On 25 January 2012, proceedings were commenced in the District Court of New South Wales by Ms Green against four defendants in relation to a stroke or infarct she suffered on 2 January 2009. The second defendant, Healthscope, operated a hospital at Baulkham Hills under the business name "The Hills Private Hospital". Ms Green had attended that hospital for treatment of various symptoms on a number of occasions from 23 November 2008.
Ms Green's pleaded case is that she complained of tingling sensations in various parts of her body, difficulties with cognition, upper limb weakness and loss of sensation and coordination. Ms Green alleged that these symptoms were the consequence of transient ischaemia and that the defendants, including Healthscope, failed to diagnose and treat her correctly. Her claim is that had she been treated correctly she would not have suffered the stroke on 2 January 2009.
On 21 June 2013, Healthscope filed a notice of appearance in the District Court proceedings. On 23 July 2013 the proceedings were transferred to the Supreme Court.
On 10 September 2013, Healthscope filed a notice of motion seeking an order that the statement of claim be struck out or the proceedings dismissed against Healthscope on the ground that at the time of service at its registered office in Melbourne on 18 June 2013, the statement of claim was stale because it had not been served by 25 July 2012. Ms Green filed a motion seeking an order that the time for service of the statement of claim be extended. Those motions were heard before Bellew J on 3 December 2013.
On 13 February 2014, his Honour delivered reasons for dismissing Ms Green's motion and dismissing the proceedings against Healthscope: Green v Healthscope Ltd t/as The Hills Private Hospital [2014] NSWSC 43.
On 13 May 2014, Ms Green filed a summons seeking leave to appeal against that decision. Leave was required as the order dismissing the proceedings is an interlocutory order: Supreme Court Act 1970 (NSW), s 101(2)(e).
On 4 August 2014, the Court gave notice to the parties that the matter was listed for a concurrent hearing on 20 February 2015, that is, the appeal was listed to proceed concurrently with the application for leave, subject to the granting of leave.
In the interim, on 3 October 2014, a notice of motion was filed in the proceedings below seeking an order to appoint Mr Marlyn Green, Ms Green's husband, as tutor for Ms Green. The remaining defendants did not consent to the order sought. Ultimately on 28 November 2014, a Registrar directed Ms Green's lawyers to approach the New South Wales Trustee and Guardian. The motion to appoint a tutor was stood over to 5 February 2015.
Unfortunately, Ms Green's lawyers seem to have been unaware of the procedure under the rules governing proceedings by a person under legal incapacity: see Div 4 of Pt 7 of the UCPR. A person under legal incapacity may not commence or carry on proceedings except by his or her tutor: r 7.14(1). Relevantly, a "person under legal incapacity" includes a person who is incapable of managing his or her affairs: r 7.13. UCPR r 7.15(1) contemplates that a person may become a tutor of a person under a legal incapacity without the need for any formal instrument of appointment or any order of the Court: see generally the discussion in Mao v AMP Superannuation Ltd [2015] NSWCA 252 at [2]-[5].
On 1 December 2014 the New South Wales Trustee and Guardian indicated to Ms Green's lawyers that it would not consider a proposal for appointment as tutor unless formal estate management orders were made under the New South Wales Trustee and Guardian Act 2009 (NSW). It seems that no further steps were taken by Ms Green's lawyers to progress the appointment of a tutor at that time.
In the absence of instructions from a tutor, Ms Green's lawyers were not in a position to proceed with the concurrent hearing on 20 February 2015. On that morning, by consent, the hearing date was vacated and Healthscope's costs of the vacation of the hearing and thrown away consequent on such vacation were reserved. The proceedings were stood over before the Registrar on 16 March 2015. Thereafter the proceedings were mentioned before the Registrar on 8 occasions between 16 March and 28 September 2015.
On 9 March 2015 proceedings were commenced on behalf of Ms Green by summons filed in the Equity Division of the Supreme Court seeking a declaration that Ms Green is incapable of managing her own affairs and an order appointing the New South Wales Trustee and Guardian as manager of her estate. On 29 April 2015 the management application was stood over to 3 June 2015 in order to allow additional time to obtain expert evidence and file the necessary affidavits required by UCPR r 57.7 to satisfy s 41 of the New South Wales Trustee and Guardian Act.
Ms Joel (Joelle) Matar, a solicitor in the employ of Brydens Lawyers, gave evidence that she assumed day-to-day conduct of Ms Green's file on 19 May 2015. On 25 June 2015, a consent to act as tutor was filed in the proceedings below. It was Ms Matar's unchallenged evidence that her understanding at that time was that this consent would suffice for the purpose of obtaining instructions as to the conduct of proceedings in this Court, given that the summons for leave to appeal stemmed from a judgment of Bellew J in the proceedings below. That understanding was wrong. The proceedings in this Court are separate to the proceedings below. It was necessary for the tutor to file in these proceedings the documents required under UCPR r 7.16, namely the tutor's consent to act as tutor and a certificate, signed by the tutor's solicitor, to the effect that the tutor does not have an interest in the proceedings adverse to that of the person under legal incapacity.
On 20 July 2015, Ms Matar withdrew the management application in relation to Ms Green's estate by causing to be filed a notice of discontinuance.
On or about 28 July 2015, Ms Matar obtained instructions from the tutor to discontinue the summons for leave to appeal. Ms Matar communicated those instructions to the solicitor for Healthscope on 28 July 2015 and inquired whether Healthscope would agree to bear its own costs. Ms Remedi, the solicitor for Healthscope, informed Ms Matar that she would seek instructions. Ms Matar drafted proposed consent orders and emailed a copy to Ms Remedi on the same day.
The summons was mentioned before the Registrar on 29 July 2015 and stood over to 5 August 2015 in order to allow Healthscope's solicitors time to obtain instructions as to costs and for the parties to negotiate the terms of discontinuance. On 5 August 2015 the summons was again before the Registrar for directions. The solicitor for Ms Green mentioned an appearance on behalf of Healthscope and the matter was stood over by consent to 26 August 2015.
On 14 August 2015, Dr Dowla, the first defendant in the proceedings below, filed a notice of motion seeking leave to join Healthscope as a cross-defendant. In support of that application, Dr Dowla relied upon an expert report of Professor Mark Parsons, neurologist, dated 13 October 2014.
Professor Parsons expressed the opinion that: Ms Green should have been (a) transferred to Westmead Hospital within 24 hours of being assessed at the Hills Private Hospital (now known as Norwest Private Hospital) on 30 December 2008, or (b) assessed by another neurologist who had visiting rights to Norwest Private Hospital as an in-patient at that hospital within 24 hours of her presentation on 30 December 2008; or that (c) arrangements should have been made for her to see a neurologist in their consulting rooms within 24 hours of being assessed on 30 December 2008.
Professor Parsons expressed the further opinion that there was a better than 50% chance that earlier intervention may have changed the course of Ms Green's illness and prevented major cerebral infarction.
On 26 August 2015, there was no appearance on behalf of Healthscope on the directions hearing before the Registrar. The summons was stood over to 23 September 2015. On that date the summons was again listed for directions before the Registrar and stood over to 28 September 2015 for further directions. The Registrar noted that in the event the parties did not agree to the terms of discontinuance by that date, the matter would be referred to the Referrals judge.
On 25 September 2015, Ms Matar received advice from Mr Andrew Lidden SC of counsel that in light of the expert report of Professor Parsons and the cross-claim filed by Dr Dowla against Healthscope, it was no longer advisable that Ms Green discontinue her summons for leave to appeal. Ms Matar, having communicated that advice to the tutor, obtained instructions to proceed with the summons for leave to appeal.
On 28 September 2015 the summons came before Emmett JA as the Referrals judge. Ms Green's legal representative informed the Court that she intended to proceed with her summons for leave to appeal and to amend her summary of argument. His Honour granted leave to Healthscope to file and serve a notice of motion seeking dismissal of the proceedings for want of prosecution, gave directions for the filing and service of affidavits in respect of such motion and ordered Ms Green to pay Healthscope's costs of that directions hearing.
On 7 October 2015, Ms Green filed and served an amended summary of argument. On 11 October 2015, a consent to act as tutor was filed in this Court on behalf of Mr Green.
[2]
Relevant principles
It has been said that, when there has been no hearing on the merits, a court should be reluctant to make an order dismissing proceedings for want of prosecution or want of due despatch, unless there has been an intentional and contumelious default on the part of the plaintiff, or inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible: Birkett v James [1978] AC 297 at 318. Nonetheless, it has been observed that the stringency of that principle has been diminished by the enactment of ss 56-60 of the Civil Procedure Act 2005 (NSW): see State of New South Wales v Plaintiff A [2012] NSWCA 248 at [17] (Basten JA). Accordingly, it is now necessary to have regard to the "overriding purpose" referred to in s 56, being to "facilitate the just, quick and cheap resolution of the real issues in the proceedings": Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432 at [52] (Barrett JA).
The exercise of the power under UCPR r 12.7 to dismiss proceedings for want of prosecution involves a balancing exercise, in the course of which a variety of factors may be considered: Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [103].
[3]
Submissions
The essential contention of Healthscope is that the delay by Ms Green in the prosecution of her summons for leave to appeal was inconsistent with a just, quick and cheap resolution of proceedings and has "corroded" the ability of this Court to deliver timely individual justice to Healthscope, contrary to the requirements of the Civil Procedure Act, ss 56-60. Healthscope pointed to the summons for leave to appeal having been filed over 20 months ago, Ms Green's decision to discontinue and her subsequent "backflip" and decision to proceed with the summons.
Next it was contended that Healthscope had suffered prejudice because of the delay. Reference was made to Healthscope having incurred significant costs in dealing with the delays and that there was no evidence that either Ms Green or the tutor had the capacity to meet those costs.
Finally it was contended that Ms Green would not suffer prejudice if the summons was dismissed because the dismissal of the proceedings for want of prosecution is no bar to the commencement of further proceedings. Reference was made to Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367 at [41] and s 91 of the Civil Procedure Act and UCPR r 12.10(b). Healthscope also contended, in the alternative, that it should be inferred from the report of Professor Parson that Ms Green has a readily available defendant in the form of Dr Dowla and would not be prejudiced if she was unable to pursue her claim against Healthscope.
[4]
Disposition of application
It may be accepted that the delay in the prosecution of the summons for leave to appeal has been significant. Two discrete periods of delay can be identified. The first is the period leading up to the vacation of the hearing of the summons on 20 February 2015. The second is the period from 20 February 2015 to 11 October 2015, when consent to act as tutor was filed in these proceedings.
As to the first period, responsibility for the delay does not lie solely with the dilatory conduct of Ms Green's solicitors. As already mentioned, the remaining defendants in the proceedings below did not consent to the appointment of Mr Green as tutor for Ms Green. It was in those circumstances that Ms Green's lawyers, at the direction of the Registrar, approached the New South Wales Trustee and Guardian. Unfortunately, Ms Green's lawyers did not appreciate that a court order was unnecessary if a consent to act as tutor was obtained from an appropriate person and the consent filed, together with the required solicitor's certificate: see UCPR r 7.15(1).
Nonetheless having applied in the court below for an order appointing a tutor for Ms Green, Mr Creed of Brydens failed to take any active steps after 1 December 2014 to ensure that a tutor was appointed for Ms Green either in those proceedings or in this Court, prior to the hearing fixed for 20 February 2015. The period of delay of about 2 and a half months is not explained in the evidence. The delay is most regrettable as it had the consequence that Ms Green's legal representatives were not in a position to proceed with the hearing on 20 February 2015 and the hearing date was vacated.
Against this, it is not in dispute that Ms Green is a person under a legal incapacity following the stroke she suffered and is incapable of giving instructions to her lawyers. Ms Green bears no personal responsibility for the delay in appointing a tutor, or the vacation of the hearing on 20 February 2015.
As to the delay after 20 February 2015, again whilst regrettable, it has been explained by Brydens' unnecessary pursuit of the management application in the Court below before changing course and filing a consent to act as tutor in those proceedings on 25 June 2015, but erroneously assuming that such consent would also suffice for the purpose of the proceedings in this Court. Ultimately that error was corrected by the filing of the consent to act as tutor and the solicitor's certificate in these proceedings on 11 October 2015.
Insofar as the delay is also partly attributable to the instructions given by Ms Green's tutor, first on or about 28 July 2015, to discontinue the summons for leave to appeal and then about 2 months later, on 28 September 2015, to proceed with the summons, that change of position is readily explained by the disclosure to Ms Green's lawyers in the proceedings below on or about 14 August 2015, of the expert report of Professor Parsons which it is contended implicates Healthscope in the negligent treatment of Ms Green.
As to the alleged prejudice to Healthscope, it is relevant that it has now been joined as a cross-defendant in the proceedings below by the statement of cross-claim filed and served by Dr Dowla. If Ms Green is successful in obtaining leave to appeal and on the appeal itself, Healthscope will be in the position of having to face a direct claim by Ms Green rather than a claim by another defendant for contribution.
Insofar as Healthscope asserted prejudice in the form of incurring significant costs, there was no evidence of the amount of those costs. Nor was any evidence led by Healthscope as to the asserted incapacity of either Ms Green or the tutor to meet those costs.
I do not accept Healthscope's contention that Ms Green would not be prejudiced by dismissal of her summons. First, a fresh summons for leave to appeal would be well out of time and it would be necessary for Ms Green to obtain an extension of time under UCPR r 51.10(2). It may be readily inferred that Healthscope would oppose any extension of time. Whilst there are some similarities between the considerations relevant to the exercise of the Court's power to grant an extension of time under r 51.10(2) and the dismissal of proceedings for want of due despatch under r 12.7, it is significant that the former involves the grant of an indulgence, as to which Ms Green would have the onus, whereas the latter involves considerations upon which Healthscope bears the onus.
Secondly, Healthscope's contention that Ms Green has a readily available defendant in the form of Dr Dowla, even if correct, is not a sufficient reason for denying Ms Green the opportunity to pursue her negligence claim against Healthscope, if she is able to satisfy the hurdle for obtaining leave to appeal and her appeal succeeds. In any event, it would be entirely speculative for this Court to attempt to assess the likely prospects of Ms Green's negligence claim against Dr Dowla, including the possible impact on her claim of questions of proportionate liability.
Importantly, it was not argued by Healthscope that Ms Green's proposed appeal, if leave were granted, was unarguable or untenable. It is to be noted that Ms Green's amended summary of argument now makes reference to Weston (in his capacity as special purpose liquidator of One.Tel Ltd (in liq)) v Publishing and Broadcasting Ltd [2011] NSWSC 433; 83 ACSR 206 (Weston) at [133]-[142] (Ward J, as her Honour then was), an authority which seems not to have been drawn to the attention of the primary judge. It is unnecessary to express any view as to whether Weston and the authorities referred to in that case would be determinative of the application for leave to appeal in the present case.
The present case is distinguishable from the circumstances in Hobbs. There the evidence demonstrated that Mr Hobbs had a medical condition which prevented him from prosecuting his appeal with any measure of due despatch unless he had the assistance of lawyers and there was also a significant doubt that he would in any event be competent to instruct lawyers. The evidence also demonstrated that Mr Hobbs was aware of the desirability of retaining lawyers but had failed to obtain legal assistance. In addition, Mr Hobbs had shown himself unable to comply with the rules regarding proper filing and service of appeal books and related materials, including written submissions in respect of the appeal but was satisfied that without competent assistance he was simply unable to prosecute the appeal efficiently.
Here, a tutor has now been appointed for Ms Green, and an amended summary of argument has been filed and served. The matter is ready to be given a fresh hearing date. The only procedural matters outstanding are of a minor nature. The first concerns Ms Green's proposed change in name of the respondent to "Healthscope Operations Pty Ltd t/as Hills Private Hospital". That change of the respondent's name should be able to be dealt by consent. It is to be noted that Healthscope's notice of motion filed 6 October 2015, described the respondent by that name.
The second concerns an amended response by Healthscope to Ms Green's amended summary of argument, which counsel for Healthscope indicated would be necessary. This can be dealt with either by agreement between the parties, or directions given by the Registrar.
In these circumstances, I am not persuaded that Healthscope has made out a case for dismissal of Ms Green's summons for want of prosecution or want of due despatch.
[5]
Costs
As to costs, Healthscope submitted that it should have the costs of its notice of motion in any event, because the motion was required to bring matters to a head. Counsel for Ms Green submitted that costs should be reserved.
In my view, the circumstances of the present case warrant a costs order in favour of Healthscope notwithstanding the failure of its motion to dismiss the proceedings. Relevantly, both the consent to act as tutor and Ms Green's amended summary of argument, were only filed after Healthscope filed its notice of motion on 6 October 2015.
[6]
Orders
Accordingly, I make the following orders:
(1) Healthscope's notice of motion filed on 6 October 2015 be dismissed.
(2) Ms Green to pay Healthscope's costs of the notice of motion.
(3) Stand over the summons for leave to appeal before the Registrar on 19 October 2015 for the purposes of allocation of a hearing date and giving any further procedural directions as may be required.
[7]
Amendments
16 October 2015 - Typographical amendments made to paras 29, 30, 34, 36 and 45
16 October 2015 - All references to "Mr Matar" changed to "Ms Matar".
Paragraph 35: "Mr Matar" replaced by reference to "Brydens".
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Decision last updated: 16 October 2015
Parties
Applicant/Plaintiff:
Green
Respondent/Defendant:
Healthscope Limited t/as The Hills Private Hospital
Legislation Cited (4)
New South Wales Trustee and Guardian Act 2009(NSW)s 41
Solicitors:
Brydens Lawyers Pty Ltd (Applicant)
Kennedys (Australasia) Pty Ltd (Respondent)
File Number(s): 2014/60131
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Common Law
Citation: [2014] NSWSC 43
Date of Decision: 13 February 2014
Before: Bellew J
File Number(s): 2012/25652