Applications for leave to appeal - Joinder of defendant - Capacity in which appellant sues - Programming orders - Turns on own facts

Applications for a stay of programming orders and springing order made by primary Judge - Turns on own facts

FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268

Morgan v Banning (1999) 20 WAR 474

Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185

The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40

Westland Healthcare Ltd v Avsar [2006] WASCA 230

Wilson v Metaxas [1989] WAR 285

1 PULLIN JA: I agree with Buss JA and I have nothing to add.

2 BUSS JA: By appeal notice dated 4 December 2006, the appellant applied for leave to appeal from the decisions of Judge Sleight, in pending District Court action CIV 3175 of 1997, to dismiss:

(1) the appellant's application, by chamber summons dated 18 October 2006, for leave to add Fremantle Hospital as a defendant to the pending District Court action; and

(2) the appellant's application, by chamber summons dated 20 November 2006, for leave to amend the capacity in which she sues as plaintiff in the pending District Court action, to enable her to sue in her personal capacity.

3 Further, by the appeal notice dated 4 December 2006, the appellant applied for leave to appeal against various programming orders made by Judge Sleight, in the pending District Court action, on 27 November 2006.

4 Also, by an interim application dated 21 December 2006, the appellant applied for a stay of the programming orders made by Judge Sleight on 27 November 2006, and a stay of a springing order made by his Honour on 19 December 2006 as a result of the appellant having failed to comply with some of the programming orders made on 27 November 2006. The date fixed by the springing order for compliance with the programming orders in question was 8 January 2007. There is a dispute between the parties as to whether the springing order has sprung.

5 The background facts relating to the pending District Court action are recounted in the reasons of Pullin JA in Westland Healthcare Ltd v Avsar [2006] WASCA 230, which were published on 3 November 2006. It is unnecessary to repeat them.

6 In general, an applicant for leave to appeal must demonstrate that the relevant decision was wrong or at least attended with sufficient doubt to justify the grant of leave, and that substantial injustice would occur if the decision were left unreversed. See Wilson v Metaxas [1989] WAR 285 at 294. It must be emphasised, however, that these are not rigid or exhaustive requirements, and leave may be granted if, in all the circumstances, it is in the interests of justice to grant leave. See The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 at 56 - 57.

7 I will deal, first, with the application for leave to appeal against Judge Sleight's decision to refuse leave to add Fremantle Hospital as a defendant. His Honour's reasons for that decision were these:

"In relation to this matter, in my opinion there is no evidence before me that the plaintiff has any basis for a claim against the Fremantle Hospital. The claim against the Fremantle Hospital is prima facie out of time. It is not correct to say that the claim is not subject to a statutory period of limitation. A statutory period of limitation does not run from the time Mrs Avsar was given letters of administration. Any cause of action in this matter would date back to 1995 is [sic. as] recognised in the decision of the Court of Appeal which was handed down on 3 November 2006. In the circumstances I believe that it would be an abuse of process to allow the Fremantle Hospital to be joined at this late stage in the proceedings and accordingly I dismiss the application and I further make an order that the plaintiff pay the defendant's costs."

8 In my opinion, Judge Sleight's decision to refuse leave to join Fremantle Hospital as a defendant was not wrong or attended with sufficient doubt to justify the grant of leave. Further, I consider that substantial injustice would not occur if his Honour's decision were left unreversed. My reasons are as follows. First, the pending District Court action was commenced on 31 January 1997. The proceedings relate to events which occurred in 1995 and 1996. There has been significant delay in the prosecution of the pending District Court action. It was first listed for trial in June 2004, but adjourned on the application of the appellant. The trial of the preliminary issue of negligence and causation was listed to commence on 27 November 2006, but adjourned on 31 October 2006 in consequence of matters personal to the appellant. The trial of the preliminary issue has now been listed for five days, commencing on 12 March 2007. It is apparent that there has been delay in making the application to join Fremantle Hospital as a defendant. Some of the delay has been explained by the appellant. If the application were to be granted, then the trial of the preliminary issue would have to be adjourned and would be unlikely to be relisted until in or about 2009. It is not in the public interest, and it is against the legitimate expectations of the respondent, for the trial of the preliminary issue to be adjourned (again) indefinitely. Secondly, it appears that the limitation period applicable to at least some of the alleged causes of action against Fremantle Hospital has expired. Thirdly, if the appellant does have a reasonable cause of action against Fremantle Hospital which is not statute barred and has not been released, the appellant may, if she thinks fit, commence separate proceedings against the Hospital.

9 I would refuse the appellant leave to appeal against Judge Sleight's decision to refuse leave to join Fremantle Hospital as a defendant.

10 I turn now to the application for leave to appeal against Judge Sleight's decision to refuse the appellant leave to amend the capacity in which she sues. His Honour's reasons for that decision were these:

"The plaintiff's application is that she be joined in her personal capacity by amending an order made by his Honour Judge Chaney on 20 September 2006 [sic. 2005]. The only purpose such an order could have is to enable the plaintiff to proceed with a claim in her personal capacity to claim damages beyond damages claimable under the Fatal Accidents Act in [sic. and] the Law Reform (Miscellaneous Provisions) Act.

I had previously made an order on 9 June 2006 giving leave to the plaintiff to amend her statement of claim to include a claim for personal injuries in the form of psychiatric illness. This order was the subject of an appeal and the Court of Appeal in a decision dated 3 November 2006 refers to my order. It is clear from the decision of his Honour Pullin J that his Honour took the view that any claim by Mrs Avsar is statute barred and that leave should not be given to her to make a claim at this stage.

I refer to paragraph 16 of his decision, therefore I see no basis for allowing Mrs Avsar to be joined in her personal capacity as to allow such an order would be in conflict with the decision of the Court of Appeal. Accordingly I dismiss the application and I order that the plaintiff pay the defendant's costs."

11 In my opinion, Judge Sleight's decision to refuse the appellant leave to amend the capacity in which she sues was not wrong or attended with sufficient doubt to justify the grant of leave.

12 In Morgan v Banning (1999) 20 WAR 474, the Full Court of the Supreme Court of Western Australia held that O 21 r 5 of the Rules of the Supreme Court 1971 (WA) and the "relation back" rule cannot operate to override the effect of the Limitation Act 1935 (WA). Wheeler J (with whom Ipp J agreed, and Owen J agreed subject to adding a brief comment of his own) said, at 483:

"First, if the writ when issued, although defective, is not a nullity, and its terms are wide enough to encompass the amendments sought to be made to clarify or particularise or 'cure' it, then it seems that no question of limitation arises. Such an action is within time and subsequent steps (even those directed to defects in the original indorsement) are merely steps taken in a validly instituted action with respect to which it is not necessary to consider limitation questions. However, if it is so irregular that, subsequent to the expiry of the limitation period, the defendant is successful in having it wholly set aside, it will then be too late for the plaintiff to bring a further action.

The second proposition which seems to me to follow is that if the defective indorsement appearing on the writ when issued, is not of a type which is capable of encompassing amendments sought to be made after the expiry of the limitation period, so that the amendments truly 'add' an additional and time barred cause of action (rather than particularising, clarifying, or expanding one already instituted) then, whether leave to amend is granted or not, the new action remains time barred. Whatever the rules of court may provide, an action which is in fact instituted out of time is able to be defeated by reliance upon the Limitation Act, which the court has no power to override, whether by a procedural rule of 'relation back' or otherwise."

13 In Westland Healthcare Ltd v Avsar [2006] WASCA 230, this Court considered applications for leave to appeal and cross-appeal by the present respondent and appellant respectively, concerning various interlocutory orders made by Judge Sleight in the pending District Court action. Pullin JA, in his reasons, referred to limitation issues which would arise in the event that the present appellant (Mrs Avsar) sought an order from Judge Sleight for an amendment to the capacity in which she sued. His Honour said, at [16]:

" ... If Mrs Avsar had made an application to be joined as a party so as to bring a claim in her personal capacity for damages of the sort contemplated by the decision in Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317, it would have been an attempt to add a time barred cause of action. If there is doubt about whether a limitation period has expired, the appropriate course is to allow the issue to be dealt with at trial, but in this case there is no question about when the alleged cause of action arose and there is no doubt that it is statute barred. Mrs Avsar made it plain in her submissions to this Court that the damage allegedly suffered by herself (and the four grandchildren) was first suffered in 1995."

14 It is plain, on the basis of the decision in Morgan, that O 21 r 5 and the "relation back" rule cannot operate to override the effect of the Limitation Act and enable Mrs Avsar to be joined as a party in her personal capacity so as to prosecute a statute barred cause of action for damages against the respondent.

15 I would refuse the appellant leave to appeal against Judge Sleight's decision to refuse the appellant leave to amend the capacity in which she sues.

16 I turn now to the application for leave to appeal against the programming orders made by Judge Sleight on 27 November 2006.

17 I am satisfied that Judge Sleight did not make any material error of law or fact in making the programming orders in question. The orders which his Honour made on 27 November 2006 were fair and reasonable, having regard to the papers and other information before his Honour on that date. His Honour's decision was not wrong or attended by sufficient doubt to warrant the grant of leave. Further, I am not persuaded by the additional information which the appellant has placed before this Court, that the programming orders should not have been made. I would dismiss the appellant's application for leave to appeal against the programming orders made on 27 November 2006.

18 I turn now to the appellant's application for a stay of the programming orders made by Judge Sleight on 27 November 2006 and a stay of the springing order made by his Honour on 19 December 2006.

19 The appellant has failed to obtain a grant of leave to appeal in respect of Judge Sleight's decisions relating to the joinder of Fremantle Hospital, amending the capacity in which the appellant sues and the programming orders made on 27 November 2006. In those circumstances, there is no basis for the granting of a stay of the programming orders made on 27 November 2006 or the springing order made on 19 December 2006. Further, the time for compliance with those orders has passed. As I have mentioned, the springing order made on 19 December 2006 required the appellant to comply with the programming orders the subject of the springing order by 8 January 2007, and there is a dispute between the parties as to whether the springing order has sprung or not. That dispute should be resolved in the District Court. If the springing order has sprung and the appellant wishes to make application to extend the time for compliance with the springing order, that application should be made in the District Court. Generally, see FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 at 286; Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185 at [4].

20 In summary, for the reasons I have given, I would dismiss all of the appellant's applications.