Winstanley v Natalwala
[2023] WASC 92
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WINSTANLEY -v- NATALWALA [2023] WASC 92
CORAM: REGISTRAR GRIFFIN
HEARD: 7 FEBRUARY 2023
DELIVERED : 23 MARCH 2023
PUBLISHED : 23 MARCH 2023
FILE NO/S: CIV 1424 of 2022
BETWEEN: SARAH WINSTANLEY
Plaintiff
AND
JAY NATALWALA
Defendant
Catchwords:
Application to extend limitation period commenced by originating summons ‑ Whether should have been commenced by writ of summons ‑ Defendant's application to convert originating summons to writ of summons ‑ Turns on own facts
Legislation:
Accident Compensation Act 1985 (Vic)
Limitation Act 2005 (WA)
Property Law Act 1969 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Defendant's application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | R D McCabe |
| Defendant | : | H Cormann |
Solicitors:
| Plaintiff | : | AJB Stevens Lawyers |
| Defendant | : | Avant Law |
Case(s) referred to in decision(s):
Ame Hospitals Pty Ltd v Dixon [2015] WASCA 63; (2015) 48 WAR 139
Corruption v Crime Commission v McCusker AO QC [2009] WASC 44
Hastings v Hastings [2020] WASC 209
Martin-Smith v Woodhead [1990] WAR 62
Maurice Blackburn v Brown [2011] HCA 22
Mullaley v State of Western Australia [2020] FCA 13
Wardley Australia Ltd v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514
REGISTRAR GRIFFIN:
This application
This is the defendant's application, originally lodged on 22 September 2022, amended by consent on 16 January 2023 seeking orders that:
1.the originating summons filed on 2 May 2020 to be treated in all respects as if it were a Writ generally endorsed, and the proceedings to continue in all respects as if commenced by Writ,
2.the plaintiff do file and serve a statement of claim with 3 weeks after the date of these orders,
3.the defendant to file and serve a defence within 14 days after receipt of the statement of claim,
4.the cost of the application be in the cause, or
5.in the alternative to orders 1 to 4 herein, the originating summons filed 2 May 2020 to be set aside or struck out, and the plaintiff do pay the costs of the proceeding.
The originating summons to which the defendant refers is the plaintiff's originating summons dated 2 May 2022 seeking orders for an extension of the limitation period applicable to her claim against the defendant, pursuant to s 39 Limitation Act 2005 (WA) (Limitation Act).
Background
The plaintiff proposes a civil action for damages for personal injuries arising from two surgical procedures performed on the plaintiff by the defendant in 2011 and 2013.
The Limitation Act provides for a general limitation period of three years for personal injuries claims. The plaintiff seeks an extension of that limitation period pursuant to s 39 Limitation Act. There is no agreement as to when, or if, the limitation period applicable to the plaintiff's claim expired.
Applicable law
This application requires consideration of the Limitation Act and the Rules of the Supreme Court 1971 (WA) (RSC).
The Limitation Act relevantly provides:
14.Personal injury, Fatal Accidents Act 1959 actions ‑ 3 years
(1)An action for damages relating to a personal injury to a person cannot be commenced if 3 years have elapsed since the cause of action accrued.
39.Court may extend time to commence actions for personal injury or under Fatal Accidents Act 1959
(1)A plaintiff may apply to a court for leave to commence an action for damages relating to a personal injury to a person even though the limitation period provided for under this Act has expired.
(2)…
(3)On an application a court may extend the time in which the action can be commenced if the court is satisfied that, when the limitation period expired, a person to whom the cause of action accrues ‑
(a)was not aware of the physical cause of the death or injury;
(b)was aware of the physical cause of the death or injury but was not aware that the death or injury was attributable to the conduct of a person; or
(c)was aware of the physical cause of the death or injury and that the death or injury was attributable to the conduct of a person but after reasonable enquiry, had been unable to establish that person's identity.
43.Jurisdiction and procedure
(1)Subject to subsection (2), an extension application is to be made by summons in the jurisdiction in which —
(a)the existing action, if any, has been brought; or
(b)the proposed action would be brought if the application were successful,
as is relevant to the case.
Rules of the Supreme Court
This application hinges on the application of O 58 (proceedings to be commenced by originating summons) and O 59 (proceedings in chambers). Those orders relevantly provide:
Order 58 RSC
1.Which proceedings to be commenced by originating summons
Subject to the provisions of any Act and of these rules, civil proceedings between parties, which may be heard in chambers, must be commenced by originating summons.
27.Directions as to hearings, evidence etc.
(1)If an originating summons is not disposed of altogether on the first hearing thereof, the Court shall give such directions as to the further conduct of the proceedings as it thinks best adapted to securing the just, expeditious, and economical disposal thereof.
(2)The Court shall, as early in the proceedings as appears to it to be practicable, consider whether there is or may be a dispute as to fact, and whether it is expedient to hear the summons on oral evidence or mainly on oral evidence, and if it thinks fit may order that no further affidavits shall be filed and that the summons shall be heard on oral evidence, or partly on oral evidence and partly on evidence by affidavit with or without cross examination of any deponent, as it may direct.
Order 59 RSC
1.Business to be dealt with in chambers
(1)The business to be disposed of in chambers shall consist of ‑
(a)…;
(b)…;
(c)applications which by these rules or any Act may be heard in chambers;
3.Applications in chambers
(1)If these rules do not require or authorise an application in chambers to be made in some other manner ‑
(a)an application to commence proceedings in chambers must be made by originating summons; and
(b)any other application in chambers must be made ‑
(i)if it is ex parte, by motion; or
(ii)in any other case, by summons.
Evidence
Each party filed three affidavits, annexing notes of medical practitioners, in this matter:
On behalf of the plaintiff
1.Sarah Jacqueline Winstanley sworn 29 April 2022 (Winstanley affidavit 29 April 2022);
2.Sarah Jacqueline Winstanley sworn 14 October 2022 (Winstanley affidavit 14 October 2022);
3.Qiming Zhou sworn 1 February 2023 (Zhou affidavit 1 February 2023).
On behalf of the defendant
1.Morag Donaldson Smith affirmed 21 September 2022 (Smith affidavit 21 September 2022);
2.Morag Donaldson Smith affirmed 21 September 2022 (Smith affidavit (No 2) 21 September 2022);
3.Morag Donaldson Smith affirmed 11 January 2023 (Smith affidavit 11 January 2023).
The plaintiff deposed that she was not aware of the matters which would enliven the discretion of the Court to extend time pursuant to s 39(3) Limitation Act until she received the report of Dr O'Connor on 9 October 2021.[1]
[1] Winstanley affidavit 29 April 2022 [98].
Submissions
There is no real dispute between the parties as to the applicable law or principles regarding originating summonses and writs of summons. The dispute is as to whether, on the materials before the Court, this application should be commenced by way of originating summons or writ of summons.
The defendant filed supporting submissions on 30 January 2023 (defendant's submissions).
The plaintiff filed responsive submissions on 2 February 2023 (plaintiff's submissions).
The defendant's submissions
The defendant's principal contention is that there are significant disputes of fact which cannot be resolved under the originating summons process.
Taking into accounts the requirements of s 39(3) Limitation Act, the following issues must be determined:[2]
a.date of accrual of the cause/s of action, and date of expiry of the limitations period,
b.what is the plaintiff's injury and what is the physical cause of the injury,
c.whether at the time of expiry of the limitations period, the plaintiff aware of the physical cause of her injury,
d.whether at the time of expiry of the limitations period, the plaintiff aware that it was attributable to the conduct of the defendant, and
e.if the answer to either 23(c) or (d) is 'no', when the plaintiff did become aware, or when the plaintiff ought reasonably have become aware, of those things.
[2] Defendant's submissions [23].
The defendant submits that the court will be charged with making findings on all those matters in the absence of discovery, witness outlines, oral evidence and examination, interrogatories, and the other usual interlocutory steps available in civil litigation.
The defendant refers to several matters with respect to the substance of the application including medical evidence and gaps in that medical evidence. He also refers to communications from the plaintiff's lawyers (over which the plaintiff has waived legal professional privilege), not currently before the court, relevant to the matters falling for determination under s 39(3) Limitation Act.
In oral argument, defendant's counsel conceded that the RSC contain several provisions which would allow subpoenas, discovery, cross‑examination, filing of opposing affidavits and interrogatories. These are set out in par 43 of the plaintiff's submissions which are to the effect that the defendant could:
(a)File and serve an affidavit of his own to challenge her version of events.[3] He has (so far) made the deliberate forensic decision to not advance any evidence beyond an affidavit of his solicitor that attaches selected documents.[4] It is noted that the Plaintiff's solicitor has supplied to the Defendant's solicitor extensive records in response to the Defendant's submissions at [34] and [36]. The Plaintiff only needs to give evidence to matters that are relevant, but given the Defendant's submission, the Plaintiff wanted to make clear that it provided records that cover, for example, the period mentioned in [34] of the Defendant's submissions to the Defendant.[5]
(b)Apply to cross-examine the Plaintiff.[6]
(c)Adduce evidence either by affidavit, or by applying for oral evidence from Dr Tsokos, Dr Lekha, Dr Veronikis or any other witness he deems necessary[7] (which to an extent the Defendant already intends to do by adducing medical reports and records that are attached to Morag Smith's affidavit in response to Originating Summons sworn 21 September 2022).[8]
(d)Apply for directions and/or orders for the production of documents (including by subpoena).
(e)Apply for leave to administer interrogatories on the Plaintiff.[9]
[3] RSC O 58 r 29(c).
[4] Smith affidavit 21 September 2022.
[5] Zhou affidavit 1 February 2023.
[6] RSC O 26 r 2(3), O 58 r 21 and r 27(2).
[7] RSC O 58 r 21, r 27(2) and r 29(c).
[8] RSC O 4A r 2, O 58 r 27(1) and r 29(d).
[9] RSC O 4A r2, O 58 r 27(1) and r 29(d).
It was said by the defendant that those steps were not normally ordered in proceedings commenced by originating summons. It would make a mockery of the originating summons process were those provisions to be used in this matter.
It was also said that it was not appropriate to dispose of this matter in chambers when there was no agreement as to whether, or if so, when, the limitation period had expired.
The defendant noted that Justice Colvin in Mullaley v State of Western Australia [2020] FCA 13 (Mullaley) held,[10] relying upon the High Court decision in Wardley Australia Ltd v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514 (Wardley):
It is well-established that it is undesirable for limitation questions that depend upon contested factual issues to be decided in interlocutory proceedings in advance of a hearing of the action, except in the clearest of cases.
[10] Mullaley [10].
It is said that this is not such a case.
The defendant says that the extension application decision will be a final decision. That will give rise to an estoppel, relying upon the High Court in Maurice Blackburn Cashman v Brown [2011] HCA 22 (Brown).
It is a necessary condition for an issue estoppel to exist between parties that the decision from which the estoppel arises is a final decision.
The High Court held in Brown that no estoppel arose.[11] The defendant says that Brown can be distinguished because it related to the specific provisions of the Accident Compensation Act 1985 (VIC).
[11] Brown [41].
It was submitted that the decision on the originating summons would be final 'because it allows [the plaintiff] to have leave to commence the proceeding'.[12]
[12] ts page 19.
Directions for further evidence would not cure the deficiencies in the process. Whilst it was theoretically possible for the defendant to seek to adduce evidence from treating medical practitioners as to their conversations with the plaintiff, there was no certainty as to whether the medical practitioners would agree to provide such evidence, or indeed, could, provide that evidence on affidavit given obligations of confidentiality.
It was also submitted that there was a significant overlap between issues to be decided on the limitation extension application and on the substantive action. Evidence as to pain, for example, is relevant to the question of both limitation and damage.
It was contended that a Registrar had the power to order that a matter commenced by originating summons be treated as if commenced by writ.
Plaintiff's submissions
The plaintiff submits that this application is something which can plainly be dealt with as an originating summons and refers to O 4 r 1 RSC which requires that 'civil proceedings between parties to be heard in chambers must be commenced by originating summons'.
She notes that the originating summons is interlocutory and that there is thus no disadvantage suffered by any party in determining the summons in so far as it may impact the ultimate determination of the plaintiff's proposed cause of action and the defence of that action.
The plaintiff refers to s 43(1) Limitation Act which provides that an application under the Act is to be made in the appropriate Court. The appropriate Court in this case is the Supreme Court, the rules of which provide that an application under any Act must be dealt with in chambers.[13]
[13] RSC O 59 r 1(1).
Determining the issue of limitation prior to trial will reduce the matters to be ventilated at trial. If the plaintiff's application to extend the limitation period is not successful, the substantive action will not proceed.
The conduct of the case is a matter for the plaintiff. The defendant seeks to require the plaintiff to plead out her full case now.
The plaintiff further submitted, relying upon Brown, that the defendant would be able to deny the existence of an injury that has been suffered by this surgery because the limitation defence centres on the plaintiff's state of mind.[14] Defendant's counsel did not make any submissions in reply, so this has gone unanswered.
[14] ts page 28.
The plaintiff submits that the issues in respect of the Limitation Act are not to be conflated with the facts and issues that the plaintiff must prove at trial. It is for the plaintiff to choose how she will make the extension application and the evidence she will adduce to support it. If that evidence is insufficient to discharge her onus with respect to the matters which must be established pursuant to s 39, the application will not succeed.
The plaintiff further submits that even on an originating summons, the RSC allow the respondent to file opposing affidavits, apply to cross‑examine, adduce his own evidence by way of affidavit or apply for orders for subpoenas or leave to administer interrogatories.[15]
[15] Plaintiff's submissions [43].
Consideration
The Court has express power to convert an originating summons to a writ (see for example Corruption v Crime Commission v McCusker AO QC [2009] WASC 44)). A Registrar has jurisdiction to exercise the remedial power under O 2 r 1 RSC to convert this application to a writ of summons (see for example, Hastings v Hastings [2020] WASC 209).
The plaintiff chose to make this application prior to issuing proceedings against the defendant. Had she issued proceedings this application could have been made by way of chamber summons in those proceedings.
Justice Kennedy in Martin-Smith v Woodhead [1990] WAR 62 commented that the 'originating summons procedure is quite inappropriate in contested cases where there are likely to be disputes of fact'. That comment is extracted in the commentary to O 59 r 1 in Civil Procedure WA.
That observation should be understood in context. It was made as a preliminary point in response to a submission made by counsel that the matter should have been instituted by originating summons instead of a writ of summons. It appears that the submission was based on the equivalent to the current O 59 r (1)(n) RSC.[16] The action in question was an action for sale in lieu of partition pursuant to s 126 Property Law Act 1969 (WA) and was outside the scope of the matters in the sub-rule.
[16] Applications for or relating to the sale by auction or private contract of property, and as to the manner in which the sale is to be conducted, and for payment into court and investment of the purchase money.
Both parties cited Mullaley; the plaintiff for the proposition that whether a limitation point should be heard and determined together with the main action depends on the circumstances of the case which best serves the interests of justice;[17] the defendant relies upon it for the proposition that a limitation point should only be heard separately in the clearest of cases.
[17] Plaintiff's submissions [15], referring to Mullaley [10] ‑ [19].
The quote relied upon by the defendant is made with reference to the High Court decision in Wardley. His Honour was referring to the quote at page 533 of the CLR:
We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases'.[18]
[18] Wardley, 533.
The 'kind under consideration' was whether loss pursuant to an indemnity had crystallised at the time the indemnity was executed, or when the event upon which the indemnity was contingent, occurred. It was ultimately held that no loss was suffered until the contingency occurred and therefore the action was commenced within time. The majority referred to the problems which can arise 'particularly in a case involving foreign loans', indicating that it was referring to a particular factual scenario.
Wardley related to a complex financial transaction involving the failed Rothwells bank. The plaintiff's claim against the defendant is very different from the facts in Wardley, although I acknowledge Colvin J referred to it in a limitation period extension application relating to personal injury.
His Honour considered whether the application should have been brought separately to the main proceeding. His Honour said:[19]
Before deferring the hearing of the application for an extension until the final hearing, the Court would need to give appropriate weight to the extent to which such a procedural course would undermine the purpose of limitation provisions and the certainties that they are intended to afford.
[19] Mullaley [18].
Determination of the limitation extension before a final hearing in this case will provide certainty. The plaintiff has made it clear that she will not proceed if this application is not successful. In that case both parties avoid the time, expense, and uncertainty of a full trial. If the application succeeds, the defendant can fully defend the claim. The defendant is no worse off.
The ability to cross‑examine in proceedings commenced by way of originating summons, which is often used in Family Provision Act claims (which frequently involve significant factual disputes), illustrates the extent to which the process can accommodate disputes of fact.
The considerations for extending the limitation period are far more limited than the issues to be decided at trial. In Mullaley, Colvin J referred to the observation of McClure P and Newnes J in Ame Hospitals Pty Ltd v Dixon [2015] WASCA 63; (2015) 48 WAR 139 [45] that when considering a limitation period extension application pursuant to s 39(3) Limitation Act:
no attention is required to the legal issue of whether there is a duty of care, the factual issue of whether the standard of care has been breached or issues going to the legal aspect of causation or remoteness of damage.
I accept that if the extension application is successful, the defendant cannot plead a limitation defence at trial. All other defences are available.
The defendant did not contend that he would be precluded from denying the existence of an injury, nor that he would be precluded from bringing any other defence available to him, should this application succeed.
Section 43(5) Limitation Act permits an 'extension application to be sought or determined at any time before or after the issue, or close, of pleadings.' In the present case the plaintiff annexed a draft statement of claim to her first affidavit. Had the application been made after a writ had issued, by way of chamber summons before the issue of pleadings (which course was open to the plaintiff, as acknowledged by defendant's counsel), the defendant may not have had the benefit of draft pleadings before being required to respond to the extension application.
This will be a complex medical negligence claim if the plaintiff's extension application succeeds. The material elements of the plaintiff's cause of action against the defendant will require substantial preparation. Such work is likely to come at a significant cost. It is not just to require the plaintiff to fully plead and prepare a claim when there is a threshold limitation issue which may render the entire trial otiose. It is also consistent with O 1 r 4A RSC requiring that 'the practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse in time … trial'.
It is for the plaintiff to decide how she will run her case. It is for the plaintiff to decide what application she will make, and what evidence she will adduce to support it. Conversely, there are methods by which the defendant can test the evidence advanced by the plaintiff in support of her application.
If this application were to be converted to proceeding by way of writ of summons, the plaintiff would be forced to plead out her entire claim. She seeks a determination on a precise and potentially conclusive point. If the extension is not granted, her claim cannot proceed.
Disposition
The defendant's application is dismissed.
The defendant is to pay plaintiff's costs of the application to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MB
Associate to Registrar Griffin
23 MARCH 2023
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