Waller v Flinders Medical Centre and Burns (No 1) No. DCCIV-98-1796

WALLER v FLINDERS MEDICAL CENTRE and BURNS (NO 1)
[2004] SADC 45
Judge Lunn
Civil
REASONS ON APPLICATIONS TO STRIKE OUT AND TO AMEND

In this action the plaintiff now claims damages for medical negligence. The statement of the facts in the succeeding paragraphs is taken from a printout of the record of the Court, various documents on the Court file and facts put forward from the bar table which were not disputed.
On 9 December 1998 the plaintiff issued an inter partes summons against the defendant, Flinders Medical Centre, seeking an order for discovery of documents before action under Rule 60.01(1)(b). (The summons referred to Rule 60.01(1)(a), but that was clearly a mistake.) There was nothing endorsed on the summons about any extension of time under Section 48 of the Limitation of Actions Act 1936 (“the LAA”). The summons was supported by an affidavit of the plaintiff’s solicitor deposing to the plaintiff’s dealings with the Flinders Medical Centre and her medical problems. On 23 December 1998 an appearance was filed by Flinders Medical Centre.
The summons came on for hearings before Masters in chambers on many occasions and was adjourned to subsequent dates. No further documents were filed. On a date which I do not know the plaintiff obtained the documents which she was seeking from the defendant and no order was ever made for discovery before action under Rule 60.01(1)(b).
On 10 September 1999 an adjourned hearing of the summons came on before a Master who apparently with the concurrence of solicitors for both parties directed that the plaintiff file and serve a statement of claim within five weeks. The order is ambiguous as to the subject matter of the statement of claim. In theory it could have been a statement of claim relating to the issue of discovery before action, but that would be a most unusual direction to be given in proceedings under Rule 60.01(1)(b). It is more likely to have referred to a statement of claim of the plaintiff’s cause of action for medical negligence. If not at this point, certainly later, the solicitors involved impliedly accepted that the plaintiff’s substantive claim for damages could be pursued in this action which had been commenced for the purpose of pre-action discovery. The Court continued to adjourn the summons but no statement of claim was filed. (By 1 June 2000 the proceedings had been before Masters on fifteen separate occasions.)
On 29 September 2000 a Master made the following fiat:
“Order – Amendment of Pleadings
1.     Action to remain as originating process.
2.     Plaintiff to file and serve statement of claim within 28 days.
3.     Time for defence to be filed and served extended for 28 days. …”
I do not understand what was meant by “Action to remain as originating process”. I will come back to it later.
On the next hearing on 13 November 2000 a Master made the following fiat:
“NOTE
1.     Defendant served with application …
2.     Plaintiff needs leave because this action for pre-action discovery is treated as action (by Registry).
ORDER
1.     To the extent that it is necessary leave to plaintiff to join Richard Burns as a defendant to these proceedings, from 10.11.00.
2.     Plaintiff to file Statement of Claim by 27.11.00.
3.     Defendant has 1 month for Defence. …”
The plaintiff’s solicitors did not make any amendment to the summons to give effect to the joinder of Burns. They did not serve him with the summons. I infer that at about this time there were communications between the plaintiff’s solicitors and solicitors acting for Burns, but I have no details of them.
On 8 August 2001 the plaintiff’s solicitors filed the first statement of claim. It improperly showed Burns as a second defendant and pleaded a cause of action against him. It claimed extensions of time under s48 of the LAA (wrongly described as s28) to institute the proceedings against both defendants. It bore the certificate required under Rule 46.04(1)(g) of Nicole Kelly that the pleading complied with the Rules concerning pleadings. It was agreed that it was served on the defendants’ solicitors on 16 August 2001.
No appearance was filed by Burns, or ever has been filed by him. On 23 January 2002 solicitors acting for both Flinders Medical Centre and Burns filed a joint defence for them. It bore a certificate under Rule 46.04(1)(g) by Allison Fitzgerald that it complied with the Rules concerning pleadings. No point was taken about the use of the action commenced for pre-action discovery being utilised to pursue the claim for damages for medical negligence or that Burns had been improperly named as a defendant when the necessary steps for his joinder had not been carried out. This defence denied the claims for extensions of time under s48 of the LAA, but it did not plead that any cause of action was barred under s36 of the LAA.
There were many further directions hearings before Masters. On 30 January 2003 an amended statement of claim was filed and on 31 March 2003 an amended defence was filed. The plaintiff was pressing for an early trial of the action. Because of the substantial estimated length of the trial the question of its listing was referred to the Chief Judge who assigned it to a judge (initially not myself) as a long trial.
On 24 February 2003 the plaintiff’s solicitors filed a certificate of readiness for trial but it was not signed. They also filed an application at about that time that the requirements of Rule 74A.04 in relation to the filing of a certificate of readiness for trial be dispensed with. At a directions hearing on 3 march 2003 a Master gave numerous directions and adjourned the application about the certificate for readiness. As far as I can ascertain no order was ever made dispensing with the certificate and no order was ever made referring the action for trial as was required by Rule 74A.02. (Hence Rule 67.01(6) requiring leave for further interlocutory applications after reference for trial cannot apply in this action.)
In about August 2003 the trial of the action was specially set to commence on 2 March 2004. On 18 November 2003 I directed that the trial commence on 2 February 2004, but only to take the plaintiff’s opening and evidence from a witness who was about to go overseas.
In the course of the plaintiff’s opening on 2 February 2004 I raised with counsel that the summons did not contain the endorsement required by s48(4) of the LAA, which reads:
“Where an extension of time is sought pursuant to this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section.”
The plaintiff then purported to amend the summons by filing a further copy of it bearing a handwritten endorsement under s48(4). No leave was given for this amendment. After the defendants challenged its validity counsel for the plaintiff properly conceded that it was of no effect and I ignore it.
When the trial resumed on 2 March 2004 each party sought to bring a number of interlocutory applications on before me. Several days of trial time were lost while I resolved these applications. They were matters which could, and should, have been dealt with by Masters before the matter was referred for trial. Rules 2.05 and 67.01(6) were set up to avoid trials being delayed in this way. I will pursue the issue further in due course when dealing with the costs of the interlocutory applications.
At the resumption of the trial on 2 March the defendant’s counsel foreshadowed that he would contend that the proceedings were a nullity. Rule 60.01(1)(b), under which the summons was issued, refers to “seeking such an order against another person where both are likely to be parties to subsequent proceedings”. Rule 60.02(a), referring to such proceedings, states “the applicant and the person against whom an order is sought both appear to the Court to be likely parties to subsequent proceedings”. Clearly Rule 60 envisages that proceedings for pre-action discovery will be anterior to, and distinct from, subsequent proceedings for any substantive cause of action. There is English authority that plaintiffs under its equivalent of Rule 60.01(1)(b) have no right to an order for pre-action discovery where they intend to pursue an action for substantive relief irrespective of what is ascertained from any documents discovered by the defendant: Shaw v Vauxhall [1974] 2 All ER 1185. There is no rule which allows an action for pre-trial discovery to be utilised subsequently for the substantive action between the same parties. It is clearly at least a substantial irregularity to do so. However, in the end result counsel for the defendants did not press that it amounted to a nullity.
It is regrettably unclear what circumstances can give rise to an action being a nullity as distinct from being merely irregular or voidable. I do not agree with the author of paragraph [15] of the Laws of Australia, Volume 5.6, where it is stated that all defects in actions in this State are to be treated as irregularities. Rule 3.05(1) does not have such a wide-ranging effect. The English decision relied upon of Harkness v Bell’s Asbestos & Engineering Ltd [1967] 2 QB 729 was based on a somewhat broader rule. If Rule 3.05(1) had abolished all nullities, Rules 3.02 and 3.03 would seem to be superfluous where they abolish nullities in particular situations. However, while there may be some situations which would make actions nullities they are rare and of small compass: Griffiths v ANZ Banking Group Ltd 83 SASR 491 at 499. An improper use of a summons instituted under Rule 60.01(1)(b) does not make the subsequent use of that action for a substantive claim a nullity as it is an object which could have been legitimately achieved by the use of other Rules.
The defendants’ application of 3 March 2004 sought to have each step, and the statement of claim, in the action struck out as an abuse of process pursuant to Rule 3.04(e). The crux of the defendants’ complaint was that the procedure adopted both in using the action for the substantive claim and in the unauthorised joinder of Burns were outside of what was allowed by the applicable Rules. The designation of “abuse of process” is somewhat nebulous and generally of modern origin. It can encompass a multitude of different types of irregularities and defects: see generally Civil Procedure SA, [R3.04.30(2)].
Rule 3.05 lays down particular procedures which are to be followed where steps in an action are not in accordance with the applicable Rules. It provides:
“3.05(1) Non-compliance with any of the Rules does not render a proceeding or a step in a proceeding void.
(2) Where proceedings do not, or any step in proceedings does not, comply with the provision of any applicable Rule, any other party may apply to set aside the proceedings or the step in proceedings, as the case may be.
(3) Any application to set aside shall be made within ten days after the receipt of the proceeding or the step which is claimed to be not in compliance with any applicable Rule.
(4) If on the hearing of the application the proceeding or the step as the case may be is shown to be not in compliance with any applicable Rule, the Court may make such order as it thinks just to ensure that such proceeding or step does thereafter comply with the Rule.”
The restrictions in this rule cannot be out-flanked by categorising the irregularities or defects as “abuse of process”. If the crux of the complaint is that a step in proceedings does not comply with the applicable rule, then the Court should only act in accordance with Rule 3.05. Here that is the crux of the defendants’ complaints on the use of the action for the substantive claim and on the joinder of Burns. The plaintiff could have achieved her objectives legitimately by using procedures in other Rules, but she did not do so.
When I pointed out in argument that the defendants might have to proceed under Rule 3.05 their counsel belatedly sought an extension of time under Rule 3.05(3). No evidence was put forward to explain why it took the defendants until the commencement of the trial to raise the points. Clearly the intent of Rule 3.05(3) is to have the issues dealt with promptly upon the irregularities coming to the notice of the other party. There is a strong inference here that for at least three years the defendants knowingly acquiesced in the plaintiff’s irregular procedures of which they now complain. Apart from possible issues under s48 of the LAA the defendants have not shown they have suffered any prejudice from the irregularities. Accordingly, the time will not be extended and no step in the action is to be set aside as a result of what has occurred. Nevertheless, they are serious irregularities and they are not to be precedents which should be followed as in other circumstances it may be that steps in the actions would be set aside under Rule 3.05(2) as irregularities.
The plaintiff seeks the following orders in paragraphs 3, 4 and 5 of her application of 3 March 2004:
“3.Leave to amend the Inter Partes Summons dated 9 December 1998 by deleting the words ‘an order for discovery and production of all notes, investigations, reports and letters relating to the Plaintiff’s condition detailed in the attached affidavit’ and substituting therefor the words ‘an order for damages in consequence of the breach of duty of the First and Second Defendants and the First Defendant’s vicarious liability for the actions of the Second Defendant’.
4.Leave to amend the Inter Partes Summons dated 9 December 1998 by deleting the words ‘This summons is brought pursuant to Rule 60.01(1)(a) of the District Court Rules.’
5.Leave to amend the Inter Partes Summons dated 9 December 1998 by adding the endorsement ‘The Plaintiffs seek an extension of time within which to institute the proceedings herein pursuant to Section 48 of the Limitations of Actions Act.’”
I do not accept that the fiat of the Master of 29 September 2000, as quoted above, had the effect of permitting the plaintiff to use the action brought under Rule 60.01(1)(b) to pursue her claim for medical negligence. It is meaningless. There is only “one action” as that term is defined in DCR5. I am not prepared to read “Action” as “Summons”. So that there can be no doubt about it, under Rule 3.04(f) I revoke that fiat.
There is no difficulty in acceding to the plaintiff’s applications to amend in paragraphs 3, 4 and 5. The defendants have clearly acquiesced in the action proceeding on this basis. While the Court has power to make such amendments it should only be done upon terms which make them fair to the defendants. (I do not need to consider what would sometimes be a complicating factor of a final order having been made under Rule 60.01(1)(b) which might raise whether the Court was functus officio.)
The complication here is the plaintiff’s claims for extensions of time under s48 of the LAA. Under s48(3)(b) the Court is only to extend time for instituting an action if the plaintiff shows that her action was instituted within twelve months after the ascertainment of material facts. Thus the date of the institution of the action for the otherwise statute barred cause of action can be of crucial importance as the qualifying facts must have been ascertained within a twelve month period prior to the date of institution. Here the action, when commenced, was not seeking relief for the causes of action which are now being pursued and did not, and could not, make any claim for an extension of time under s48. In fairness to the 1^st defendant the amendments should only be allowed upon terms which put it in no worse position than if the plaintiff had instituted a fresh action instead of converting the existing action into a new action for the cause of action in negligence. I infer any new action for the substantive claim could not have been commenced before the first statement of claim was filed. This result can be achieved by recognising that the filing of the first statement of claim on 8 August 2001 was an invalid procedure, and under Rule 3.04(c) retrospectively validating the filing of that statement of claim and the subsequent steps in the action upon condition that the action is only to be deemed to have commenced at the date of the service of that statement of claim on 16 August 2001. Subject to the terms of this validation, leave will be given to amend in the terms of paragraphs 3, 4 and 5 of the application, but upon a term that the amendments are not to relate back to the actual institution of the action on 9 December 1998, but only back to 16 August 2001: Brook v Flinders University of SA (1988) 47 SASR 119.
By paragraph 2 of its application of 3 March 2004 the plaintiff sought:
“2.Leave to amend the Inter Partes Summons dated 9 December 1998 to add Richard John Burns as a Defendant.”
In the course of his submissions the plaintiff’s counsel expanded this application to both a joinder of Burns and for leave to make the consequential amendments to the summons.
The fiat of the Master made on 13 November 2000 joining Burns, as quoted above, was misconceived in the addition of a limiting date of 10 November 2000. Under Rule 28.05 it is provided:
“Every person who is added as a defendant should be served with the amended summons … and the proceedings as against such party shall be deemed to have begun as from the date of such service being effected.”
The Master did not purport to dispense with that rule. His fiat was contrary to it in that the service on Burns could not have been effected before the joinder was made. Again the safe course is to revoke that fiat under Rule 3.04(f). However, in any event I do not consider that it resulted in an effective joinder of Burns as an additional defendant in the action. Implicit in the leave to join Burns was ancillary leave to make the necessary consequential amendments to the summons to name Burns and to provide for its service upon him. Under Rule 53.12 those amendments had to be made within fourteen days of the making of the fiat. As they were not made the right to amend lapsed. Likewise the leave for joinder lapsed through the failure of the plaintiff’s solicitors to perfect the joinder pursuant to the Rules. Nevertheless, he has been treated by all other parties as being a de facto defendant.
Again there is a significant issue in relation to the claims under s48 for an extension of time in respect of the claims against Burns about the date of the institution of the proceedings against him. Rule 28.05, which would otherwise govern that date, does not operate because Burns was never served. Under Rule 12.01(c) a summons is deemed to have been duly served where the plaintiff proves that the summons, although not personally served, has actually been received by the defendant. No evidence was put forward as to when Burns first was aware of the claim against him or that he was being treated as a defendant in the action. However, it must have been by no later than 16 August 2001 when the first statement of claim was served on the solicitors who represented him in the action. Again in fairness to the defendant Burns the amendment sought should not be allowed so that the limiting date for the twelve month period under s48 of the LAA in relation to the claim against him would operate from an earlier date than would have been the case if the summons had been amended pursuant to the leave of 13 November 2000 and he had then been duly served with it. Again this result can be achieved by holding that his purported joinder was invalid, but validating it retrospectively under Rule 3.04(c) upon condition that the action is deemed to have commenced against him on 16 August 2001. Leave to amend to name him as a defendant will be allowed on this basis and upon a term that it only relates back to that date.

The plaintiff can pursue a claim for damages against Burns if she wishes to do so. It may be her claim against the Flinders Medical Centre will fail. I do not accept the defendants’ submission that this amendment should not be allowed because it is of no utility.
The plaintiff’s application to join her husband was by consent.
I will hear the parties on any consequential amendments to the pleadings. I have not yet had an application from the defendants for leave to amend their defence to plead expressly s36 of the Limitation of Actions Act 1936.
Although it probably follows from the orders which I have made, I direct that under Rule 46A.01(1), Rule 46A is to apply to all further pleadings in this action.

For these reasons a fiat was made on 8 March 2004:
1. The application of the defendants of 3 March 2004 is dismissed.
2. The question of the costs of that application is reserved.
(The following orders are made on the plaintiff’s application of 3 March 2004.)
3.The fiat of 29 September 2000, insofar as it provided “Action to remain as originating process”, is revoked.
4.The fiat of 13 November 2000 insofar as it provided leave to join Richard Burns as a defendant to these proceedings from 10/11/00, is revoked.
5.The invalidity of the use of this action to pursue the plaintiff’s claim for damages against both defendants is validated retrospectively under Rule 3.04(c) by validating the action on and after 16 August 2001, and upon condition that the validated action is deemed only to have commenced on 16 August 2001.
6.Leave to the plaintiff to amend the summons as sought in paragraphs 3, 4 and 5 of her application, but the amendments are to relate back only to 16 August 2001.
7.The invalidity in the joining of the 2^nd defendant is retrospectively validated under Rule 3.04(c) as a proceeding against him as and from 16 August 2001, and upon condition that the validated action against him is deemed only to have commenced on 16 August 2001.
8.Leave to the plaintiff to amend the summons to name Richard John Burns as an additional defendant, but this amendment is to relate back only to 16 August 2001.
9.Service of the amended summons on the 2^nd defendant is dispensed with, and insofar as it is necessary to do so the provisions of Rule 28.05 are dispensed with as to the date of service upon the 2^nd defendant.
10.By consent, that Kenneth James Waller be joined as a 2^nd plaintiff to the validated action and leave to amend the summons to make the necessary amendments.
11.Time for making all amendments for which leave has been given by this fiat abridged to 5pm on Tuesday, 9 March 2004.
12.Rule 46A is to apply to all further pleadings in this action.
13.Under Rule 74A.02 this action, as validated, is to proceed to trial.
14.Questions of the costs of the plaintiff’s application of 3 March 2004 and the amendments reserved for further consideration.

[2004] SADC 45

10 March 2004