Zakaria v Dr Noyce

Supreme Court of NSW|2012-08-23|Before: Davies J, Harrison J

Judgment 1This is a Notice of Motion to set aside an order made by Harrison J on the basis that it is said to be invalid and of no effect on the grounds of a denial of natural justice. The Motion also sought leave to continue the proceedings which his Honour dismissed. 2The proceedings commenced on 14 October 2008 with the Plaintiff acting for herself. The Statement of Claim alleges negligence on the part of the Defendant, an ear, nose and throat surgeon who removed the Plaintiff's tonsils in October 2005. 3It is not clear if the Plaintiff prepared the Statement of Claim with legal assistance but two things suggest that she did. First, the Statement of Claim, although not an exemplar of pleading, contains legal phraseology that would not ordinarily be used by a non-legally qualified person. Secondly, evidence was given at the hearing of the Motion that the Plaintiff received legal assistance from three firms of solicitors at various times during the proceedings as well as assistance from her counsel, Mr Ryan. This matter is not without some significance for the issues raised. 4As the claim made was a professional negligence claim against a medical practitioner, the Plaintiff was obliged to comply with r 31.36 UCPR to file and serve with the Statement of Claim an expert's report that included an opinion supporting a breach of duty of care against Dr Noyce, the general nature and extent of the damage alleged and the causal relationship between the breach of duty and the damage. 5By a Motion filed 26 June 2009 the Defendant sought an order that the proceedings be dismissed for want of compliance with that rule. The Defendant's Motion was heard by Harrison J who delivered judgment on 7 August 2009. At the hearing of that Notice of Motion the Plaintiff was represented by Mr Ryan of counsel. 6His Honour held that the material upon which the Plaintiff relied for the application did not conform to the requirements of r 31.36. It appears from his Honour's judgment that Mr Ryan accepted that this was so because his Honour said: Mr Ryan, of counsel, who appears for the plaintiff, urges upon me that some further time should be permitted within which the plaintiff may be able to marshal professional medical expert opinion in her favour containing material which, if filed, will comply with the rule. It seems uncontroversial from the plaintiff's point of view that the rule has not yet been complied with, even having regard to the material contained in the bundle of medical reports upon which the plaintiff relies. In that regard, Mr Ryan sought a three month period. 7His Honour then said this: I indicated in the course of argument that it is my practice in an appropriate case in this list to make orders dismissing the proceedings for want of compliance but staying the operation of the order for an appropriate period, during which a plaintiff can, if he or she is able, to file evidence complying with the rule. It seems to me that this is such a case, although I am not inclined to grant a period of three months for that purpose. In my opinion, having regard to the nature and extent of the plaintiff's injuries and disabilities, howsoever they exist, it is in the interests of justice and in the interests of the quick and cheap disposition of these proceedings to permit her some short further period to obtain such evidence as she can that complies with the rule but under threat of the proceedings being automatically dismissed if she fails to do so. (emphasis added) 8His Honour then made these orders (inter alia): (1) The proceedings are dismissed. (2) I stay the operation of Order (1) for a period of six weeks from today's date. (3) I direct the plaintiff to file and serve any such expert report as she may be advised to rely upon in purported compliance with UCPR 31.36 within six weeks of today's date. (4) In the event the plaintiff complies with Order (3), Order (1) will be automatically discharged. 9Thereafter, the Plaintiff obtained a report from Dr Sacks of 28 August 2009 which, the Plaintiff acknowledged, did not deal with the issues required by r 31.36. 10Solicitors who had been acting for the Plaintiff, Symons Cottee Lawyers, (although they were never on the record) wrote to the solicitors for the Defendant on 18 September 2009 enclosing a further report of Professor Sacks of 15 September 2009. That report said in its entirety: RE: MRS ELIZABETH ZAKARIA DOB: 13/05/88 312 LEWERS CLOSE, ABBOTSBURY NSW 2176 This is to confirm that Elizabeth has had a modified barium swallow performed in the past and the video swallow was viewed by myself and Dr Lloyd Riddley, the Head of the Department of Radiology at Concord Hospital, at the end of last week. There certainly appears to be nasal regurgitation on the swallow and most certainly nasopharyngeal regurgitation. It must however be considered likely that the regurgitation is as a direct result of the surgical extensive tonsillectomy procedure. It would be considered highly unlikely that this regurgitation would have occurred had she not had the initial surgery performed. I consider that this complication would be uncommon in standard medical practice however circumstances at the time of the surgery which may have demanded a more extensive resection are unknown to me. 11Correspondence then ensued with a view to having the proceedings re-listed before Harrison J. That culminated in a letter from the Judge's Associate to the parties of 28 September 2009 which said this: I refer to your correspondence to me of 25 September 2009 concerning the defendant's request to re-list this matter before Harrison J for further directions. Having reviewed both parties' correspondence his Honour's preference is to list this matter for mention on Thursday 1 October 2009 at 10.00am. (emphasis added) On the present application the Plaintiff relied particularly on the emphasised words "for mention" in that letter. 12The matter then came before Harrison J on 1 October 2009 with Mr Ryan of counsel appearing for the Plaintiff and Mr Bradley of counsel for the Defendant. 13During the course of that hearing the following was said: RYAN: Your Honour, it is true that the plaintiff has gone to a number of doctors, but none of those doctors have denied her claim at this point to be involved (sic) except for two, that was Dr Pham and the present one, Professor Sacks. Professor Sacks has given her some encouragement. I would agree that it doesn't satisfy rule 31.36 at the moment, but she at this very moment is still talking with Dr Sacks or Professor Sacks and we are hopeful --- ... HIS HONOUR: The problem, Mr Ryan, in this case is that undoubtedly Ms Zakaria has suffered what the medical profession often euphemistically refers to as a "less than optimum outcome", but these outcomes are not necessarily or at all times the result of a breach of duty or a failure to conform to proper standards. If Professor Sacks whose report of 15 September this year had been prepared by reference to the terms of rule 31.36 it would have been a simple matter for him to say that there has been a failure to conform to a proper standard, or I don't have enough information to say so, or whatever the position is. But he just doesn't turn his mind to those things, does he? RYAN: True, your Honour, but at that stage I don't think he was fully aware of the implications of the rule. Since then, since that report, the rule has been set out for him and the implications of it, and at this moment I understand he is considering a further report in respect of 31.36. ... HIS HONOUR: ... Mr Ryan, it's said that the orders that I made on the previous occasion should have effect, the report hasn't been produced in compliance with the rule. If you have solicitors, who should file a notice of appearance by the way, then they would have drawn these matters to the attention of those who examined the plaintiff --- RYAN: Your Honour, we have written, as I say, to the doctor. We've also informed the solicitor for the defendant that we are presently at this moment awaiting a further report from him and --- HIS HONOUR: From whom? RYAN: This is Professor Sacks, your Honour, and --- HIS HONOUR: Well, I don't mean to be rude, but when you say "awaiting a report", when will that be available? ; RYAN: Well, I understand that he has been away and that today he will be looking at the submission from the solicitors and will be considering this very issue today, your Honour, and we are hopeful - not, you know, extremely confident - but hopeful that within the next day or two, certainly by the beginning of next week, that we should have something in writing from him. ... HIS HONOUR: Mr Ryan, it's suggested - well, we know it's suggested that the order I made hasn't been complied with, and that's it. RYAN: Well, your Honour, as your Honour mentioned the guillotine effect of 31.36, but I think in the circumstances, your Honour, that it would be fair to give us this further opportunity, because it has been described as doctor-shopping, it could be more aptly described as non-availability of doctors in the ENT circle, your Honour, if I can put it that way, and that's why it's so difficult. This plaintiff hasn't got the resources to go outside New South Wales, let alone Australia. HIS HONOUR: Well, I think that's a self defeating submission, with respect, isn't it, Mr Ryan? The proposition is that if local practitioners don't consider this to be a failure of proper practice in this jurisdiction, then the plaintiff doesn't have a case. RYAN: Well, they haven't actually said that, your Honour. HIS HONOUR: No. RYAN: They've refrained from saying anything, except for those two I mentioned. HIS HONOUR: All right. RYAN: And those two are encouraging. Dr Pham, your Honour saw him last time, he's getting into the area of this is very uncommon, very unusual, but he hasn't taken a further step, and at this stage neither has Dr Sacks, but I'm confident that it may happen in the next day or two. HIS HONOUR: But this isn't a matter of advocacy. This is a matter of professional medical expertise. That's the issue, isn't it? RYAN: Mm. It's not that they've said no, your Honour, it's just that they've refrained from saying anything on this critical point. HIS HONOUR: Well, silence is as deafening as --- RYAN: I don't think it's acquiescence in this case, your Honour, it's more to do with refraining from saying anything at all. HIS HONOUR: All right. Well, I have another matter in the list, listed for hearing. The defendant says that the order takes effect and you ask for more time for more medical evidence of a different sort. RYAN: Yes, your Honour. HIS HONOUR: All right. I will reserve my final determination and I will give my reasons in this tomorrow at ten o'clock. 14On 2 October 2009 his Honour published further short reasons. His Honour noted the orders that he had made on 7 August 2009, he noted that the orders were made to enable the Plaintiff a final opportunity to obtain the requisite expert support that r 31.36 contemplated, he noted the report of Professor Sacks of 15 September 2009, he noted that the Plaintiff sought a further indulgence to obtain a more detailed report from Professor Sacks or possibly from some other specialist overseas and his Honour noted that Mr Ryan had not ultimately contested the proposition that the latest report from Professor Sacks was inadequate or insufficient for the purpose. His Honour said that even if there were debate about the Plaintiffs final position he thought that Mr Ryan's concession was properly made. 15His Honour then concluded by saying: [6] The difficulty for present purposes is that none of the medical opinions upon which the plaintiff has sought to rely has been expressed in terms that actually address or advert to the things that the rule emphasises. There is so far no real flavour in any of the reports obtained from any suitably qualified expert that the rule has been confronted and understood or that any apparent attempt has been made to comply with it. This is both curious and troublesome. On the other hand it may simply be that all experts that have been asked to provide an opinion with the rule in mind have done their best and that nothing more favourable to or supportive of the plaintiff's case can be said. I am inclined to think, having regard to the fact that the plaintiff is legally represented, and the fact that she has been searching for expert support for some years without success, that no support is available and none is now likely to emerge. The plaintiff has not even sought to utilise the opinion of a current treating specialist whose views one might reasonably have thought could have identified the critical matters. Instead the plaintiff has chosen to conduct an endless and unproductive search for support from others. There is also no certificate under s 347(2) of the Legal Profession Act 2004, which tends to align with the current state of medical opinion about the plaintiffs condition and its cause. [7] In these circumstances I see no reason to prolong the matter. The defendant seeks an order that the stay be lifted so that the order that I made dismissing the proceedings can take effect according to its terms. I consider that that should occur and I so order.

16Mr Ryan of counsel for the Plaintiff said that the present Notice of Motion was based on r 36.15 UCPR, alternatively, on the inherent jurisdiction of the Court. I note, however, that the Notice of Motion claims that Harrison J's order of 2 October be set aside on the basis that it is invalid and of no effect "on the grounds of a denial of natural justice". 17Rule 36.15 relevantly provides: 36.15 General power to set aside judgment or order (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. 18Mr Ryan said first that the judgment of Harrison J of 2 October 2009 was given against good faith. He submitted alternatively that it was given irregularly. The basis for the judgment being entered against good faith or irregularly was said to be the fact that the matter had been listed on 1 October 2009 for mention and yet his Honour heard argument on the point in issue and delivered a judgment without giving the Plaintiff and her counsel the opportunity properly to address the issue whether Dr Sacks' report complied with the rule. The Plaintiff submitted that his Honour had made an error when he said (at [6]) that the opinion of a current treating specialist might have reasonably been thought to have identified the critical matters. This was because, the Plaintiff submitted, she had no current treating specialist and one was not identified to his Honour. 19The Plaintiff submitted further that there was an injustice in the circumstances where the operation had resulted in her losing her employment and prevented her from obtaining similar employment as a receptionist because of her inability to speak properly. The Plaintiff submitted further that there was injustice by reason of the fact that she had limited resources to obtain the requisite medical report and that she was faced with the difficulty of persuading an ENT surgeon to provide a report critical of the Defendant.

(1) Good faith 20In Coles v Burke (1987) 10 NSWLR 429 Kirby P (with whom Samuels and McHugh JJA agreed) said: The genus which is involved in the phrase "irregularly, illegally or against good faith" appears to me to be misconduct or dishonourable conduct of the person who procured the judgment which it is suggested undermines the authority of that judgment warranting the exceptional course for which r 12A provides. Here, there was no such lack of good faith on the part of the claimants. The signing of the judgment was made in accordance with the authority of the order earlier consented to and after a warning had been given by the letter to which I have referred. It is perhaps undesirable, in the modern practice of the legal profession (where much give and take is required) that judgment should be signed in this way without a final telephone call or other warning. However, the failure to give such a final and further warning could not, on any view, amount to a lack of good faith. Therefore, r 1 2A, likewise, has no application to these circumstances. No other rule or statutory provision was relied upon by the first opponents to support the order which Smyth DCJ made. 21This passage was approved by the Court of Appeal in Kendell v Carnegie [2006] NSWCA 302; (2006) 68 NSWLR 193 at [44] and [53]. Bryson JA (with whom Hodgson and McColl JJA agreed) added at [45] that the rule requires "sufficient cause" which recognises the need for finality by protecting judgments from being set aside for slight or uncertain causes. 22The significant matter is that for a judgment to be set aside as having been entered against good faith there must be misconduct or dishonourable conduct by the person who procured the judgment. The matter is directed, not to the Court or the Judge who entered the judgment, but to the party who was responsible for bringing it about. Ordinarily such a judgment would be a default judgment or a consent judgment contingent upon the performance of some event. To the extent that the rule is, in that sense, confined to the behaviour of the other party it sits uneasily with a judgment obtained after a hearing at which the complaining party is present and/or represented. 23The judgment of 2 October 2009 was not given or entered against good faith.

(2) Irregularity 24Ordinarily irregularity is concerned with a failure to comply with the Rules of Court: Arnold v Forsythe [2012] NSWCA 18 at [88]. That will extend to the position where, for example, default judgment has been obtained on a Statement of Claim that does not properly plead a debt or liquidated sum: Arnold at [59]; or does not plead an essential element of the cause of action: Fenato v Chief Commissioner of State Revenue [2010] NSWCA 80; (2010) 78 NDWLR 20 at [39] and [63]. In addition, a judgment entered for more than is due will be irregular: Alexander v Ajax Insurance Co Ltd [1956] VLR 436; H R Turner & Son Pty Ltd v Rhodes [1970] 1 NSWR 305. 25A denial of procedural fairness will be a fundamental irregularity that will entitle a person aggrieved to set aside an order as a matter of unconditional right: Cameron v Cole (1944) 68 CLR 571. That right is part of the court's inherent power. Further, such an irregularity falls within r 36.15: Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38 at 85. 26The essence of the Plaintiff's complaint regarding procedural fairness is that Harrison J listed the matter for mention on 1 October but then proceeded to conduct a hearing, reserved his decision and gave judgment the following day. The further and associated complaint is that Mr Ryan of Counsel lodged a further written submission with the Judge the following day but, according to Mr Ryan, those submissions did not reach the Judge at least before he delivered his judgment. The Plaintiff submitted that Harrison J was exercising a discretion but that its exercise miscarried by reason of the denial of procedural fairness. 27In my opinion the Plaintiff has not established that she was denied procedural fairness. To show why, the chronology of the proceedings must be considered. 28The operation, about which the Plaintiff complains, took place on 21 October 2005. Only one week short of the expiry of the limitation period the Statement of Claim was filed on 14 October 2008 by the Plaintiff acting without a solicitor on the record. I have no doubt, however, that the Plaintiff had legal assistance in preparing the Statement of Claim. She gave evidence that she had been assisted during the period of the proceedings at various times by three different solicitors and by Mr Ryan. Having observed the Plaintiff in the witness box I do not believe that she could have used the legal phraseology contained in the Statement of Claim without legal assistance. 29However, a significant matter about the filing of the Statement of Claim without a solicitor being on the record is that the filtering process which operates by virtue of s 347 Legal Profession Act 2004 did not occur. That increases the significance of a Plaintiff complying with the provisions of r 31.36 to avoid the possibility of a claim with few prospects of success: Salzke v Khoury [2009] NSWCA 195 at [122]. It was never explained why the solicitors who provided assistance to the Plaintiff did not become the Plaintiff's solicitors on the record. 30In his judgment given on 7 August 2009 on the Defendant's Notice of Motion to dismiss the proceedings Harrison J dismissed the proceedings but stayed the order for six weeks to give the Plaintiff the opportunity to obtain a report which complied with r 31.36. The Plaintiff had Mr Ryan appearing for her at that time. 31Strictly speaking the proceedings were dismissed on 18 September 2009 but the Defendant and Harrison J acted on the basis that that had not happened by reason of the arrangement for a re-listing on 1 October. The reason for that was, probably, that the Plaintiff served a report from Professor Sacks dated 15 September. 32Whilst it is true that the letter from Harrison J's Associate said that the matter was to be listed for mention on 1 October, his Honour heard argument about whether the report from Professor Sacks complied with r 31.36. I have set out relevant portions of the transcript from that day. The significant matter is that Mr Ryan accepted that the report did not comply with the Rule but sought more time to obtain a report that complied. He was hopeful but not "extremely confident" that another report from Professor Sacks would be forthcoming by the following week. The Defendant submitted to Harrison J that an order for dismissal should be made. 33Before he finished dealing with the matter Harrison J summarised the position of each party and said he would give his decision the following morning. No complaint was made on behalf of the Plaintiff concerning his Honour's stated intention. No application was made to lodge a further submission. Although Mr Ryan forwarded a further submission to his Honour that submission was dated 2 October. No evidence was led which threw any light on what time that submission was forwarded to, or would have reached, his Honour. It is noteworthy that the further submission was entirely inconsistent with the concession made on 1 October that Dr Sacks' report did not satisfy r 31.36. 34When the matter was listed for judgment on 2 October there was no appearance for or on behalf of the Plaintiff. There could have been an appearance and a request for leave to make or file a further submission in the form of the written submission dated 2 October, or otherwise. 35His Honour, in his judgment of 2 October, did not simply base his decision to dismiss the proceedings on Mr Ryan's concession. He said the concession was properly made on the basis of his Honour's examination of the report itself, and his Honour concluded at [6] (paragraph [15] above) that it did not address or advert to the matters rule 31.36 emphasised. I have set out the report at [10] above. Plainly it does not deal with the matters with which r 31.36 is concerned. 36The Defendant quite properly referred me to the Court of Appeal's decision in Miltonbrook which might be thought to be against the position for which the Defendant contended. Certainly, that decision holds that a denial of procedural fairness comes within "irregularity" in r 36.16. However, its facts were sufficiently different to make it distinguishable on its result to the facts in the present case. In Miltonbrook the solicitor for the relevant party simply happened to be in Court when the matter was mentioned. The judgment then sets out facts showing the difference from the present matter: [83] The respondents took no steps to inform the applicants of the process of reinstatement. The fact that such would be sought was referred to in the draft Statement of Claim that was served. However, there was no mention of the process in correspondence between the solicitors about the dispute. [84] In my opinion, Miltonbrook was not given a reasonable opportunity to be heard. The information available to the solicitor was not, in my opinion, of a character which would enable him to question the basis upon which his Honour had formed the views expressed in his first judgment. Furthermore, that judgment, and the course of conduct on 5 March 2007 was such as to suggest that the matter had been determined on the previous occasion and all that remained was the making of orders. In my opinion, the presence of the solicitor on 5 March 2007 was not such as to give Miltonbrook a reasonable opportunity to be heard. 37In all of these circumstances I do not consider there was any failure to afford procedural fairness to the Plaintiff. I do not think any significance should attach to the words "for mention" in the Associate's letter. The Plaintiff's counsel argued for his client's position, was warned that judgment would be delivered on the parties' competing submissions, and had two further opportunities (the lodgement of a further written submission in due time, and appearance the following day to request further time) if additional submissions needed to be made.

(3) Compliance with r 31.36 38Even if there was a failure to accord procedural fairness to the Plaintiff it is necessary to consider if, at the present time, the Plaintiff has complied with r 31.36. This is because it is difficult to conceive a case where an order striking out proceedings for a default will be set aside if the default has not been cured: National Parks and Wildlife Service v Pierson [2002] NSWCA 273; (2002) 55 NSWLR 315 at [19]. 39The Plaintiff submitted that the report obtained from Dr Ghabrial was a report which complied with r 31.36. The first part of the report assesses the Plaintiff in terms of Whole Person Impairment (why that has been done is not made clear). The second part of the report says this: I note that in a report dated 28/11/2005 Dr. Thompson says he was advised that the tonsils were 'deeply buried' and that the resultant procedures left 'deep tonsillar fossae'. This would indicate to me that excessive physical force was used in the removal of the tonsils and that due care and skill was not exercised by Dr. Noyce and my opinion is as follows. A. The soft palate permanent deformity and Impairment resulted from the failure of the operating surgeon to apply reasonable standards of medical practice. This amounts to a breach of professional duty by Dr. Noyce and this caused the said impairment. 40An "expert's report" is defined r 31.18 as meaning: A written statement by an expert ... that sets out the expert's opinion and the facts, and assumptions of fact, on which the opinion is based. 41Dr Ghabrial was an "expert witness" as defined in r 31.18 because he was: An expert engaged ... for the purpose of (a) providing an expert's report for use as evidence in proceedings or proposed proceedings. The report's "use" was for the purpose of r 31.36 if nothing else. 42Dr Ghabrial acknowledged the Code of Conduct as he was bound to do. Clause 5 of the Code (Schedule 7 to the Rules) set out what must be included in the expert's report. That partly repeated matters in the definition of an "expert's report", but in total dealt with the matters discussed by Heydon JA (as he then was) in Makita v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. 43Having every regard for what is said in Salzke v Khoury, especially at [123], I do not consider Dr Ghabrial's report satisfies the requirements of the Rule because the report does not satisfy the definition of "expert's report" nor does it comply with the requirements of the Code. The facts and assumptions of fact on which Dr Ghabrial based his report are not set out. He appears to base his conclusion on what Dr Thompson said he was advised but by whom he does not say. Contrary to the Code's requirements no reasons are given for Dr Ghabrial's conclusions. The conclusions are what Heydon JA in Makita described as ipse dixits at [87]. 44Accordingly, the Plaintiff's default has not been cured. Not only does the principle in Pierson operate but other matters involving ss 56 and 58 Civil Procedure Act are relevant.

(4) Earlier Motion and s 56 CPA 45On 19 October 2009 the Plaintiff filed a Notice of Motion seeking, as the present Motion seeks, that Harrison J's order be set aside on the grounds of a denial of natural justice. She also filed an affidavit in support sworn 19 October 2009. She said that either Warwick Cottee or Mr Ryan were acting for her at the time although (as noted earlier) Mr Cottee was never a solicitor on the record. In the affidavit she said: "I am presently making arrangements to obtain a medicolegal opinion from a specialist in Melbourne and I am awaiting an appointment." 46She said that she filed the Notice of Motion herself. She said that she read the document when it was handed back to her and she "probably would have seen" that the Notice of Motion was listed on 6 November 2009. On 6 November nobody appeared for the Plaintiff (including the Plaintiff herself) and the Notice of Motion was dismissed. She could not provide an explanation for why she did not appear. 47It is apparent from the affidavit that at the time of the filing of that Motion the Plaintiff had not rectified the default (the failure to file and serve a report which complied with r 31.36) because the affidavit said that she was arranging an appointment with a specialist in Melbourne to obtain a medicolegal report. The likelihood is, therefore, that the Plaintiff's Motion would have been dismissed even if she had appeared and pursued it but it was, in any event, dismissed. 48Where there has been a prior application which has been dismissed in circumstances where the default had not been cured a second application made prior to the default being cured will usually be dismissed out of hand as an abuse of process because there has been no relevant change of circumstance since the first application: Pierson at [18]; Nominal Defendant v Manning (2000) 50 NSWLR 139 at [72]. 49After the dismissal of the Plaintiff's Notice of Motion of 19 October 2009 nothing was done in the proceedings until the present Notice of Motion - a period of 2 years and 8 months - although it seems the Plaintiff obtained a report from a Dr Ghabrial on 18 October 2011, two years after the filing of the first Notice of Motion. Delay is a relevant matter even where a party seeks to set aside an irregular judgment although it may only result in terms being applied to its setting aside: R T Company Pty Ltd v Minister of State for the Interior (1957) 98 CLR 168 at 170. 50The Plaintiff's explanation for this delay was contained in her affidavit of 16 July 2012: [6] I did not understand until after 2 October 2009 that my case had been dismissed and then I was informed by my lawyers that my barrister had sent a letter to the judge asking for further consideration. I enclose a copy of the letter to the Judge's associate dated 2 October 2009 with the attached letter to the judge, marked "F1 & F2" J [7] After the dismissal of my case, I became very depressed and I just could not bring myself to follow up anything further. I just could not concentrate on anything at all even looking after Zach properly. Eventually I got so down and anxious and panicky and unable to focus that at about the middle of 2010, I arranged with my husband, who lived with his mother and from whom I was separated, to take care of Zach because I was unable to do so. [8] On 13 March 2011, my grandfather died and I missed him terribly. This made me further depressed and I was not able to do anything at all in pursuing my case because I could not find the energy or the will to do so. Later on in 2011 my mother kept reminding me that I had to do something and after her constant urging I went to the Healthcare Complaints Commission but they did not support my claim. Annexed hereto and marked "G" is a true copy of the letter from the Healthcare Complaints Commission dated 18 May 2011. 51However, as noted above the Plaintiff was able to file a Notice of Motion, swear an affidavit and apparently arrange an appointment with some un-named specialist in Melbourne in order to obtain a report which complied with r.31.36. 52 Cross-examination of the Plaintiff elicited that she was able at some time in the period, probably early 2011, to make a complaint to the Health Care Complaints Commission about the Defendant. She was also able to consult a further firm of solicitors, Stephen Smart and Associates, and to see Dr Ghabrial who provided her with his report in November 2011. The Plaintiff also agreed that throughout the period she was the primary care giver for her father in respect of which she received a support pension. 53I did not find the Plaintiff an entirely satisfactory witness. When she was asked about the statement in her affidavit of 19 October 2009 about arranging to see a doctor in Melbourne she gave this evidence: Q. And so it's fair that his Honour may accept that arrangements had been made for you to obtain a medicolegal opinion from a specialist in Melbourne and that you were awaiting an appointment with that specialist? A. Yes. Q. But you don't recall making that appointment? A. There's been so many doctors, I don't know which one is which. It was in 2009. I have been to so many doctors, if I don't remember, it's not my fault. I have probably been to every single doctor there is in Sydney, Canberra and Melbourne and I don't remember. It was in 2009 so maybe there was an appointment or I was waiting for an appointment and I don't remember. 54Yet a little later there was this evidence: Q. And you can't recall the name of the doctor in Melbourne? A. No. Q. It would have been another doctor that you have seen? A. I don't recall that, no. Q. But you have said you went to Melbourne and you saw a doctor; you don't recall his name? A. I didn't say I went to Melbourne. Q. I thought the answer to my question was that you have seen doctors in Sydney, Canberra and Melbourne? A. I did not say Sydney, Canberra and Melbourne. You have asked me about a doctor in Melbourne and it says here I was waiting for an appointment. I never said a I saw a doctor in Melbourne, no. ,.. 55No report from a doctor, except Dr Ghabrial, has ever been produced. 56Despite what the Plaintiff said in her affidavit of 16 July 2012 about being too depressed to do anything further in the case or concentrate on anything at all, she did not disclose in that affidavit anything about the October 2009 Notice of Motion, the appointment with the Melbourne doctor nor the care for her father. Further, she said nothing of these things (except the care of her father) or about the complaint to the Health Care Complaints Commission to Dr Robert Hampshire, a psychiatrist, from whom she obtained two reports. In the second of these Dr Hampshire said: I have no doubt that with the combination of psychological problems described above which came on sometime following the surgery from Dr Thompson that this could easily have left her so psychologically unwell as to be unable to organise her life in an appropriate manner which would include preventing her from pursuing further medical evidence until she saw Dr Gabriel (sic) on the 29th September 2011. 57It is difficult to accept Dr Hampshire's conclusion when he was not provided with all relevant information. 58There was no explanation of the delay from the receipt of Dr Ghabrial's report until the filing of the present Motion in June 2012 - a period of eight months. 59I do not accept the Plaintiff's evidence that she was unable to do anything about obtaining a complying report or filing a Motion to set aside Harrison J's order. Mr Ryan pointed to the fact that the Plaintiff was impecunious and was acting for herself. In fact she had Mr Cottee acting for her at the relevant time in 2009 and subsequently consulted Mr Smart almost a year before the present motion was filed. In any event, the Plaintiff herself did not say that she was impecunious nor did she say that that was the reason for the delay. 60In my opinion the chronology of events and the delays, which are ultimately unexplained, are inconsistent with the requirements of ss 56 and 58 Civil Procedure Act 2005. The Plaintiff has not been without legal assistance. She has had a number of opportunities to get these proceedings into order by compliance with r 31.36. Her failure to do so bears out what Harrison J said in his judgment of 2 October 2009 at [6]: I am inclined to think, having regard to the fact that the plaintiff is legally represented, and the fact that she has been searching for expert support for some years without success, that no support is available and none is now likely to emerge. 61As the report of Dr Ghabrial does not comply with r 31.36 there has been no relevant change of circumstance since the filing of the earlier notice of motion of 19 October 2009. That would mean that the present Motion should be dismissed even if there had been some procedural unfairness contrary to what I have found. 62Further, even if Harrison J erred in referring to the Plaintiff having a then current treating specialist (and there was no evidence led about tis matter before me) the continuing failure of the Plaintiff to comply with r 31.36 would mean that such error would not prevent the Notice of Motion being dismissed.

63I make the following orders: (1)The Plaintiff's Notice of Motion filed 28 June 2012 is dismissed. (2)The Plaintiff is to pay the Defendant's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 October 2012

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (8 paragraphs)

Parties

Cases Cited (14)

Cited By (17)