unable to ascertain the number of doctors involved in the plaintiff's care, but that there were likely to be at least 15-20 given the duration of the plaintiff's stay in hospital. The medical administrator informed Ms O'Brien that the signatures of these doctors were "largely illegible and that it would take days to identify them and weeks to ascertain their current whereabouts, if at all". Lastly, the medical administrator advised that in her experience in healthcare management it was apparent that junior medical staff in teaching hospitals were difficult to locate once they had left the Hospital.

24 The submissions filed by the defendants also say that the defendants would suffer prejudice if the plaintiff was allowed to progress her claim at this stage as they had not been provided with the medical records from the Armadale Kelmscott Health Services. However, in oral submissions counsel for the defendants conceded that there was no reason why these notes would no longer be available and if there were not, the plaintiff would be equally prejudiced by this fact.

Application to extend the validity of the writ of summons

25 The plaintiff's application to extend the validity of the writ of summons for the purposes of service is governed by O 7 r 1(1) and (2) of the Rules of the Supreme Court 1971. These rules provide as follows:

(Page 12)

"[7.1] Duration and renewal of writ

1(1) For the purpose of service, a writ (other than a concurrent writ) is valid in the first instance for 12 months beginning with the date of its issue and a concurrent writ is valid in the first instance for the period of validity of the original writ which is unexpired at the date of issue of the concurrent writ.

(2) Where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding 12 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application is made to the Court before that day or such later day (if any) as the Court may allow."

26 Pursuant to O 7 r 1(1) the validity of the writ of summons issued in this matter on 17 December 2004 expired at midnight on 16 December 2005. This is because O 7 r 1(1) provides that a writ is valid in the first instance for 12 months beginning with the date of its issue. This means that the validity expires at midnight of the previous date a year later: Brealey v Board of Management Royal Park Hospital (1999) 21 WAR 79 at 85, [25].

27 Accordingly, the plaintiff faces two hurdles. Firstly the writ has become stale since 16 December 2005 and secondly, the application to have the validity of the writ extended should have been brought before the validity of the writ expired, that is before 16 December 2005.

28 It is a well established principle that a writ which has not been served within the 12 months period required by O 7 r 1(1) is stale and invalid for purposes of service, but not otherwise a nullity: Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 at 340-341. The fact that a writ has not been served in time does not prevent the writ having validity for purposes of the Act, and the action is deemed to have been commenced when the writ was issued: Brealey v Board of Management Royal Park Hospital (supra) at 81, [6] and Victa Ltd v Johnson (1975) 10 SASR 496 at 503.

29 On the basis of the above authorities I accept that the writ of summons issued in this matter on 17 December 2004 is still valid for all purposes other than that it cannot now be served without its validity being

(Page 13)

retrospectively extended for purposes of service by this Court. This means that the proceedings by the plaintiff against the defendants have been commenced in time for purposes of the limitation period of six years provided for in s 38(1)(c) of the Act. In my view, this also means that the plaintiff has commenced proceedings for purposes of the consent granted by the second defendant in his letter of 14 July 2003 pursuant to s 47(A)(2) of the Act. Section 47(A)(2) provides that a person may consent in writing to "the bringing of an action against him", and the second defendant's letter of 14 July 2003 states that he consents to "the commencement of proceedings" at any time prior to the close of business on 17 December 2004. As an issued writ is valid for all purposes other than that it cannot be served without leave of the court, the condition imposed by the second defendant in respect of the consent granted pursuant to s 47A(2) was met when the plaintiff "commenced proceeding" or "brought an action" on 17 December 2004.

30 If leave of this Court to extend the validity of the writ for purposes of service is granted it is not necessary that the plaintiff obtain the leave of this Court pursuant to s 47A(3) of the Act to commence proceedings against the defendants outside the one year period after the cause of action arose. Section 47A(3) provides as follows:

"47A Protection of persons acting in execution of statutory or other public duty

…

(3) (a) Notwithstanding the foregoing provisions of this section application may be made to the Court which would but for the provisions of this section have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) has been given to the prospective defendant.

(b) Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it thinks it is just to do

(Page 14)

so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose.

(c) Before an application is made under the provisions of paragraph (a), the party intending to make the application shall give notice in writing of the proposed application and the grounds on which it is to be made to the prospective defendant, at least 14 days before the application is made."

31 During the hearing of the applications this Court put to counsel for the plaintiff whether he wished to proceed with the application for leave pursuant to s 47A(3) of the Act in the event of this Court being minded to grant the application to extend the validity of the writ for purposes of service. Counsel for the plaintiff requested time to consider this question and advised the Court by letter after the hearing that the plaintiff did not wish to proceed with the application under s 47A(3) if her application pursuant to O 7 r 1(2) was granted.

32 The first question therefore is whether the plaintiff's application to extend the validity of the writ for purposes of service should be granted. The plaintiff has to cross two hurdles in this application. Firstly, it has to persuade the court to allow it to make the application out of time, that is after the validity of the writ has already expired, and secondly, the court has to extend the validity of the writ for purposes of service.

33 Order 7 r 1(2) provides that a court may extend the validity of the writ if an application is made to the court before the day on which the validity of the writ would otherwise expire or such later day (if any) as the court may allow. This order therefore confers a discretion on this Court to hear the application even though the application is made approximately 11 months after the day on which the validity of the writ expired, that is after 16 December 2005.

34 If this Court allows the application to be made out of time, the validity of the writ does not need to be extended for a period of more than 12 months. Order 7 r 1(2) provides that the validity of the writ may be extended for a period not exceeding 12 months at one time, beginning with the day next following the day on which the writ would otherwise have expired. This means that if the Court would extend the validity of the writ by 12 months from 17 December 2005 (the day after the validity of the writ expired), this would give the writ validity until 16 December 2006. It is therefore not necessary in this case to rely on O 2 r 1 or O 3 r 5

(Page 15)

of the Rules of the Supreme Court1971 which have been resorted to in other cases to allow the Court to extend the validity of the writ for more than 12 months at one time. Such cases are, for example: Brown v Coccaro (1993) 10 WAR 391 at 395-396 and 400-401 and Brealey v Board of Management Royal Park Hospital (supra) at 90-91.

35 Order 2 r 1 provides as follows:

"[2.1] Non-compliance with rules

(1) Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

36 Order 3 r 5 provides as follows:

[3.5] Extension, etc, of time

(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these Rules, or by any judgment, order, or direction to do any act in any proceedings.

(2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.

37 I have referred to O 2 r 1 and O 3 r 5 because the decisions dealing with O 7 r 1 (2) and the extension of the time limits imposed by this rule sound the cautionary note that the broad discretion available under O 2 r 1 and O 3 r 5 should be exercised with care and caution. Thus Ipp J held as follows in Brealey v Board of Management Royal Park Hospital (supra) at [45] and [50]:

"45. However, when O 2, r 1 is used to remedy an irregularity in connection with the extension, renewal or service of a writ, the broad discretion normally available under that sub-rule must be exercised with care and caution. That is

(Page 16)

because O 7, r 1 embodies a clear policy which should not be subverted by mechanical resort to O 2, r 1. The policy in question is apparent from the time restrictions laid down by O 7, r 1 in regard to the validity of unserved writs, the finite periods for which the validity of unserved writs may be extended, and the finite period during which application may be made for such extensions. The reasons for the policy are obvious. It is undesirable to allow a plaintiff to issue a writ before the expiry of a limitation period and then to delay service for an indefinite period. Lengthy delays cause difficulties in the ascertainment of the truth. It is unfair to require potential defendants to contemplate potential litigation indefinitely. The unfairness stems from the uncertainty and concomitant financial and other burdens that would be the consequence. As Young CJ (with whom Kaye and Southwell JJ agreed) said in Ramsay v Madgwicks [1989] VR 1 at 5, "it is not right that people should be left in ignorance of proceedings that have been taken against them if they are here to be served". Finally, the proper administration of the court would be hampered if writs could be issued and then left to lie dormant for indefinite periods."

"50. … But before power under O 2, r 1 may be so exercised, it must be established that, without such remedial relief, injustice will occur. The application should only be granted when the justice of the case requires a departure from the policy underlying O 7, r 1."

38 I have come to the conclusion that because the writ in this case does not need to be extended for a period of more than 12 months at any one time and because O 7 r 1(2) allows, subject to the court's discretion, for the application to be made at a date later than the day on which the writ expires, there is no need for the plaintiff to rely on O 2 r 1 or O 3 r 5. However, in exercising the discretion whether the application to extend the validity of the writ should be allowed to be made 11 months after the day on which the validity of the writ expired, I take into account the above directions given by Ipp J in Brealey v Board of Management Royal Park Hospital (supra).

39 Once all time limits imposed by O 7 r 1(2) have been complied with the court has a wide and unfettered discretion in deciding whether the

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extension of the validity of the writ should be granted and this discretion is to be applied to see that justice is done. In exercising this discretion a court is to have regard to the "balance of hardship": Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561 at 575.

40 In exercising the discretion the focus of attention should not be confined to the plaintiff's explanation for not serving the writ on time. The factors that impinge on the balance of hardship are many and varied: Bell Group NV (In Liq) v Aspinall (supra) at 575. In Brealey v Board of Management Royal Park Hospital (supra) Ipp J summarised the factors impacting upon this decision as follows at 91, [52]:

"52 In Van Lee Australia Pty Ltd v Palace Shipping KK it was held that the discretion to renew a writ after a limitation period has expired should be exercised by reference to the general justice of the case taking into account all the relevant circumstances. These would include not only the provisions of any limitation statute applicable but also the relative hardships which a grant or refusal of renewal would impose upon the parties. Relevant factors include the length of the delay, whether the delay was caused by mistake and whether such mistake is excusable, the nature of attempts made at service, and the hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting it. This approach was adopted in Bell Group NV (In liq) v Aspinall (1998) 19 WAR 561, the court observing (at 575) that, under O 7, r 1(2), it has a wide and unfettered discretion to see that justice is done."

41 I shall first of all deal with the question whether the plaintiff should be given leave to bring the application for the extension of the writ of summons approximately 11 months after 16 December 2005. The affidavit by Mr Potter does not directly address the issue why this application was brought so late. It appears that the plaintiff's solicitors were not aware that the writ of summons had not been served within 12 months of its issue and only directed their mind to the status of the plaintiff's claim and realised their mistake when the plaintiff telephoned on 8 June 2006 to find out how her claim was progressing. It further appears that the plaintiff's solicitors did not initially realise that the writ had been validly issued and that an application pursuant to O 7 r 1(2) was the appropriate step to extend the validity of the writ and allow service to take place. Instead the plaintiff's solicitors approached the defendants' solicitors to try and settle the plaintiff's claim on an informal basis and
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then raised the question of again obtaining the second defendant's consent pursuant to s 47A of the Act. It is also not explained in the affidavits whether the plaintiff's solicitors took any steps between 28 September 2006, when the defendants' solicitors indicated that the second defendant would not provide his consent, and 13 November 2006, when the application for leave to commence proceedings pursuant to s 47A(3)(a) and the application to extend the validity of the writ were filed with this Court. Counsel for the plaintiff indicated from the bar table that the affidavits were served on the defendants' solicitors on 28 October 2006 and that the defendants' solicitors had refused to waive the 14 day notice period imposed by s 47A(3)(c) of the Act which applies to the bringing of an application to the court for leave pursuant to s 47A(3) of the Act.

42 There is clearly substantial criticism that can be raised with regard to the conduct of the plaintiff's solicitors in allowing the time for service of the writ to expire and with regard to the delay in bringing the application for the validity of the writ to be extended as soon as their mistake was discovered on 8 June 2006. On the other hand, it does not appear that the fact that the writ had not been served in time was initially of concern to the defendants' solicitors. When the defendants' solicitors wrote to the plaintiff's solicitors on 23 August 2006 in response to the latter's correspondence of 14 June 2006, they did not raise any concern that a writ had not been issued or not been served, but indicated that they were prepared to enter into informal discussions on a without prejudice basis. The defendants' solicitors appear to have been more concerned to obtain detail of the plaintiff's allegations of negligence, copies of expert reports and the plaintiff's settlement submissions.

43 The failure by the plaintiff's solicitors to serve the writ within a period of 12 months after its issue was clearly an oversight which should have been remedied by bringing this application immediately after the mistake was discovered in June 2006. However, although this is not explained in the affidavit by Mr Potter, it appears that the plaintiff's solicitors where initially of the impression that the writ of summons no longer had any validity and that an application pursuant to s 47A(3)(a) would have to be brought.

44 The question is whether the plaintiff herself should be penalised for the oversight by her solicitors and their delay in bringing the correct application. In the context of an application pursuant to s 47A of the Act or similar statutory provisions requiring notice to be given to the defendant within a certain period of time, it has been held that where a plaintiff has acted reasonably in employing a solicitor to attend to her

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claim, a subsequent failure by the solicitor to give notice or commence legal proceedings pursuant to the section ought not to be visited upon the plaintiff: Bligh v Minister of Health [2006] WADC 79 at [58]-[60]; Carter v State Housing Commission, unreported, DCt of WA; Library No 4606; 5 September 1995 at 3; Thorpe v Shire of Coolgardie (1995) 14 SR (WA) 133 at 135-136; and Quinlivan v Portland Harbour Trust [1963] VR 25 at 29-31.

45 Further, in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Franklyn J held the following at 202 in the context of delay by an appellant to enter the appeal for hearing:

"Viewing the appellant in isolation, its culpability was no more than the unknowing failure to comply with a rule of procedure. As was said by Barwick CJ, in Hall v Nominal Defendant (1966) 117 CLR 423 at 435, it is the litigant's failure to make action in time which must be satisfactorily explained, and that no matter that in some fields the client must suffer for his solicitor's acts done on his behalf, 'in this field the litigant is not necessarily … to be saddled with responsibility for all that his solicitor does or does not do'. The blamelessness of the client and the responsibility of the solicitor are material considerations: Sophron v Nominal Defendant (1957) 96 CLR 469 at 474".

46 In my view the above principles applicable to an application for leave pursuant to s 47A of the Act and the filing of a notice of appeal also apply to the failure by the plaintiff's solicitors to bring the application for leave to extend the validity of the writ in time. The failure by the plaintiff's solicitor was a failure to comply with a rule of procedure and it appears from the plaintiff's affidavit that she had no knowledge of this oversight by her solicitors. She had instructed her solicitors to proceed with her claim and was entitled to assume that they would do everything necessary to ensure that her case was properly progressed and that all necessary steps were taken. It further seems that the plaintiff was still struggling with various medical problems from late 2004 to early 2006 and the progress of her action may not have been at the forefront of her mind at that time. It would have been helpful if all of this was better explained in the affidavits filed on behalf of the plaintiff, but I accept that it was not due to any deliberate decision by the plaintiff to hold back her claim for tactical reasons that the writ was not served.

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47 In Brealey Brealey v Board of Management Royal Park Hospital (supra) at 91, [50] Ipp J held that the applicant should only be entitled to rely on O 2 r 1 of the Rules of the Supreme Court to allow an extension of a time limit imposed by O 7 r 1 where the "justice of the case" required this. In my view the same consideration should apply to the exercise of the court's discretion as to whether the plaintiff should be entitled to an extension for the time to bring an application for the validity of the writ to be extended.

48 The "justice of the case" also needs to be considered when the court exercises its discretion as to whether the validity of the writ should be extended pursuant to O 7 r 1 of the Rules of the Supreme Court 1971. I accordingly intend to consider what the justice of the case requires in the context of both questions, namely whether leave to bring the application out of time should be granted and whether the validity of writ should be extended.

49 In exercising the Court's discretion in order to see that justice is done, the Court is to have regard to the "balance of hardship". There is in my mind little doubt that the "balance of hardship" favours the plaintiff. If leave was not granted to bring the application out of time or to extend the validity of the writ, the plaintiff would be deprived of her claim. The plaintiff may still apply for leave to commence the action pursuant to s 47A(3)(a) of the Act, but under such an application the plaintiff would also have to persuade the Court that it would be "just" to grant her leave to bring the action. Further, the plaintiff may be entitled to sue her solicitors for negligence in not serving the writ on time, but she would then lose the advantage of proceedings brought against the defendants directly which entitle her to procedural steps such as discovery and interrogatories. If the plaintiff had to bring an action against her solicitors she would have to prove that she lost the chance of succeeding in an action against the defendants and may find it more difficult to establish that she had a 100 per cent chance of doing so. The plaintiff herself carries no blame in respect of the oversight and delay that occurred and took reasonable steps to instruct apparently competent solicitors. The plaintiff would be severely prejudiced if she lost the ability to progress the current proceedings.

50 The defendants submit that the prejudice that they would suffer is that they would have to defend a claim based on negligence during the post-operative care and treatment of the plaintiff which has only surfaced since October 2006 when the plaintiff's affidavit and draft statement of claim were first served upon the defendants' solicitors. The defendants

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submit that they may encounter difficulty in obtaining the necessary information from the medical practitioners and nursing staff employed by the Hospital where they now have to be contacted six years after the Operation. However, looking at a six year delay period is my view not the right approach to assess the prejudice suffered by the defendants. The defendants were advised of the plaintiff's claim as early as 23 June 2003. The letter from the plaintiff's then solicitors did not allege negligence during the post-operative care and treatment of the plaintiff, but stated that the Operation had resulted in oesophageal and gastric perforations. According to the affidavit by Ms O'Brien the defendants or their insurer made enquires at that time and were assured that the personnel involved in the Operation had provided statements or were available to give statements.

51 It further appears that the defendants' solicitors obtained all the medical records held by the Hospital in respect of the Operation and post-operative care. Counsel for the plaintiff argued that the defendants' solicitors must have had copies of all the medical records as they asked the plaintiff's solicitors for copies of the medical records from the Armadale Kelmscott Health Centre and would have not known that the plaintiff was referred to that hospital, but for a discharge note in the medical records. In any event, Counsel for the defendants admitted from the bar table that he had access as early as 2003 to all of the medical records pertaining to the Operation and the plaintiff's subsequent treatment and care in the Hospital.

52 The medical records pertaining to the plaintiff are attached to her affidavit. They appear to be very detailed and easily legible notes. They identified clearly, at least in the majority of instances, who the author of any particular note was and what his/her position was at the Hospital. It is also clear from these notes that there was concern about a possible oesophageal leak as early as 24 November 2000 and that there were repeated references to "free fluid" and "leakages" during the days following. A note on 8 December 2000 made apparently by the first defendant states that "endoscopy suggests erosion of gastric wall by band - laparotomy required".

53 In my view, it is surprising that the defendants' solicitors would not have made enquires from the first defendant and the other personnel referred to in the plaintiff's medical notes on the basis of the information contained in these notes. In my view it is reasonably to be expected that where the letter by the plaintiff's solicitors referred to oesophageal and gastric perforations and the medical notes indicate uncertainty about the

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cause of the free fluid and leakages and show that more than two weeks after the Operation a laparotomy was performed because endoscopy suggested erosion of the gastric wall by the band, the plaintiff's claim would not be confined to the Operation itself but also to the subsequent treatment and care. It may have been a different situation if the defendants' solicitors did not have copies of the medical records pertaining to the plaintiff. However, the notes certainly raise a number of questions. Further, in their letter to the first defendant, dated 14 May 2004, the plaintiff's solicitors clearly stated that they wanted the first defendant to answer a number of questions about the "complications" which the plaintiff experienced and the post-operative care which she received. If the medical notes kept by the Hospital did not make it clear that the plaintiff might have a potential claim with regard to the post-operative care and treatment received, the letter to the first defendant certainly foreshadowed this.

54 The defendants filed an affidavit by Ms O'Brien and Ms Jessie Thomas, an articled clerk employed by Lavan Legal assisting in the conduct of this matter on behalf of the defendants. Neither of these affidavits points to any particular prejudice that the defendants are likely to suffer, such as that a particular doctor is no longer contactable, if the plaintiff's claim is allowed to progress. Although the defendants' solicitors have known since 28 October 2006 that the plaintiff intends to rely in her proposed statement claim on the negligence by the first defendant and the employees and agents of the second defendant in administrating her post-operative treatment and care, the defendants' solicitors have apparently not tried to contact any of the specific personnel whose names appear clearly on the plaintiff's medical notes from the Hospital. Instead the affidavit by Ms O'Brien refers to 60 nursing staff and 15-20 doctors who may have been involved in the plaintiff's post-operative treatment and care. Counsel for the defendants conceded from the bar table that the first defendant was still available to assist in the preparation of the defendants' defence and that Dr Dominic Mallon, who had treated the plaintiff at the Immunology Clinic at Fremantle Hospital was still available.

55 I accept that some of the doctors who treated the plaintiff at the Hospital may no longer be easily contactable, but the question remains whether the plaintiff's solicitors are exclusively to be blamed for this. The defendants' solicitors had the opportunity to investigate the plaintiff's claim from June 2003 until August 2005 when they closed their file. Although I accept that the defendants' solicitors are likely to have thought that the plaintiff had abandoned her claim when no writ of summons was

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served in December 2004, the defendants cannot blame the plaintiff for making that assumption. The defendants knew that if the writ of summons had been issued on 17 December 2004 it could still be served until 16 December 2005. On 14 June 2006 the defendants' solicitors were advised that the plaintiff still intended to progress her claim. It was therefore for a period of approximately six months between 16 December 2005 and 14 June 2006 that the defendants' solicitors could have legitimately assumed that the plaintiff's claim was no longer being progressed. In my view, at least some of the prejudice that the defendants' solicitors complain about is of their own making.

56 Further, I do not accept that the defendants' solicitors did not know or should not have known prior to 28 October 2006 that a claim in respect of the post-operative care and treatment of the plaintiff was likely to be made. As indicated earlier, this appeared from the medical records and from the letter by the plaintiff's solicitors to the first defendant. It was also made clear in the very first letter from the plaintiff's solicitors, dated 23 June 2003, that the plaintiff's claim was not only against the first defendant, but also against the second defendant in respect of his vicarious liability for employees and servants of the Hospital.

57 I accept that the plaintiff's claim that she developed autoimmune haemolytic anaemia secondary to systemic lupus erythematosus and Sjogren's syndrome consequent B12 deficiency following the oesophageal and stomach perforations was not indicated in the letter sent to the second defendant on 23 June 2003. However, it appears that this medical condition was only diagnosed after April 2004. Further, once consent has been granted to the bringing of an action pursuant to s 47A(2) of the Act there is no reason why a plaintiff could not expand upon the particulars of negligence or the injuries suffered at least where this did not result in a new cause of action being pleaded. The allegations in the endorsement to the writ and in the draft statement of claim arise from substantially the same set of facts and the letter of 23 June 2003 already referred not only to the first defendant's negligence but also to the negligence of other staff and agents of the second defendants.

58 In my view the prejudice to be suffered by the defendants if the plaintiff's claim is allowed to proceed is relatively minor in comparison to the great hardship that it would cause the plaintiff if she could not continue the proceedings that she has already instituted. Accordingly, I find that the "balance of hardship" favours the plaintiff.

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59 Apart from the "balance of hardship" other factors that a court should consider in exercising its discretion are whether the provisions of any limitation statute are applicable, the length of the delay in serving the writ, whether the delay was caused by mistake, whether this mistake is excusable and the nature of attempts made at service: Brealey v Board of Management Royal Park Hospital (supra) at 91, [52]. The plaintiff's claim is not statute barred, as a period of six years from the date of the Operation has not yet expired. There is accordingly no accrued right by the defendants to rely on the statutory limitation period imposed by s 38(1)(c) of the Act. The limitation period required by s 47A of the Act has also been complied with as the defendants have given their consent pursuant to s 47A(2) and the proceedings were commenced within the time stipulated in the condition imposed by the defendants to their consent.

60 On the other hand, the delay in serving the writ and making an application for the extension of the validity of the writ is approximately 11 months which is considerable. There is also the delay of approximately five months after the plaintiff's solicitors became aware of their oversight and prior to the filing of this application on 13 November 2006. The delay in serving the writ was clearly caused by an inadvertence and not by any deliberate decision by the plaintiff or her solicitors. I do not regard such inadvertence as "excusable", although an oversight to serve a document within the time frame allowed by the Rules of the Supreme Court 1971 is unfortunately not a rare incident. It also appears that the plaintiff's solicitors tried to resolve the problem by arranging for an informal conference to take place rather than indicating to the defendants' solicitors at the first opportunity that they had made a mistake in failing to serve the writ and asking for the defendants' consent to an application to extend the validity of the writ for purposes of service.

61 However, whereas the delay was considerable and the rectification of the mistake, once discovered, could have been handled better, the main consideration is that the delay was not caused by any deliberate decision and that the plaintiff had instructed her solicitors to progress her matter and trusted them to take all reasonable and necessary steps required. In light of all the relevant factors and particularly the "balance of hardship" I have come to the conclusion that the plaintiff should have leave to bring the application out of time and to have the validity of the writ extended for purposes of service until 16 December 2006. Such orders would be in the interest of justice.

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Application for leave pursuant to s 47A(3) of Limitation Act 1935

62 As the first application has been granted, it is not necessary for this Court to give a decision on the application for leave to institute an action pursuant to s 47A(3) of the Limitation Act 1935. Counsel for the plaintiff indicated that the latter application was to be discontinued if a favourable outcome was achieved in the first application.