Plaintiff v BRIDGE STREET CLINIC

Supreme Court of Victoria|1998-11-27|Before: Mandie, J.

PRACTICE AND PROCEDURE - application to set aside self-executing order dismissing proceeding - principles applicable where limitation period has not expired - plaintiff under disability.

In this proceeding, on 9 December 1997, Teague J. ordered that the proceeding be referred to a mediator to be appointed by agreement, such mediation to take place no later than 30 June 1998, and that if the mediation was not completed by that date "the proceeding should be dismissed with no order as to costs". The mediation was not commenced, let alone completed, by that date, and the proceeding stands dismissed by force of the order. By summons dated 21 July 1998, the plaintiff seeks an order "that this action be reinstated".

Rule 24.06 empowers the court to set aside or vary orders dismissing proceedings for non compliance with an order of the kind made by Teague J. on 9 December 1997 and, as I understand it, that is in substance what the plaintiff seeks - an order setting aside or varying Teague J.'s order which would have the effect of reinstating the proceeding.

The court has a discretion under rule 24.06 which, in my view, should only be exercised if the justice of the case requires it. That brings into play the factors which I discussed in Caruso v. Jafer (18 June 1988, unreported). The reason for the delay should be explained. Some merits of the case should be shown. The question of the prejudice to the defendants should be considered, but in the absence of the expiry of a limitation period, and subject to what I will say later, the period to be considered when looking at prejudice is the period after the proceeding was so dismissed.

If the case would be dismissed for want of prosecution if such an application were made, then it is clearly futile to reinstate the proceeding if the limitation period has expired. I note that was the case in Caruso. If the reinstatement of the proceeding is the only way in which the plaintiff's cause of action can survive, then the kinds of considerations referred to by McHugh J. in Brisbane South Regional Health Authority v. Taylor, [1996] HCA 25; 186 CLR 541 come into play.

On the other hand, if the limitation period has not expired, as in this case, the plaintiff may find it an easier task to obtain the favourable exercise of discretion.

I turn to the facts and circumstances of the case and the proceeding. The plaintiff was born on 24 February 1982. The writ was issued on 11 February 1986 at the suit of the plaintiff by his next friend, his father, claiming damages for medical negligence against a firm of medical practitioners (the first defendant clinic) and the Prince Henry's Hospital (the second defendant).

The writ was issued by Lawrence W. Maher of Slater and Gordon as solicitors for the plaintiff, but shortly thereafter the firm of Howie & Maher became the solicitors for the plaintiff and remained so until September of this year. The mode of trial requested was a judge and jury of six. The statement of claim alleges that the plaintiff was taken to the defendant clinic on a number of occasions in December 1982 and January 1983 in relation to an illness exhibiting a variety of serious symptoms, and that the plaintiff was taken to the defendant hospital on 1 January 1983 in relation to the same illness.

It is further alleged that at all material times the plaintiff had chronic meningitis but was not correctly diagnosed until admission to the Royal Children's Hospital on 14 January 1983. Negligent treatment and negligent diagnosis are alleged against the defendants, and there is a detailed list of particulars of negligence attacking every aspect of diagnosis and treatment with a considerable degree of specificity. The injuries include permanent and irreversible brain damage and spastic quadriplegia. It is common ground that the plaintiff is under a permanent disability, and, as I understand it, that he is of unsound mind within the meaning of the Limitation of Actions Act.

By August 1989 all interlocutory steps between the plaintiff and the defendants were completed. In November 1988 the plaintiff had consented to the joining by the defendant clinic of two third parties (two other medical practitioners) against whom indemnity or contribution was sought. In March 1990, counsel advised the plaintiff that the third parties not be added as defendants. In August 1990 an expert's report was sought, some difficulties were experienced, but two years later still no report had been obtained. It may be that an earlier report had been obtained but it appears that some further report was required and that was not obtained.

The proceeding had been moving at a leisurely pace before that but the two year gap from August 1990 to August 1992 was really inexcusable. There is no rational explanation for it. A notice of intention to proceed had been given by the plaintiff on 8 July 1991 but nothing of substance was done thereafter. In late 1991 or early 1992, Mr Cunningham of Howie & Maher took over conduct of the matter from Mr Maher. He has sworn two affidavits which are relied upon by the plaintiff, and he has been cross-examined upon them.

Counsel was briefed to advise on evidence and quantum in August 1992 and his advice was not received until February 1994. No explanation is advanced for this further delay. As I understand it, by February 1994 a period of five and a half years had gone by during which nothing productive had been done by the plaintiff other than obtain that advice.

Counsel requested a conference and there was a delay whilst legal aid was obtained. At the same time, contact was lost with the plaintiff's family for six months and this resumed in August 1994. The conference was held in September 1994 and counsel recommended further preparatory steps. These steps were taken in 1995. Why it took the rest of 1994 and the whole of 1995 to take these steps was also the subject of no rational explanation. But worse still, nothing at all happened in 1996 or in 1997 until in May 1997 when a notice of intention to proceed was given by the plaintiff.

On 19 June 1997 Teague J. ordered, inter alia, on the papers, that rule 34.05 should not apply to the proceeding. Still the plaintiff did nothing - no directions were sought as invited by the order.

On 6 November 1997 the plaintiff's solicitor did not attend the directions hearing before Teague J. All other parties were represented. The order of that date directed that the plaintiff, his next friend and solicitor be put on notice that unless cause was shown to the contrary on 9 December 1997, the proceeding could be dismissed. Despite this warning, no significantly greater degree of care or expedition was subsequently displayed than had been shown in the previous six or seven years.

A timetable was agreed between solicitors and incorporated by the court into the order of Teague J. dated 9 December 1997 which included in the court's form of order the self-executing order which has since taken effect. A copy of the order was provided to the plaintiff's solicitors by fax from the Court on 16 December 1997. I am satisfied that the solicitor did not carefully read the order or the fax prior to 30 June 1998 when the self-executing order, of which he was unaware, took effect. The order was not complied with in other respects as well, in that the list of special damages was not filed.

The arrangement of the mediation seems to have been left to the eleventh hour as nothing was done from December 1997 to late May 1998. It did not take place.

Overall, I have not the slightest doubt that the plaintiff's delays in the prosecution of this proceeding, whilst not intentional, have been both inordinate and, in very large part, inexcusable.

So far as the question of potential dismissal for want of prosecution is concerned, I consider that inordinate and inexcusable delay on the part of plaintiff's lawyers has been shown. The main enquiry is whether, in the light of the well known authorities, the delay has given rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or that the delay is such as is likely to cause or have caused serious prejudice to the defendants, either between themselves and the plaintiff, or between each other or between them and the third parties.

In this case, there is no positive evidence that any critical witnesses are unavailable. There is no suggestion that relevant medical records do not remain in existence and at hand. There is no evidence to suggest that statements from relevant medical practitioners and other key witnesses were not taken long ago and are not available to the parties. However, I would readily accept that memories would have faded with the passing of time, and the quality of the evidence might be substantially affected.

Mr Gillies QC, who appeared with Mr Noonan of counsel for the defendants, submitted that the allegations made by the plaintiff against both defendants placed great reliance upon and highlighted the importance of the history of symptoms suffered by the plaintiff in late 1982 and early 1983, and particularly so far as the hospital is concerned, on 1 January 1983, and that the importance of that history related not only to what was said, but also to the manner in which the information was conveyed as to the severity of symptoms suffered by the plaintiff, the persistence of those symptoms, the reaction of the plaintiff to the symptoms suffered, the pattern of the plaintiff's behaviour at the time he was examined and the severity of symptoms allegedly suffered by the plaintiff at the relevant time or times.

Mr Gillies submitted that having regard to the effluxion of time caused by the delay in the prosecution of the proceedings, it could not be denied that the recollection of all relevant witnesses would be detrimentally affected, and I agree. He submitted that whilst medical records in respect of the plaintiff's attendances at the first defendant's clinic and the second defendant's hospital exist, the records would necessarily be of limited assistance having regard to the importance of the matters to which reference had been previously made by him. I was referred to Latrobe County Credit Co-Operative Limited v Roger David Midgley Smith & Ors, Supreme Court of Victoria, Court of Appeal, unreported, 14 October 1998 at page 16.

It was further submitted by Mr Gillies that delay of the extent caused by the plaintiff's inactivity in the prosecution of these proceedings was such that the prejudice that it may have caused to the defendants could be of such a nature that it may not now be recognised by the defendants themselves, and I was referred to Brisbane South Regional Health Authority [1996] HCA 25; (1996) 186 CLR 541 at 551, McHugh J and Herron v. McGregor & Ors (1986) 6 NSWLR 246 at 254 (another judgment of McHugh J.).

Mr Gillies emphasised the risk that a fair trial would not be had by reference to the matters that I have just referred to, and he also relied upon the interest which the medical practitioners who were defendants had in having this matter determined, and the prejudice they suffered by reason of allegations, serious allegations against their professional competence, being made and hanging over them for such a lengthy period of time.

He referred to Bourke v. Kecskes [1967] VicRp 117; [1967] VR 894 at 898 and Bishopsgate Insurance Australia Ltd v. Deloitte Haskins & Sells (9 September 1994 unreported at p.52).

I am (not without some hesitation) of the view that the delay in this case in the light of the evidentiary issues that will arise is such that there is a substantial risk that it is not possible to have a fair trial of the issues in the action. I am of the view (again not without some hesitation) that the delay is such as is likely to cause serious prejudice to the defendants, both between themselves and the plaintiff, and between each other and between them and the third parties. On balance, I think it is unrealistic to come to any other conclusion although there is no positive evidence as I have said of missing witnesses or records. The issues relating to professional negligence are such that they will inevitably depend on recollections which at this time - when I say at this time, at the time when the trial finally comes on which would again be significantly delayed - would be likely to create real problems for the tribunal of fact.

So I think, on balance, that those two factors are made out by the defendants. Were it not for the question that is raised by the fact that the limitation period has not expired, I would be of the view that the proceeding would have been dismissed for want of prosecution had such an application been made, and it is therefore futile to reinstate the proceeding.

However, Mr Rush QC, who appeared with Ms Bourke of counsel for the plaintiff, pointed to the authorities in relation to the question of the period of limitation, and in particular to what was said in Birkett v. James in the House of Lords, 1978 AC 297 at 320 per Lord Diplock, 328 per Lord Salmon, 336 per Lord Edmund-Davies and what was said by the Victorian Full Court in Deneir v. Beicht [1982] VicRp 31; [1982] VR 331 at 335 per Lush J., where, in that latter case, His Honour said:

"It has been established and accepted in this jurisdiction since Birkett v James that the fact that it is possible for plaintiffs to begin a second action within the limitation time is one of the strongest reasons for refusing an order for dismissal on the ground referred to."

Mr Gillies submitted that those authorities should be distinguished because in the present case, the plaintiff being of unsound mind, the limitation period will never expire. He will remain under a disability, and accordingly, the authorities which contain those expressions of opinion were decided in the context of fixed limitation periods, and are inapplicable to a situation where legal practitioners could forever come to the court and say that however long the delay, however much prejudice there had been to the defendant, it remained open to the plaintiff under a disability to issue a further proceeding.

The answer to that I think is provided by the case to which Mr Rush referred of Williams v. Zupps Motors Pty Ltd (1990) 2 Qd. R. 493, a decision of the Full Court of the Supreme Court of Queensland. That was a case in which the appellant had been injured when he was six years old, severely injured in a motor vehicle accident, and at all material times had been of unsound mind as a result of the accident.

It appeared unlikely that he would ever cease to be under a disability within the meaning of the Queensland Limitation of Actions Act and, consequently, there was no statutory time bar to the commencement or continuation of his action. In 1973 he commenced proceedings separately against the two defendants. Those proceedings lay dormant. An action commenced against both defendants in 1977 was dismissed by the court in 1984 for want of prosecution.

On 7 October 1988, the writ in the action under consideration was issued, more than 22 years after the appellant's injury, and the statement of claim was delivered in January 1989, some 23 years after the accident. The Master stayed the proceedings. The Full Court allowed an appeal from the Master's order.

Thomas J. considered, and I refer to his judgment at pp. 494-495 of the report, that although a very lengthy delay was bound to affect the reliability of the witnesses and to cloud their recollections, and that all parties were thereby prejudiced, the plaintiff's agents were responsible, that was not decisive in the context of an application to stay a proceeding as an abuse of process. He said at page 495:

"This is not to say that the cumulative effect of further delay, wasted proceedings or other vexatious or oppressive conduct would necessarily be insufficient for the respondents to succeed upon a further application of this kind in this or another action. The factors which to my mind militate against identifying the present action as an abuse of process at this stage are the facts that the case is now ready for trial; the defendant driver has been found and the investigating police officer is still alive. In the circumstances it is preferable that the litigation be ended by a determination of the issues rather than by stay of action. The present action should not be regarded as an abuse of process."

Ambrose J said at pages 488 and 489 after referring to Birkett v. James that there could be exceptional cases where an institution of fresh proceedings might constitute an abuse of process. Ambrose J. considered that there was nothing which would make it unfair or oppressive for the appellant to pursue his action, notwithstanding that it would be difficult for the respondents to call reliable evidence as to events that occurred during a period 23 years ago.

That case was a lot stronger than the present, I would have thought, much stronger in relation to prejudice. In my opinion, it is not possible to say in this case that there is any potentiality for a further proceeding issued by this plaintiff to be stayed as an abuse of process. For that reason, I see no reason to accept Mr Gillies' invitation to distinguish the authorities upon which Mr Rush relies.

The limitation period has not expired. There are therefore powerful reasons why an application to dismiss for want of prosecution would not succeed. I think such an application would fail for those reasons. It follows that it is not futile to reinstate the proceeding.

Ultimately, the question is whether, looking at the position of each party, justice requires that the discretion of the court be exercised favourably and the proceeding be, in substance, reinstated.

The plaintiff has a case of very serious injuries, and a claim which is prima facie not unmeritorious. The delays have been explained in the sense that they are ones of neglect by the practitioner. The infant plaintiff bears no blame. The time for a mediation would doubtless have been extended if application had been made in time. The dismissal was of a procedural nature albeit most serious.

As I have already indicated, the plaintiff would be able to reissue fresh proceedings, so the defendants are not protected from the prejudice which I have found does exist. The plaintiff would simply be penalised in costs. In all the circumstances, I think that justice requires that the order of Teague J. be varied in an appropriate fashion so as to reinstate the proceeding. I will hear the parties as to what further directions should be made to put the case on track for a speedy hearing.

At a glance

Court

Decision date

Before

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Judgment (42 paragraphs)

Parties

Cases Cited (2)