Court of Appeal (WA)|2007-08-31|Before: Wheeler JA

OSGOOD -v- WHAM [2007] WASCA 178 (31 August 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : OSGOOD -v- WHAM [2007] WASCA 178

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : OSGOOD v WHAM [2005] WADC 216

Practice and procedure - Appeal from refusal to extend time and set aside judgment in default of compliance with springing order - Delay in exchanging expert evidence in medical negligence action - Explanation for delay - Appellant plaintiff having a fairly arguable case - Importance of determining actions on the merits unless serious grounds for summary dismissal - Limitation period not expired

Order of District Court dismissing appeal from Registrar set aside

Time for compliance with order of Registrar of 25 August 2004 extended until 14 days after this decision

2 McLURE JA: This is an appeal from a decision of Groves DCJ dismissing an appeal from the refusal of a registrar to set aside default judgment and extend the time for compliance with a springing order.

3 An appeal from a registrar to a District Court judge is a hearing de novo. Accordingly, the question for this Court is whether Groves DCJ erred in the exercise of his discretion in refusing the relief sought by the appellant. In order to succeed, the appellant must establish that the primary Judge has expressly or impliedly made a material error of fact or law: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. The respondent conceded that the primary Judge erred in concluding that the principle of res judicata applied. However, his findings on the merits of the appeal are not affected by that error.

4 The facts are detailed in the reasons for judgment of EM Heenan AJA. In summary, the progress of the appellant's medical negligence action against the respondent was delayed as a result of her continuing failure to file and serve expert evidence. There are two relevant periods of delay. The first period is from the first pre-trial conference in November 2002 until the making of a springing order on 25 August 2004. In that period, the Court made orders in January 2004 (by consent), February 2004 and June 2004 that the appellant file and serve by a specified date the report or substance of any expert report she intended to adduce at trial. The appellant failed to comply with the orders.

5 At the end of the time prescribed by the order made in June 2004, an expert retained by the appellant had prepared a report but would not release it without payment. As a result of the need to involve the Legal Aid Commission, the appellant's solicitors did not receive the report until 6 August 2004. The appellant's solicitors considered that a further report was needed and that required the further involvement of the Legal Aid Commission. A springing order was made on 25 August 2004 requiring that the expert report (or substance thereof) be filed and served by 22 October 2004. The making of the springing order marks the commencement of the second period of delay. When the springing order was made, the Legal Aid Commission had refused an extension of legal aid to obtain a further report. The appellant had to challenge the refusal and then retain an expert. An extension of legal aid was granted on 7 October 2004 and the expert who ultimately provided a report, Dr Beaumont, was first contacted some days later. It was apparent that

the report from Dr Beaumont could not be provided within the period specified in the springing order so the appellant made an application for an extension of time, which application was refused. The appellant's solicitors understood from the Registrar that they would be in a better position to obtain an extension of time if they had the report. They did not receive Dr Beaumont's report until March 2005. A signed substance of his evidence was served on the respondent in April 2005 and the appellant filed this application for an extension of time to comply with the springing order at the end of May 2005. The appellant's action was dismissed in November 2004 for failure to comply with the springing order and a bill of costs of taxation had been filed and a taxation hearing commenced.

6 The appellant's case is that in February 1999 she developed cloudiness over her left eye and was referred to the respondent. At a consultation with him on 17 February 1999 he formed the view that the cloudiness was attributable to a cataract. In April 1999 the appellant lost all sight in her left eye and suffered significantly reduced vision in her right eye as a result of diabetic retinopathy which the respondent had failed to diagnose. The appellant had a history of insulin-dependent diabetes.

7 In support of her application for an extension of time, the appellant relied on affidavits from two of her solicitors, Mr D'Angelo and Mr Potter. Mr D'Angelo's affidavit was relied on in the appellant's first unsuccessful application for an extension of time in October 2004. Mr Potter's affidavit was for the purpose of the second application. The affidavits do not address the reasons for the delay between November 2002 and June 2004.

8 Mr Potter stated in his affidavit (at par 5.9 and par 5.10):

Expert opinion was ... required to support the Plaintiff's allegations that the Defendant had failed to properly examine, diagnose and treat the plaintiff's diabetic retinopathy condition, and that, simply put, had the Defendant not so failed, the Plaintiff would not have suffered [the loss of all sight in her left eye and significantly reduced vision in her right eye] or earlier intervention could have alleviated those conditions or the ultimate result ... This 'causation' history was further complicated by the pre-existing medical condition of the Plaintiff in relation to her diabetes and her dependency on insulin.

As the Plaintiff's case has progressed, the firm has also obtained expert medical reports [annexed] explaining the nature and extent of the Plaintiff's visual disabilities.

9 One of the annexed reports from an ophthalmologist shows that he diagnosed severe proliferative diabetic retinopathy changes in the appellant's left eye on 14 June 1999, less than four months after the appellant consulted the respondent.

10 It is apparent from the evidence as a whole that the appellant's solicitors were aware from the first pre-trial conference in November 2002 that further expert evidence was required on liability, in particular, to establish that the consequences of the appellant's condition could have been avoided or reduced if her condition had been diagnosed by the respondent in February 1999.

11 The primary Judge was highly critical of the appellant's solicitors. He stated that they had not been fully frank, had engaged in deceit and had shown contumelious disregard of Court orders. The appellant contends that there was no proper evidential foundation for the criticisms and that the primary Judge took them into account in the exercise of his discretion. I accept that he did take those matters into account, the only question being whether he was entitled to do so. For that purpose it is necessary to provide further background.

12 It is clear from the appellant's affidavit evidence and from Mr Potter's oral submissions to the primary Judge that the appellant's solicitors were of the mistaken view that the only relevant delay was that from 10 June 2004. It is just as clear from the respondent's written and oral submissions to the primary Judge that he claimed that the entire period of delay commencing from the first pre-trial conference was relevant to the determination of the application for an extension of time. At the hearing, the primary Judge, whose views corresponded with those of the respondent, made his position on the subject clear. It is not correct to say that the delay prior to June 2004 was not put in issue in the proceedings before the primary Judge. Moreover, in circumstances where the appellant was seeking a retrospective extension of time of some seven months (October 2004 to May 2005) at a time some six months after judgment had been entered, it should have been apparent to any reasonably competent solicitor even without the benefit of the respondent's written submissions that all the delays in the conduct of the action were relevant and required explanation.

13 Turning now to the primary Judge's criticisms of the appellant's solicitors. The primary Judge said (at [14]):

Paragraph 5.10 [of Mr Potter's affidavit] refers to medical reports explaining the nature and extent of the plaintiff's visual disabilities. None of those reports proffer any opinion as to the alleged negligence of the defendant. I can only conclude that no expert opinion was sought until some time after legal aid was granted to cover the cost of obtaining such a report. Implicit in that is that the plaintiff's solicitors were not forthcoming to the Court or the defendant's solicitors, up to and including pre-trial conference No 9 [on 10 June 2004], that they neither held an expert report or had not even sought to obtain one. In that respect also neither the affidavit of Mr D'Angelo nor Mr Potter are fully frank as to those matters.

14 What the primary Judge did not know because he had not been told by the appellant was that a report dated 8 March 2001 was obtained from a Dr Lazarus which, we are left to infer, dealt with some aspect of liability. His report was served on the respondent's solicitors on 8 November 2002, just prior to the first pre-trial conference. At the hearing, the primary Judge questioned Mr Potter as to whether any other expert evidence had been obtained and no reference was made to this report. However, the substance of the primary Judge's point embraces the proposition that the appellant's solicitors had not taken steps to obtain the further expert evidence that was required. The evidence establishes that the adjournments of all of the pre-trial conferences (11 in total) were occasioned by the appellant's need to obtain further expert evidence.

15 However, the evidence does not establish that, up to and including pre-trial conference No 9 on 10 June 2004 the appellant's solicitors had not sought to obtain an expert report. The evidence establishes that by 22 July 2004 an expert report had been prepared and it may be thought unlikely that steps were not taken prior to 10 June 2004 to obtain that report. In any event, in response to a direct question from the primary Judge on that issue, Mr Potter indicated that Mr D'Angelo had 'quite some time ago [attempted] to obtain expert evidence'. The weight of the information before the Court supports the view that the affidavits of Messrs D'Angelo and Potter did not address these matters because they thought the period before 10 June 2004 was irrelevant rather than because they did not intend to be fully frank or were being deliberately selective in the information provided to the Court.

16 The suggestion of deceit is made at [20] where the primary Judge said:

As to the interests of justice, it cannot be proper for a plaintiff to simply disregard orders of the Court and expect to be indulged. The plaintiff seemingly chose to ignore the consent order to serve expert reports on or before 20 February 2004 made at pre-trial conference No 6. That the plaintiff's solicitors consented to an order suggests that they either held expert/s reports or were confident that they would have them within the agreed timeframe. Such was not the case and suggests deceit of the Court.

17 The suggestion is that the solicitors, by consenting to the order, implied that they had, or were confident they would have, the reports within a specified timeframe. Based on the finding at [14], the primary Judge concluded that the solicitors had taken no steps to obtain a report in which event the statements were knowingly misleading. For the reasons already given, the evidence did not permit the primary Judge to draw the inference that the appellant's solicitors had taken no steps to obtain a report. It follows that there was no basis upon which to draw an inference of deceit.

18 Finally, the primary Judge said (at [26]) that there had been what he regarded as a 'contumelious and largely unexplained disregard of the orders of the Court'. An explanation was provided for the failure to comply with the orders made in June and August 2004. Two other orders (made in January and February 2004) had not been complied with and there was no explanation for the failure. Where compliance with an order depends upon the co-operation or actions of an independent third party such as a medical expert, it is more difficult to draw an inference of contumelious conduct from an unexplained failure to comply. Further, Mr Potter explained to the primary Judge that he thought the pre-June 2004 history was irrelevant and his experience in the District Court was that pre-trial conferences were invariably adjourned from time to time pending the provision of expert reports. In these circumstances, the inference of intentional disregard of Court orders should not have been drawn.

19 The adverse observations and conclusions of the primary Judge on the conduct of the appellant's solicitors are not supported by the evidence thereby giving rise to material errors that impaired the exercise of his discretion thus entitling this Court to intervene and exercise the discretion afresh.

20 As I have noted elsewhere, there is a widely held view in this jurisdiction, based on the decision of the High Court in The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, that the justice of the case will always, or practically always, permit a party to litigate an issue that is fairly arguable regardless of non-compliance with court procedures and orders. It has produced a culture in the legal profession in this State of non-compliance with court rules, practice directions and court orders, in particular, interlocutory orders. The view is misconceived: see Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79. The Court has the duty and power to protect the integrity of its processes once they are set in motion. Case management is not an end in itself but it exists to further the interests of justice which are advanced by the timely and efficient disposition of proceedings.

21 In this case there is an unexplained delay in the progress of the action exceeding 18 months and unexplained failures to comply with two court orders. There is no clear explanation for the entire delay of nearly five months between initial contact with Dr Beaumont and the provision of his report. More than six months after judgment had been entered and acted upon by the respondent (in the filing and serving of the bill of costs which was part-heard), the appellant sought a seven month retrospective extension of time. It is a nonsense to suggest that the respondent and the broader public interest is not prejudiced by the grant of the relief sought in this case.

22 It is reasonable to excuse delays related to the appellant's impecuniosity resulting in the need to obtain legal aid funding and other delays over which the appellant and her solicitors had no control (for example, the tardiness of experts or the unexpected need to obtain advice from different experts). But there are significant unexplained delays and ordinarily a party should not receive a benefit from silence on those matters when the circumstances demand explanation.

23 I turn now to the prejudice to the appellant. The only evidence before the Court suggests that the appellant has, at its lowest, a fairly arguable case. No doubt the respondent has contrary expert evidence. The evidence also establishes that the appellant commenced a fresh action against the respondent in 2005 (CIV 431/2005). I infer from the respondent's evidence that the writ has not been served on the respondent. If that is the case, the writ will have to be renewed under O 7 of the Rules of the Supreme Court 1971 (WA). In the circumstances it would be wrong to assume that the appellant will be able to progress that action in the event this appeal fails. Thus, the prejudice to the appellant is potentially very significant. I also place some weight on the fact that the failure to provide an explanation of the delay before June 2004 was due to the mistaken belief of the appellant's solicitors that the delay before June 2004 was irrelevant. The delay after that period appears to be primarily (but not wholly) due to events over which the appellant and her advisors had no control.

24 On balance, I have come to the view that, subject to costs orders being made to ameliorate the prejudice suffered by the respondent, justice requires that the judgment be set aside and the time for compliance with the order be appropriately extended. The appellant was seeking a significant indulgence on inadequate information and it was appropriate for the respondent to resist the applications below. The appellant should pay the respondent's costs of the applications below and the costs thrown away. There being no evidence that the unacceptable and unexplained delay in the conduct of the proceedings was due to anything other than the failure of the appellant's solicitors to diligently progress the action and having regard to the failure of the appellant's solicitors to put all relevant evidence before the primary Judge and this Court, my preliminary view is that the costs orders in favour of the respondent should be paid by the appellant's solicitors. I would hear from the parties and the appellant's solicitors on that issue and on the costs of the appeal.

25 This appeal is from the decision of the District Court of Western Australia, given on 30 November 2005, by which Groves DCJ dismissed an appeal from a decision of Registrar Kingsley refusing to set aside a default judgment and to extend the time for compliance with a springing order made by the Registrar at a pre-trial conference on 25 August 2004. The appellant seeks to have that decision set aside, the default judgment set aside, and the time for compliance with the springing order extended.

26 The nature of the appellant's claim for damages against the respondent, and the respondent's defence, appears, to some extent, from the rather opaque pleadings in the action. These pleadings fall well short of the desired purpose of pleadings; namely, that they should identify with precision all the material facts upon which the parties are agreed or are in dispute so that all the issues of material fact upon which the parties are in dispute may be resolved at the trial, and the court may give such relief, if any, to which either of the parties is entitled by law.

27 The parties have adopted the not uncommon practice, but one which should still be deplored, of pleading loosely and inadequately in the expectation that the real issues will later emerge and be dealt with once expert evidence is exchanged. In my view this laxity is, to some degree, responsible for many of the problems which have subsequently emerged in the course of this litigation. One reason for this is that such an approach diminishes the utility and purpose of the pleadings themselves

and casts the role of determining the real issues in the litigation upon the reports, or the summaries of the evidence, of the expert witnesses which it is assumed will be exchanged. That is an improper reversal of the function of those separate, and different, procedures.

28 A second significant deficiency in this approach is its all too facile assumption that the exchange of expert evidence, whether on all or only some of the issues in the case, is essential and inevitable. Sometimes, perhaps many times, that may be so, but it will not always be so. A plaintiff may be able to rely on the doctrine of res ipsa loquitur; the essential facts of the case may be agreed or so obvious that they need not be contested, leaving the defendant with the onus of proving his or her defence, or even with the right, or obligation, to begin adducing evidence; or, as in the present case, the historical facts leading to the alleged loss or damage claimed by the plaintiff may themselves be capable of giving rise to an inference of negligence or breach of duty, which may be sufficient for the plaintiff to establish a prima facie case, even without other supplementary expert evidence.

29 Contrary to the approach adopted by the learned Judge at first instance, this is not a case in which the appellant's claim was devoid of any supporting expert evidence before the report of Dr Beaumont was eventually obtained in March 2005, after the appellant's action had been dismissed for non-compliance with the springing order and judgment had been entered for the respondent.

30 The statement of claim alleges that the appellant was born on 12 January 1971 and consulted the respondent, a specialist medical ophthalmologist, in relation to problems with her vision between 24 April 1996 and 12 March 1999. The appellant alleges that she gave the respondent details of her medical history of diabetes and told him that she had been referred to him during her pregnancy with her third child from late 1997 until August 1998, specifically as a result of her diabetes, so as to safeguard against the eventuality that sudden hormonal changes during pregnancy might adversely affect her vision. She pleads that she was referred by her general medical practitioner to the respondent on or about 17 February 1999 because she had developed cloudiness over her left eye and that, during the February 1999 consultation, the defendant diagnosed a cataract in the left eye and prescribed prescription spectacles. She alleges that in April 1999 she lost all the sight in her left eye and suffered significant reduced vision in her right eye, and that this condition was attributable to diabetic retinopathy. The appellant then alleges that the respondent had negligently failed in his duty of care to examine, diagnose and treat her condition to the standard of a reasonably competent ophthalmologist or, in the alternative, was in breach of an implied term of the contract between doctor and patient to similar effect. The alleged breach of the tortious, alternatively contractual, duty of care was alleged to be a failure to examine the appellant properly at the consultation of 17 February 1997; a failure to diagnose the alleged condition of diabetic retinopathy; and, a consequent failure to treat the diabetic retinopathy.

31 In particulars in support of those allegations, the appellant alleges that onset of diabetic retinopathy is more likely during, or immediately following, pregnancy; that her history of diabetes rendered it likely that she would suffer from diabetic retinopathy; that her sudden loss of vision was symptomatic of the onset of diabetic retinopathy; that the diabetic retinopathy was present and diagnosable in February 1999; and, that the respondent failed to test her condition via fluorescein angiography and/or argon laser treatment. The appellant further alleges that the respondent failed to treat her condition of diabetic retinopathy properly or at all, and that she remained untreated until she consulted another ophthalmic surgeon on 14 June 1999. Details of the subsequent treatment and loss of vision, amounting to a near complete loss of vision in the left eye and severe reduction in the vision of the right eye, are alleged to have been caused by the erroneous or missed diagnosis of the respondent.

32 The respondent's defence essentially consists of denials or non-admissions of the various allegations in the statement of claim. He does admit that he saw the appellant on 17 February 1999 in consultation, when she was complaining of reduced visual acuity and when he found that cataracts, which had been diagnosed as diabetic cataracts at earlier consultations in April 1996, September 1996 and June 1998, had increased in each eye. He does, however, expressly deny that there was any evidence of diabetic retinopathy at any of his consultations with the appellant and denies any breach of duty or breach of contract as alleged or at all.

33 Although not expressly alleged in the defence, as should be the case if it were to be relied upon (RSC O 20 r 9), it appears to be the case that the respondent desires to allege, and to lead evidence to support a contention, that if the appellant suffered a severe loss of vision, which otherwise is denied, and if that was due to diabetic retinopathy, which is also denied, then that condition developed after his consultation with the appellant in February 1999 and could not have been detected or treated at the time of the last consultation.

34 The materials before the learned Judge at first instance included evidence from specialist ophthalmic surgeons which related to the subsequent diagnosis and treatment of the appellant's diabetic retinopathy. The content of these reports, while containing the narrative history of the diagnosis and treatment, is also relevant to the plaintiff's allegations of breach of duty or alternatively of contract.

35 The first such report is from Dr Stuart Lockerbie FRACO FRACS of 22 December 1999 - annexure 'JRP2' to the affidavit of Mr J R Potter sworn 24 May 2005. Relevantly, Dr Lockerbie reported:

Ms Osgood first presented to myself on 14/06/99 with symptoms of a blurred left eye. Julie advised me that this blurred vision had been present for some 3 months and that she has previously been under the care of Dr Wham, who apparently diagnosed a cataract sometime earlier. I did note that Julie was an insulin dependent diabetic of some 21 years duration.

1.1 Examination findings were corrected visual acuities of 6/7.5 for the right and 6/120 for the left. Cortical and posterior subcapsular lens opacities were noted bilaterally, and indeed these lens opacities made detailed retinal examination somewhat difficult. The severe proliferative diabetic retinopathy changes were noted in the left eye and indeed some changes also noted in the right eye.

A diagnosis of proliferative diabetic retinopathy was made

In view of this lady's diabetic retinopathy changes I referred her to Professor Ian Constable for further management of this.

This consultation of 14 June 1999 appears to be the only occasion when the appellant attended on Dr Lockerbie, and it may be of some significance that he made the diagnosis immediately and referred her to another senior specialist in the field.

36 Two reports from Professor Ian Constable, dated, respectively, 20 September 2001 and 4 November 2002, were also in the materials before the learned Judge as annexures to the affidavit of the appellant's solicitor, Mr Potter. In the first of these, Professor Constable reported that the appellant underwent extensive vitreoretinal surgery on two occasions, on 7 February 2000 and 4 April 2000, at Sir Charles Gairdner Hospital for advanced diabetic retinal disease in her only functioning eye. Visual acuity then remained 3/60 in the right eye or 5 per cent. The retina was described as being flat overall, with extensive fragmented scar tissue on the retinal surface. After further explanations, Professor Constable reported that the left eye then had no light perception and that it was likely that the appellant's right eye would slowly deteriorate further. In his report of 4 November 2002, Professor Constable referred to his latest consultation with the appellant on 24 May 2002 when her vision was 2/60 in the right eye and there was no light perception in the left. Her current symptoms were then described as consisting of very poor vision in her only functioning eye. He offered the opinion that the prognosis for retention of her residual vision was doubtful.

37 It is also the case that the appellant's solicitors had obtained a written report from Dr Mark Lazarus, dated 8 March 2001, which had been disclosed to the respondent's solicitors under cover of a letter of 8 November 2002 (see chronology below), but that report was not before his Honour, nor referred to by counsel for either of the parties at the hearing of the appeal from the Registrar. Nevertheless, it is significant because, had any question or issue been squarely raised at the hearing of the appeal about whether or not the appellant's solicitors were in possession of an expert medical report dealing with the case before the statement of claim had been delivered, then, a ready explanation known to the solicitors for both parties was available, because each knew of the existence of Dr Lazarus' report. This makes the finding by the learned Judge on the appeal at [12], that 'it was not until some six months after the judgment in default had been obtained that the plaintiff was in receipt of evidence which might have supported her claim', all the more unfortunate. Further, the fact that Dr Lockerbie was able to make a correct diagnosis of severe diabetic retinopathy at his first consultation with the appellant, slightly less than four months after her last consultation with the respondent, is itself a circumstance which, subject to all other evidence in the case, is capable of giving rise to an inference of a missed or mistaken diagnosis by the respondent.

38 The learned Judge hearing the appeal in the District Court also had before him a statement entitled 'Substance of Expert Evidence of Dr Paul Beaumont Ophthalmic Surgeon', dated 24 March 2005. Dr Beaumont, who possesses the qualifications of FRCS, FRANZCO, practises as an ophthalmic surgeon and has written on the subject of retinopathy. He had been provided with copies of the pleadings in the action, copies of the clinical notes of the respondent, reports from Dr Lockerbie, Professor Constable, another ophthalmologist and the Sir Charles Gairdner Hospital notes. His statement sets out the background facts, which included a statement that the appellant had been diagnosed with insulin dependent diabetes mellitus in 1978 which was fully controlled, but that when she presented to the respondent on 17 February 1999 with this 21 year history of diabetes it included a history of poor control. Dr Beaumont observed that, on the basis of the information provided to him, the respondent did not examine her retina. After describing the subsequent diagnosis and treatment, Dr Beaumont stated:

At review in February 1999 Dr Wham's examination of Ms Osgood's eyes should have included a dilated fundal examination. Ms Osgood's history was of poorly controlled diabetes for 21 years. This should have alerted Dr Wham to the possibility that Ms Osgood would most likely have significant retinopathy. If Dr Wham experienced any difficulty viewing the retina [at this appointment] he should immediately have referred Ms Osgood to a retinal specialist for a further examination and possible fluorescein angiography studies.
If a fluorescein angiogram had been performed in February 1999 it would have demonstrated evidence of severe retinopathy. Professor Constable suggests Ms Osgood had a diffuse capillary retinopathy when he initially attended her. I described this condition in the Lancet in an article in February 1972. Ms Osgood's diffuse capillary retinopathy in February 1999 would have had a very characteristic fluorescein angiographic appearance.
Assuming the diabetic retinopathy had been detected in February 1999 (on clinical examination and/or after fluorescein angiogram), then the need for very aggressive treatment of the condition would have been immediately obvious. This treatment would have comprised extensive laser treatment. There is also a body of opinion that suggests that suppression of growth hormone may also be beneficial to the treatment of this condition.
In my opinion early and aggressive treatment of Ms Osgood's bilateral proliferative diabetic retinopathy would have significantly altered the eventual outcome in this case, and left Ms Osgood with better vision than she now has.
In my opinion it is extremely likely that Ms Osgood had severe diabetic retinopathy in February 1999. Although the disease can develop rapidly, in my experience the disease does not progress from no retinopathy to a retinal traction detachment over a 4-month period.
In my opinion laser treatment, given in or about February 1999, would have minimised the vision loss that occurred. It is likely that her vision would have deteriorated with laser treatment to a level of around 6/36 to 6/60, but it would have prevented her from going on to total loss of vision in the left eye and 2/60 in the right eye.
If the laser treatment had been combined with growth hormone suppression, in my opinion it is likely that Ms Osgood would have kept a visual acuity of between 6/9 and 6/24. This assessment assumes that Ms Osgood had a diffuse capillary retinopathy.
I consider there is no doubt that Dr Wham should have made an early diagnosis of diabetic retinopathy in February 1999. If Dr Wham had any difficulty in viewing the retina he should have immediately sent Ms Osgood to a retina specialist for further evaluation and possible fluorescein angiography.

39 It is apparent from the chronology of the progress of the case, which is set out below, that the solicitors for the respondent served upon the solicitors for the appellant a copy of a report or reports from a consultant ophthalmologist who, presumably, supports the respondent's case denying liability. However, those reports were not before the learned Judge at the hearing of the appeal from the Registrar and they were not before this Court on the hearing of the appeal. This is not the occasion to consider or evaluate the strength of the respondent's defence, in the absence of that or other evidence. Nevertheless, the evidence which was available and before the learned Judge, comprising the reports of Dr Lockerbie, Professor Constable and the statement from Dr Beaumont, has all the appearances of indicating a good arguable case for the appellant.

40 To observe, as the learned Judge did, at [22], that '[o]n the face of it I cannot conclude that the plaintiff's action is hopeless. In my view the merits of the claim weigh neither one way nor the other in this application', is a significant underestimation of the apparent strength of the appellant's case, at least on the limited materials before his Honour. In my view these materials should be regarded as revealing a good arguable case which, having regard to the severity of the appellant's condition and its consequences, should have been regarded as a positive, rather than a neutral, factor in the determination of whether or not an extension of time should be granted and the default judgment set aside.

41 The appellant's claim is a serious one with far-reaching consequences for her future. It could not possibly be characterised as trivial, insubstantial or speculative, and it is clear that there is some significant professional opinion in the field of ophthalmic science which supports her allegations. No doubt the respondent has other significant evidence which supports his denial of liability, but it is both the function and the obligation of the court in which such an action is brought to determine such a claim upon the merits, except in exceptional cases. In The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 154 Dawson, Gaudron and McHugh JJ said:

However, nothing in that case suggests that those principles [of case management] might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.

The materials before the learned Judge were more than enough to demonstrate that the appellant had a serious and arguable claim for relief for a grave disability. That itself is a strong indication pointing towards her entitlement to have her claim adjudicated on the merits according to law. Such an entitlement is never, however, absolute. If a party fails, to a significant degree, to comply with orders of the court, with no explanation adequate to the particular circumstances and sufficient to counterbalance the effect of such non-compliance, that party might have to endure the eventual dismissal of the proceedings. But, unless the justification is convincing, every consideration of policy favours the determination of serious claims upon their merits.

42 Before turning to the reasons for decision of the District Court and the grounds of appeal, it is first necessary to review the history of the proceedings. This is set out in the reasons of Groves DCJ, at [2], and is largely repeated here. There are some inconsistencies between the chronology in his Honour's judgment and the chronologies filed by the parties to this appeal. Those inconsistencies material to the resolution of this appeal are addressed later in these reasons. The chronology is as follows:

17 February 1999 Appellant consults the respondent, a specialist ophthalmologist, in relation to problems with her vision.

12 March 1999 Appellant consults the respondent a second time.

18 August 2000 Writ of summons filed by the appellant.

8 March 2001 Appellant's solicitors obtain expert report of Dr Lazarus.

15 August 2001 Writ of summons served on the respondent.

22 August 2001 Memorandum of appearance filed by the respondent.

15 November 2001 Directions hearing at District Court following default by the appellant in close of pleadings milestone.

4 December 2001 Statement of claim served on the respondent.

13 December 2001 Appellant's solicitors send the respondent's solicitors a list of discoverable documents.

21 December 2001 Defence and certificate of discovery filed by the respondent.

11 January 2002 Appellant files certificate of discovery.

30 January 2002 Respondent serves request for further and better particulars of the statement of claim.

26 July 2002 Directions hearing at the District Court following the appellant's default in entry for trial milestone. No attendance by the appellant's solicitors. Appellant ordered to provide within 14 days answers to the respondent's request for further and better particulars of the statement of claim. Entry for trial milestone extended to 31 August 2002.

8 August 2002 Appellant files answers to the respondent's request for further and better particulars of the statement of claim.

24 September 2002 Appellant files entry for trial and papers for the judge.

7 November 2002 Respondent serves two expert reports from Dr Kennedy on the appellant.

8 November 2002 Appellant's solicitors send the respondent's solicitors the report of Dr Lazarus dated 8 March 2001.

11 November 2002 Pre-trial conference ('PTC1') is adjourned to 27 May 2003. Respondent contends that this is to enable the appellant to serve its expert evidence.

26 May 2003 On application of the appellant's solicitors, the pre-trial conference scheduled for 27 May 2003 ('PTC2') is adjourned to 25 June 2003, to enable the appellant to provide expert evidence.

20 June 2003 Respondent's solicitors write to the appellant's solicitors indicating that the pre-trial conference scheduled for 25 June 2003 should be adjourned because the appellant's expert evidence has not yet been provided. Pre-trial conference scheduled for 25 June 2003 ('PTC3') adjourned to 25 August 2003.

20 August 2003 Appellant's solicitors request an adjournment of the pre-trial conference scheduled for 25 August 2003 because they have not obtained their expert evidence. Pre-trial conference scheduled for 25 August 2003 ('PTC4') adjourned to 27 October 2003.

24 October 2003 Appellant's solicitors request an adjournment of the pre-trial conference scheduled for 27 October 2003 because they have still not obtained their expert evidence. Pre-trial conference scheduled for 27 October 2003 ('PTC5') adjourned to 22 January 2004.

22 January 2004 Consent order made that the appellant serve her expert report(s), or the substance thereof upon which she intends to rely, before 20 February 2004. Pre-trial conference ('PTC 6') adjourned to 26 February 2004.

26 February 2004 Registrar orders ('PTC7'), inter alia, that:

(1) the pre-trial conference be adjourned to a listing conference on 14 May 2004;

(2) there be a further pre-trial conference on 5 May 2004;

(3) the appellant file and serve a chronology of relevant events, a concise statement of issues for determination, and an index of the reports of any expert witnesses that the appellant intends to call, by 23 April 2004;

(4) the respondent file and serve a chronology of relevant events, a concise statement of issues for determination, and an index of the reports of any expert witnesses that the respondent intends to call, by 7 May 2004; and

(5) the appellant serve any additional expert reports by 9 April 2004.

5 May 2004 Appellant's expert evidence still not provided. Registrar orders ('PTC8'), inter alia, that:

(1) the pre-trial conference be adjourned to 10 June 2004; and

(2) the listing conference scheduled for 14 May 2004 be adjourned sine die with liberty to apply.

10 June 2004 Registrar orders ('PTC9'), inter alia, that:

(1) the pre-trial conference be adjourned to a listing conference on 30 July 2004;

(2) there be a further pre-trial conference on 23 July 2004; and

(3) no later than 21 July 2004 the appellant serve on the respondent a copy of any expert report the substance of which she intends to rely on at trial, or disclose in writing to the respondent the substance of any expert evidence that she intends to adduce at trial.

23 June 2004 Appellant's solicitors make an application to Legal Aid Western Australia ('Legal Aid') to extend their legal aid certificate to cover the cost of obtaining an expert report.

22 July 2004 Appellant's solicitors send a facsimile to the respondent's solicitors advising that:

(1) the expert report has been prepared, but that the expert is awaiting payment prior to releasing it;

(2) a tax invoice for payment of the report had been received; and

23 July 2004 Pre-trial conference ('PTC10') adjourned to 25 August 2004.

6 August 2004 Appellant's solicitors receive expert report and send it to the appellant for consideration. They decide that a further expert report is needed to progress the appellant's claim.

17 August 2004 Appellant's solicitors make further request of Legal Aid for an extension of aid to obtain a further expert report.

19 August 2004 Appellant's solicitors advised by Legal Aid that the application for an extension of legal aid has been refused.

22 August 2004 Appellant's solicitors request that Legal Aid review its decision to refuse an extension of legal aid.

25 August 2004 Registrar orders ('PTC11'), inter alia, that:

(1) unless by 22 October 2004 the appellant complies with order 3 of those orders made at the pre-trial conference of 10 June 2004, the appellant's statement of claim be struck out and judgment be entered for the respondent; and

(2) the pre-trial conference be adjourned sine die.

30 August 2004 The appellant's solicitors request Legal Aid to undertake an urgent review of its decision in light of the order made by the Registrar at the pre-trial conference on 25 August 2004.

3 September 2004 The appellant's solicitors receive notification from Legal Aid that the application for aid had been reviewed and refused. The appellant's solicitors then request that the decision by Legal Aid be reviewed by a Review Committee.

7 October 2004 Appellant's solicitors are notified that an extension of legal aid has been granted to cover the cost of obtaining a further expert medical report from an ophthalmologist.

8 October 2004 Appellant's solicitors write to the respondent's solicitors requesting an extension of time within which to comply with the springing order.

11 October 2004 Appellant's solicitors contact Dr Beaumont, an ophthalmic surgeon, and are advised that Dr Beaumont would not be in a position to deliver his opinion prior to 26 October 2006.

15 October 2004 Appellant files a chamber summons seeking an order that the springing order be extended for a further period of eight weeks.

22 October 2004 Appellant fails to serve expert evidence as ordered.

26 October 2004 Respondent files judgment pursuant to the failure of the appellant to comply with the springing order. It is adjudged that the appellant's action be dismissed and the appellant pay the respondent's costs of the action, to be taxed.

2 March 2005 Appellant's solicitors receive report from Dr Beaumont.

8 April 2005 Signed substance of evidence of Dr Beaumont served on the respondent's solicitors.

26 May 2005 Appellant files a further chamber summons seeking an extension of time to comply with the springing order made by the registrar on 25 August 2004.

9 June 2005 Appellant's application is again dismissed.

26 June 2005 Appellant files notice of appeal from the decision of the Registrar of 9 June 2005.

20 December 2005 Appellant files notice of appeal in this Court from the decision of Groves DCJ of 30 November 2005.

43 Several observations about this chronology are necessary. The first is that at the hearing of this appeal counsel for the appellant acknowledged that the expert report of Dr Lazarus, which was delivered to the solicitors of the appellant on 8 March 2001, was not put in evidence in the proceedings under appeal, hence its absence from the chronology outlined in his Honour's reasons. Although the correctness of the decision must be assessed in light of the material before his Honour: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 per Heydon JA at [44]; the report of Dr Lazarus is significant, not for its contents, but rather because the fact that it was not earlier disclosed shows that any question about the presence or absence of such earlier expert evidence had not been put in issue before his Honour.

44 Secondly, during the hearing of this appeal it was acknowledged that the chronology in the reasons for decision mistakenly dates the application for the extension of legal aid and the granting of the extension as 23 and 24 July 2004 respectively. These events in fact occurred on 23 and 24 June 2004, as correctly set out later in his Honour's reasons. Finally, any further discrepancies which might exist between the chronology in these reasons and the reasons of the learned Judge in the District Court are not material to the resolution of this appeal.

45 The respondent has conceded that his Honour's first reason for dismissing the appeal, namely, that an earlier refusal of a different application for an extension of time had been dismissed by Registrar Kingsley on 9 June 2005 amounted to a res judicata, was erroneous. However, the respondent submits that the learned Judge's findings on the merits of the appeal were independent of, and unaffected by, his Honour's finding on that ground. That is so, but the primary ground for dismissing the appeal by the learned trial Judge because of res judicata was not only wrong, but was also not a ground advanced, or relied upon, by the respondent. It is another unfortunate instance of the appeal being decided on an issue which was not raised by the parties and which, had it been raised, would quickly have been shown to be insufficient. There had been a very substantial change in circumstances since the refusal of the application to extend time on 20 October 2004. The report of Dr Beaumont had been obtained and further affidavits from the appellant's solicitors had been filed. It is also clear that an extension of the time to comply with an original order may be made and granted even after a judgment has been entered upon proof of default: FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268.

46 His Honour then proceeded to consider the merits of the appeal in case his primary conclusion might be incorrect. The factors considered by his Honour to be relevant to exercising the discretion to extend the time for compliance with the springing order were the length of the appellant's delay and the reasons for delay, the interests of justice, whether the appellant had an arguable case, and any prejudice either party might suffer as a result of the exercise of the discretion.

47 In considering the issue of delay, the learned Judge particularly emphasised the period leading up to the springing order of 25 August 2004. His Honour found that the appellant's lengthy delay and failure to comply with the various court orders prior to that time had resulted from the appellant's inability to secure expert evidence. Significantly, his Honour noted that the appellant was not in receipt of expert evidence which might have supported her claim until some six months after the judgment in default had been obtained. The commencement of proceedings in the absence of such supportive evidence was said to defy the standards of proper professional practice. Further, his Honour noted that the first indication that steps were being taken by the appellant to obtain expert evidence as to liability did not occur until 23 June 2004, when the appellant's solicitors applied to Legal Aid to extend the legal aid certificate to cover the costs of obtaining a report from an expert witness. The learned Judge therefore concluded that no expert opinion as to liability was sought until some time after legal aid was granted to cover the costs of the report - that is, some time after 7 October 2004. In failing to disclose that they neither held an expert report nor had even sought to obtain one, up to and including the pre-trial conference of 10 June 2004 ('PTC9'), the appellant's solicitors (and the affidavits of the appellant's legal advisers, Mr D'Angelo and Mr Potter) were characterised by the learned Judge as being neither forthcoming nor fully frank.

48 Aside from the failure adequately to explain the delay in obtaining expert evidence, which then led to the springing order some 21 months after the adjournment of the first pre-trial conference, his Honour also found that there was no adequate explanation for the considerable delay in providing the respondent with the substance of the expert evidence which the appellant obtained from Dr Beaumont subsequent to the entry of judgment in favour of the respondent. In this regard, his Honour noted that the delay occasioned by the need to obtain legal aid would not necessarily justify the extension of time.

49 In addressing the question of the interests of justice, the learned Judge held that it was fundamental to that consideration that court orders should be complied with. The appellant had failed to comply with orders made on three separate occasions concerning the service of expert evidence. The appellant had also failed to comply with the springing order made at the pre-trial conference of 25 August 2004. Further, his Honour found that the fact that the appellant's solicitors had consented to these orders in the knowledge that they did not have, or were unlikely to obtain, the necessary expert reports suggested deceit of the court. The learned Judge then made very brief mention of the appellant's case. His Honour was unable to say whether it was meritorious or not, and, consequently, found that whether or not the appellant had an arguable case was not a factor in exercising the discretion.

50 Finally, his Honour found that the appellant's delay in prosecuting the action was, of itself, prejudicial to the respondent, without identifying any specific prejudice. His Honour rejected the submission that the appellant had, by that stage, obtained an expert report and could as a result proceed to trial if an extension of time were granted. This conclusion appears to have been influenced by what his Honour regarded as 'a contumelious and largely unexplained disregard of the orders of the Court'. The learned Judge then drew no conclusion from the revelation that the appellant had initiated fresh proceedings against the respondent, presumably as a precautionary measure, pending the outcome of that appeal.

51 The balance of these considerations led his Honour to the conclusion that an extension of time for compliance with the springing order made by the Registrar at the pre-trial conference of 25 August 2004 should be refused, and the appeal dismissed.

52 No mention was made of the fact that, at the time of the decision of Registrar Kingsley, and at the time of the hearing of the appeal by his Honour, the applicable limitation period had not expired and that this was, itself, a factor relevant to whether or not the appellant should be permitted the opportunity to resume her action: Birkett v James [1978] AC 297 and Holland v Metropolitan Health Services Board [2001] WASCA 155.

53 Counsel for the appellant submits that the learned Judge's application of the principle of res judicata was incorrect. This point is correctly conceded by counsel for the respondent, as set out above, and need not be further considered in these reasons.

54 Consequently, the relevant grounds of appeal concern the exercise of the discretion to extend time when considering the merits of the appeal to the District Court. These grounds concern his Honour's findings in respect of the delay by the appellant, the interests of justice, and prejudice to the parties. The latter grounds subsume the question of whether or not there is an arguable case.

55 The factors considered by the learned Judge in exercising his discretion are those considered relevant in analogous cases such as, for example: Hawter v Stevens, unreported; SCt of WA (Master Sanderson); Library No 970645; 25 November 1997; and Chesson v Green [2002] WASCA 67 at [13] - [14]. Similar factors are also relevant when a court exercises a discretion to dismiss an action for want of prosecution, as outlined in Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93 at [100]; [2005] WASCA 93; (2005) 30 WAR 398 per Steytler P and Owen JA at 414. However, as that latter case demonstrates, these factors, though persuasive, are not prescriptive of a particular result. Ultimately, the question is: 'what does justice, in all notions or senses of it that are relevant, require in the circumstances of this case?': Hancock Family Memorial Foundation Ltd v Fieldhouse per Steytler P and Owen JA at 414 [103]; per Roberts-Smith JA at 425 [166]; see also Roddan v Gwilliam [2005] WASCA 209 at [18].

56 It is not contended by either party to this appeal that in the exercise of this discretion consideration of any relevant factors was omitted, on the one hand, or that irrelevant factors were considered, on the other - although, the fact that the applicable limitation period had not expired was a relevant consideration that was not addressed. However, counsel for the appellant does submit that in undertaking the exercise, his Honour made certain findings, or perhaps observations, about the conduct of the appellant's legal advisers; that these were not based on any evidence; and, that his Honour relied on these matters in coming to his eventual decision. These were that the appellant's legal advisers were not forthcoming or fully frank in explaining delay and non-compliance with court orders; that they were engaging in conduct suggestive of deceit; and, that they were acting contumeliously. Although these adverse observations are related to his Honour's conclusions concerning the issues of delay and the interests of justice, they will be addressed separately.

57 Counsel for the appellant's first submission on the issue of delay is that the learned Judge did not simply consider delay in the context of non-compliance with the springing order and the period following, but rather looked at delay over the whole of the proceedings. Counsel submitted that although this may be relevant in certain circumstances, if a Judge is to look at the course of the whole proceedings, then it is incumbent upon the Judge to ensure that he or she is fully apprised of all the material facts and circumstances. To this end, counsel for the appellant submits that in reviewing the entire period, his Honour assumed that the additional expert report being sought (Dr Beaumont's report) was the only expert report as to liability which the appellant was relying upon, and that the appellant had no other expert report at the time proceedings were initiated. The submission, therefore, is that that assumption was based upon an incomplete record of the evidence. In support of this submission, counsel for the appellant asserts that Mr D'Angelo's affidavit of 15 October 2004 was filed in response to the appellant's failure to comply with the order of 10 June 2004 (at 'PTC9') to serve on the respondent expert evidence and the subsequent springing order of 25 August 2004. Consequently, the affidavit only provides an explanation of the circumstances following 10 June 2004; it does not set out the entire history of the proceedings from their inception. Secondly, counsel for the appellant submits that Mr Potter's affidavit of 24 May 2005 was also made in the context of the springing order of 25 August 2004, and that so much can be discerned from the content of that affidavit, and that it was not intended to provide a complete history of the proceedings. Further, both parties had been aware that the report of Dr Lazarus had been obtained by the appellant in March 2001 and disclosed to the respondent in November 2002 - although this information was not before the learned Judge.

58 In response to the appellant's submission that his Honour concluded that the appellant had obtained no relevant prior expert evidence when that point had not been put in issue, counsel for the respondent contends that it would have been impossible for any other conclusion to have been arrived at from the information before his Honour. However, I am not able to accept that submission in light of the evidence before the learned Judge, particularly when one considers the content of the affidavits of Mr Potter and Mr D'Angelo and the context in which they were made. Further, on the basis of the report of Dr Lockerbie, there is an inference available to be drawn that the respondent, if he had conducted a proper examination, should have diagnosed a condition that was diagnosed shortly thereafter (some four months). The learned Judge wrongly proceeded on the assumption that there was an absence of any evidence going to liability prior to the report of Dr Beaumont. Such an assumption was not justified in the face of Dr Lockerbie's report and, further, should not have been made because the presence or absence of other expert evidence as to liability was not in issue or contested in that appeal.

59 Counsel for the appellant's second submission on the issue of delay concerns the period from mid 2004 onwards. It is submitted that from 10 July 2004 onwards any delay which occurred was the result of obtaining legal aid and an expert report from Dr Beaumont, and was fully and satisfactorily explained. In response, counsel for the respondent made submissions concerning the adequacy of the affidavits of Mr D'Angelo and Mr Potter in explaining the delay which occurred during this period.

60 The affidavit of Mr D'Angelo addresses the period from 10 June 2004 ('PTC9') to 15 October 2004, the date when the affidavit was filed. Mr D'Angelo deposed that in those four months the following occurred: the seeking of an extension of legal aid to cover the cost of an expert report; the obtaining of that expert report; the decision by counsel and himself that a further expert report was still required; the request for a further extension of legal aid; the refusal of that request; the request for the review of that decision; the eventual granting of further legal aid; correspondence with the respondent's solicitors requesting their consent to an extension of the springing order; and, the initial enquiries into securing a further expert report. I am satisfied that the affidavit does not reveal any intentional delay or other improper conduct on the part of the appellant's legal advisers, and that it appears to provide a full explanation of events during that period. No attempt was ever made by the respondent's advisors to have Mr D'Angelo, or for that matter, Mr Potter, cross-examined on their affidavits. Therefore, it should only be in the most unequivocal of cases that a deponent should be said to be lacking frankness, or exhibiting conduct suggesting deceit, when no such allegation has been put to him, and when he has been given no opportunity to answer or explain.

61 The affidavit of Mr Potter takes up the history after October 2004, describing events up until the appellant filed a further chamber summons on 26 May 2005 seeking an extension of time to comply with the springing order made by the Registrar on 25 August 2004. These events included the initial request for a report from Dr Beaumont; the securing of that report; the preparation of a statement of evidence; and, its service upon the respondent. Counsel for the respondent identifies two periods of unexplained delay within this timeframe. The first is the delay between obtaining the quote from Dr Beaumont on 19 November 2004 and asking him to go ahead with the report on 22 December 2004. There is a then a further period of delay between the initial receipt of the report, on 2 March 2005, and the bringing on of the application by chamber summons on 26 May 2005. However, with respect to that latter period, some of that time was utilised in preparing the statement of the substance of the expert report, having that statement approved and signed by Dr Beaumont, and then serving it upon the respondent's solicitors, which occurred on 8 April 2005. Although there is some degree of delay during this latter period, it does not appear to be significant or deliberate or to warrant any adverse inferences about the conduct of the appellant's solicitors.

62 When considering the proceedings from their inception, there were clearly significant periods of delay, including non-compliance or late compliance with several court orders. Although this period of prior delay is not an irrelevant consideration, see Roddan v Gwilliam at [44], his Honour appears to have placed disproportionate emphasis upon it.

63 In assessing the period from mid 2004 until the further application for the extension of time, his Honour concluded that no reasonable or satisfactory explanation for delay had been provided, without revealing why the explanations set out in the affidavits of Mr D'Angelo and Mr Potter were unsatisfactory. Though there may have been some degree of tardiness on the part of the appellant's solicitors during this period, the affidavits clearly indicate that various steps were being taken to secure the report of Dr Beaumont. Because the possession of such a report was obviously critical to the appellant's claim, and since judgment had already been entered against the appellant, it would have been speculative and bordering on the futile for the appellant's legal advisers to have appealed from the springing order or to have sought an extension of time without having first obtained such a report.

64 His Honour was also dismissive of the appellant's repeated attempts (ultimately successful), to obtain an extension of legal aid to finance the procurement of Dr Beaumont's report. Counsel for the respondent relies upon Baker v Bowketts Cakes Ltd [1966] 2 All ER 290 at 292 for the proposition that delay occasioned by the need to obtain legal aid will not necessarily justify an extension of time. That case was an appeal against a refusal to extend time for the service of a writ. Lord Denning MR, in considering whether to extend the writ, decided that 'we must ignore legal aid'. However, his Lordship's assertion in that case was directed by s 1(7)(b) of the Legal Aid and Advice Act 1949 (UK), which provides that the rights conferred upon a person receiving legal aid do not affect the principles upon which the discretion of the court is exercised. There appears to be no equivalent provision in the Legal Aid Commission Act 1976 (WA), which governs the provision of legal aid in this jurisdiction. The fact that the defendants in Baker v Bowketts Cakes Ltd were unaware that a writ had even been issued or that the plaintiff was legally aided also appear to be material differences between that case and the present one.

65 Counsel for the respondent also relies upon the judgment of Wheeler J in Bardsley v The Queen [2004] WASCA 251 at [115]; [2004] WASCA 251; (2004) 29 WAR 338 at 359 for the proposition that 'time spent awaiting the deliberations of the Legal Aid Commission ... will generally not constitute an adequate explanation'. Wheeler J was in dissent in that case, although not on that point. However, as her Honour pointed out during the hearing of the present appeal, reliance on that proposition in this case is misconceived. Bardsley v The Queen was an appeal, out of time, against conviction and, in those circumstances, trial counsel knows or ought to know in the majority of cases precisely the point of the proposed appeal. Consequently, the Court has decided that in those situations, a person wishing to apply for legal aid should file a notice of appeal or an application for leave to appeal within the time prescribed pending the determination of the application for legal aid: Butler (1989) 44 A Crim R 215 per Malcolm CJ at 216. It is an entirely different context, however, when counsel is waiting, as in the instant case, for third parties, over whom he may have little influence, to do things such as provide expert reports necessary for the further prosecution of a claim regularly instituted within time.

66 In assessing the interests of justice, the learned Judge referred to the conduct of the appellant's legal advisers in the context of the earlier delay and the non-compliance with court orders and described it as suggestive of deceit. This serious reflection on their professional behaviour is considered later in these reasons; however, it is appropriate at this point to note that the conduct of the appellant's legal advisers was not the only issue for evaluation when considering the question of the interests of justice.

67 As counsel for the respondent asserts, it may well be fundamental to the interests of justice that parties comply with court orders: Hawter v Stevens; Chesson v Green at [13] - [14]. However, it is as fundamental to the interests of justice that a meritorious claim should be brought on for trial: cf Birkett v James [1978] AC 297 per Lord Diplock at 321 - 322. Consequently, what was required in this case was some form of preliminary assessment of the merits of the appellant's claim. Instead, little regard was given to considering whether or not the appellant has an arguable case, as evidenced by his Honour's conclusion that '[o]n the face if it I cannot conclude that the plaintiff's case is hopeless'. As set out above, this assertion appears to reflect a limited understanding of the substance of Dr Beaumont's expert evidence. On any view, that report is indicative of a prima facie meritorious case.

68 The learned trial Judge noted that the extension of time would have resulted in no specific prejudice to the respondent, and counsel for the respondent was unable to point to any specific or particular prejudice. The only prejudice his Honour found was the continuation of the litigation. Although delay may give rise to an inference of general prejudice to the party affected: Chesson v Green at [13] - [14]; Roddan v Gwilliam at [38]; counsel for the appellant submits that delay, of itself, is not sufficient to warrant the refusal of an extension of time, relying upon Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185. In that case, the only significant prejudice suffered by respondents was a comparatively short period of delay, which the court was satisfied 'could have been remedied by an appropriate order for costs': at [20]. The delay in that case was between when the relevant order should have been complied with and when it was in fact complied with, a period of less than one month. Admittedly, the corresponding period in question in the present case is substantially longer.

69 Counsel for the respondent relies on the case of Micallef v ICI Australia Operations Pty Ltd at [59] - [60] to counter the appellant's assertion that delay, of itself, is not a serious form of prejudice. However, that case may be distinguished in three ways. First, there is no question in the instant case that the delay is likely to have created a risk of impairment of memories or an increased risk of witnesses becoming unavailable. Secondly, it is not suggested that the appellant is impecunious thereby rendering cost orders ineffective. That is not to say that costs will always present a sufficient remedy: Ketteman v Hansel Properties Ltd [1987] AC 189 per Lord Griffiths at 220; cited with approval in Commonwealth v Verwayen (1990) 170 CLR 394 per Toohey J at 464 - 465; Gaudron J at 482. Rather, the sufficiency of a costs order will depend on the circumstances of the case. It is relevant to observe, however, that in both Ketteman v Hansel Properties Ltd and Commonwealth v Verwayen the issue of the adequacy of a costs order was considered in the light of whether or not leave should be granted to allow a late amendment which would materially alter the pleadings and therefore the case put. Finally, now that the root cause of the delay in these proceedings has been removed, that is, the appellant has now secured Dr Beaumont's report, there is nothing to suggest that the appellant will not now, if time were extended, comply with court orders and proceed expeditiously.

70 Because the appellant has instituted fresh proceedings, apparently as a protective measure pending the outcome of this appeal, counsel for the respondent argues that the only prejudice to appellant is that she might have to pay the costs of the first action. Two matters need to be addressed in this regard.

71 The fact that the appellant has instituted fresh proceedings does not necessarily avoid the risk of complete loss of the appellant's cause of action. That is because the fresh proceedings might be stayed or dismissed as an abuse of process if, for example, the plaintiff has acted as his Honour has found (at [26]), contumeliously: Birkett v James per Lord Diplock at 321 - 322. Consequently, the question of whether or not there is a basis for a finding of contumelious conduct, which is addressed later in these reasons, takes on an added importance. If, on the other hand, there is no basis for a finding of contumelious conduct, there is very little utility in a strike out order if the proceedings are going to be recommenced in any event. Multiplicity of actions should be avoided whenever possible: Supreme Court Act 1935, s 24(7). At least in circumstances where there is no finding of contumelious conduct, there is much to commend the dictum of Gaudron J in FAI General Insurance Co Ltd v Southern Cross Exploration NL at 288, as relied upon by counsel for the appellant:

Where an order for dismissal does no more than effect a situation in which fresh proceedings may be brought ... then it seems to me that the administration of law and justice may be well served by a power to reinstate proceedings.

72 As the appellant has a prima facie case, the prejudice to her in refusing to extend time is of significantly greater magnitude than the prejudice to the respondent if time were to be extended. Further, prejudice to the respondent, if time were to be extended, can satisfactorily be ameliorated by appropriate orders, including as to costs.

73 The final ground of appeal concerns the adverse findings or observations made by his Honour about the conduct of the appellant's legal advisers. These findings were that the appellant's legal advisers were not being fully frank and forthcoming in their explanations about delay; that they were engaging in conduct suggestive of deceit; and, that they were acting contumeliously. Counsel for the appellant submits that these findings were not based on the evidence and that no opportunity was afforded to the appellant or to her counsel to respond to them. Counsel for the respondent submits that each of these findings was open to his Honour in the light of the history of the proceedings and the inadequacy of the explanations as to delay.

74 Regardless of whether these were actual findings - as opposed to observations - it is clear that they were highly prejudicial and influential in the ultimate exercise of discretion to dismiss the appeal from the decision of the Registrar. The question then is whether or not they were open to his Honour on the evidence and in view of the manner in which the appeal had been conducted. In the light of this question, each of these findings is considered in turn.

75 First, counsel for the appellant submits that in considering the overall conduct of the action up until the pre-trial conference of 10 June 2004 ('PTC9'), his Honour reached the unwarranted conclusion that the appellant and her solicitors were not forthcoming or fully frank in explaining the delay and non-compliance with court orders. In response, counsel for the respondent says that these findings were open to his Honour, given the conduct of the appellant's legal advisers during this period. However, for reasons already set out, his Honour's findings concerning delay, and the assumptions underpinning those findings, were in error. On this basis alone, the appellant's submission must be accepted. Moreover, although one may say that these findings might perhaps not be fundamental to his Honour's conclusions in exercising his discretion, it would be quite erroneous to conclude that they were without material effect. Such an adverse finding is clearly prejudicial and is not to be treated as being inconsequential.

76 Secondly, counsel for the appellant submits that, in considering the non-compliance with the earlier orders, his Honour reached an unwarranted conclusion that the appellant's solicitors' conduct suggested deceit. Again, because of the errors in the reasoning of the learned Judge in assessing the period of delay, this submission must be accepted. One should be slow to infer deceit where, as in this case, there is no direct evidence of it. Moreover, to cloak an adverse finding in the language of intimation - that is, to say that the conduct of the appellant's legal advisers 'suggests deceit', rather than is deceitful - does not allay the effect of that language.

77 Finally, counsel for the appellant submits that his Honour's finding of contumelious conduct, in the context of the appellant's disregard of court orders, did not conform to the legal definition given to contumelious conduct and was in any case without basis. In the context of non-compliance with court orders, contumelious conduct occurs where there has been an intentional or deliberate flouting of the court's order without explanation: Re Jokai Tea Holdings Ltd (1993) 1 All ER 630 per Browne-Wilkinson VC at 637. See also National Australia Bank Ltd v Juric (No 2) [2001] VSC 398 at [4], where contumacy is defined as '[w]ilful and obstinate resistance or disobedience to authority'; and Micallef v ICI Australia Operations Pty Ltd per Heydon JA at [55], where his Honour said that the 'adjective "contumelious" conveys the sense of insolent, dishonest or opprobrious behaviour'.

78 Counsel for the respondent also relies upon these cases for the proposition that contumelious conduct may be inferred in certain circumstances. Thus, a persistent failure to comply with court orders, or disobedience to a 'peremptory' order, is generally to be treated as contumelious conduct: Re Jokai Tea Holdings Ltd at 636; Micallef v ICI Australia Operations Pty Ltd per Heydon JA at [55]. Relevantly, a 'peremptory' order of a court is an order 'providing for the dismissal of the action for non-compliance with its orders as to the time by which a particular step in the proceedings is to be taken': Birkett v James per Lord Diplock at 321; Micallef v ICI Australia Operations Pty Ltd per Heydon JA at [55]. However, as those cases make clear, the drawing of the inference also requires the absence of a satisfactory explanation for the non-compliance:

A satisfactory explanation on affidavit might negate an inference that the appellant's defaults were not intentional or contumelious. But the absence of any explanation permits that inference to be drawn: Micallef v ICI Australia Operations Pty Ltd per Heydon JA at [54].

79 In light of these authorities, and for the reasons canvassed when addressing the issue of delay, there is no basis upon which his Honour could have found that the appellant or her solicitors acted contumeliously. To the contrary, the affidavits of Mr D'Angelo and Mr Potter clearly show that efforts were being made to obtain the report of Dr Beaumont following the pre-trial conference of 10 June 2004. During this period the delay and non-compliance with court orders was largely the result of extraneous circumstances - that is the securing of legal aid, and thereby, an expert report - and is adequately explained. Further, given that the delay was largely attributable to the actions of third parties, over whom the appellants had no power of control, there is nothing to suggest that at the time the various court orders were made that the appellant's legal advisers believed anything other than that there was a reasonable chance that they would be able to comply with them. The question of delay prior to this period was not addressed by the appellant's solicitors simply because it was not put in issue in the proceedings before his Honour. To draw such an adverse inference in such circumstances is therefore unjustified. Looking back at the history of the proceedings, it is fair to say that the appellant's legal advisers should have acted with greater expedition and diligence, but to infer intentional and contumelious conduct on the available evidence is to go much too far.

80 The discretion to extend time is a 'very full discretionary power ... to be exercised with caution': FAI General Insurance Co Ltd v Southern Cross Exploration NL per Wilson J at 283. In respect of decisions involving discretionary judgments, such as the instant case, there is a strong presumption in favour of the correctness of the decision appealed from and an appellate court will be reluctant to set it aside unless convinced it is clearly wrong: Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 per Latham CJ at 519; Australian Coal & Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621 per Kitto J at 627. In the light of these propositions, Heydon JA, as he then was, in Micallef v ICI Australia Operations Pty Ltd at [45], distilled the limited circumstances in which a discretionary judgment might be overturned, as being:

made an error of legal principle;
made a material error of fact;

failed to take into account, or gave insufficient weight to, some relevant matter; or
arrived at a result so manifestly unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. [citations omitted]

81 In exercising his discretion, it is apparent that the learned Judge made several of those errors. On the issue of delay, and whether or not it was satisfactorily explained, his Honour over-emphasised the period leading up to the springing order and drew certain conclusions which were not available on the evidence on issues which had not been raised in the course of submissions. Conversely, his Honour discounted the efforts of the appellant's legal advisers in attempting to secure legal aid and Dr Beaumont's report in the period after the springing order. Further, his Honour gave no weight to the substance of Dr Beaumont's report, which is, prima facie, evidence of a meritorious case. The decision now under appeal also over-emphasised the prejudice to the respondent, when no specific prejudice could be identified and when any general prejudice resulting from delay could satisfactorily be ameliorated by appropriate costs orders. Finally, his Honour made several adverse findings about the conduct of the appellant and her legal advisers, including that it was contumelious and suggestive of deceit. On the evidence, these findings were not open. The decision is manifestly incorrect. In the circumstances of this case, the decision should be set aside, and the appellant be entitled to pursue her action.

82 Accordingly, in my view this Court should order that:

(2) The order of the District Court of Western Australia of 30 November 2005 dismissing the appeal by notice of 26 June 2005 from the order of Registrar Kingsley dated 9 June 2005 be set aside.

(3) In lieu thereof, the appeal from the decision of Registrar Kingsley of 9 June 2005 be allowed and it be further ordered that:

(a) the judgment in this action dismissing the appellant's claim with costs dated 26 October 2004 be set aside; and

(b) the time for the appellant to comply with order 1 of the Registrar at the pre-trial conference of 25 August 2004 be extended until 14 days after this decision.

(4) The respondent pay the costs of the appeal to the Judge of the District Court to set aside the default judgment and to extend time, to be taxed.

(5) The costs of the application to Registrar Kingsley to extend time to comply with the order of 25 August 2004 be reserved to a Judge in chambers at the District Court, or to the Judge at the trial of this action.

(6) The action be listed for a further pre-trial conference in the District Court at a date to be fixed within the next two months, and if not resolved at the pre-trial conference, and unless the parties otherwise agree, it then be listed for an early trial at a date to be fixed.

Aid and Advice Act 1949

Aid Commission Act 1976

Citation : OSGOOD v WHAM

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (177 paragraphs)

OSGOOD -v- WHAM [2007] WASCA 178 (31 August 2007)

Parties

Legislation Cited (3)

Cases Cited (8)

**Citation :** OSGOOD v WHAM

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (177 paragraphs)

OSGOOD -v- WHAM [2007] WASCA 178 (31 August 2007)

Parties

Legislation Cited (3)

Cases Cited (8)

Citation : OSGOOD v WHAM