Lamond v Artinian [1999] NSWSC 94 (19 February 1999)

Last Updated: 24 February 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Lamond v Artinian [1999] NSWSC 94

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 14401/92

HEARING DATE{S): 8/2/99

9/2/99

JUDGDMENT DATE: 19/02/1999

PARTIES:

PATRICIA LAMOND v GEORGE ARTINIAN & ORS.

JUDGMENT OF: Sully J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

M. E. Jenkins - Applicant

A.C. Collins - 1st and 2nd Responent

B. Mainhoff - 3rd Respondent

T.M. Hobson - 4th Respondent

SOLICITORS:

Paul A. Curtis & Co. - Applicant

Blake Dawson Waldron - lst and 2nd Respondent

Minter Ellison - 3rd Respondent

Ebsworth & Ebsworth - 4th Respondent

CATCHWORDS:

ACTS CITED:

DECISION:

1.That proceedings numbered 14401 of 1992 in the Common Law Division of this Court be restored to the active list of that Division.

2. That Phillip Lamond, the husband of the late Patricia Lamond, be substituted as plaintiff to such restored proceedings.

3. That, not later than 7 days from the date of publication of this judgment, a copy of the order giving effect to Order 2 above be served upon each of the four defendants to the principal proceedings. In default of such service on any defendant, then the principal proceedings will stand, by virtue of SCR Pt. 8 R. 12(1)(b), dismisssed as against that defendant. I direct that service by facsimile transmission will be sufficient compliance with this order.

4. That the proceedings be transferred not later than 21 days after the date of publication of the present judgment into the District Court of New South Wales.

5. That the plaintiff pay the costs, as agreed or assessed, of all four defendants of the present Notice of Motion; and the costs of the first, second and third defendants, of the callover on 4 June 1998 before Wood CJ at CL.

JUDGMENT:

SUPREME COURT OF

NEW SOUTH WALES

COMMON LAW DIVISION

SULLY J

19 February 1999

14401/92 - Patricia LAMOND v George ARTINIAN & ors

JUDGMENT

1 HIS HONOUR: By a Notice of Motion filed on 15 December 1998 Mr. Phillip Lamond seeks the following relief:

"1. That the Order made on 4 June, 1998 dismissing the Statement of Claim and striking out the proceedings be set aside.

2. That Phillip Lamond as legal personal representative of the Estate of the Late Patricia Lamond be substituted as Plaintiff.

3. That these proceedings be transferred to the District Court of NSW.

4. That the costs of this application be costs in the cause."

2 The relevant factual background is best explained in the form of the following chronology:

15.8.90 - Mrs. Lamond sees Dr. Artinian. She complains of pain of such a kind and so located as to cause Dr. Artinian to take a Pap smear.

24.8.90 - Mrs. Lamond sees Dr. Artinian in connection with the results of the Pap smear of 15.8.90. Dr. Artinian tells her that the Pap smear is "atypical". He does not diagnose cancer, but suggests a follow-up test in not less than 5 weeks' time.

8.10.90 - A repeat Pap smear is taken from Mrs. Lamond.

15.10.90 - Dr. Artinian tells Mrs. Lamond that the results of the second Pap smear are "negative".

November 1991 - Mrs. Lamond has further tests done at another clinic. They return positive results. She is told by Professor Houghton, to whom she has been referred, that he cannot believe that the cancerous cells found by the latest test had not been present 15 or 16 months previously, that is to say in August and in October of 1990.

28.8.92 - Mrs. Lamond, by her then solicitors, files a statement of claim in which she proceeds against four defendants. Dr. Artinian is the first defendant. Professor Peter Russell, who was concerned with the analysis of the Pap smears, is the second defendant. An incorporated clinic connected, as I understand the fact, with Dr. Artinian, is the third defendant. A corporate clinical laboratory connected with Professor Russell is the fourth defendant. The cause of action, put simply, is that the first and second defendants failed negligently to detect, and to advise the plaintiff in connection with, a condition of cervical cancer from which she was suffering when they treated her professionally in August and in October 1990; and that the third and fourth defendants are, variously, vicariously liable for such negligence.

4.9.92 - The statement of claim is served upon the first and second defendants.

[It is not clear when, precisely, the statement of claim was served upon the third and fourth defendants; but I think it is reasonable to infer that it was at or about the same time as service upon the first and second defendants. Nothing turns upon this particular detail for the purposes of the present notice of motion.]

8.9.92 - The solicitors acting for the first and second defendants request extensive further and better particulars.

15.9.92 - Mrs. Lamond dies

29.9.92 - Mr. Rodney Kent, the then solicitor for Mrs. Lamond, telephones the solicitor for the first and second defendants, communicating the fact of Mrs. Lamond's death, and indicating that the further and better particulars previously requested by the first and second defendants will be provided in due course.

About October 1992 - Mr. Lamond contacts Mr. Kent consequent upon the death of Mrs. Lamond. The affidavit evidence of Mr. Lamond, which was not challenged and which I accept, is to the following effect:

"7. Approximately one month or so after Patricia died I telephoned Rodney Kent, the Solicitor retained by Patricia. I recall that he said to me words to the following effect:

Matters like this have to be heard in the Supreme Court and there is a five (5) year waiting list. There would be a series of actions, on behalf of the Estate of the Late Patricia Lamond and an action by yourself, Kara and Nicole against the Pathology Laboratory and the G.P.

I understood that there would be eight different actions pursued in court.

8. Thereafter I spoke to Rodney Kent who acted for me in relation to a number of matters, many times in the next five years and I was always given to believe that the actions had been started. I understood that the actions were chugging along and were still in the list of cases to be heard.

10. In about late 1994 Rodney Kent phoned me on a Sunday and said to me words to the following effect:

"The actions will be over by Christmas."

I then heard nothing further from Rodney Kent and in about March, 1995 I telephoned him and was told words to the following effect:

"No, it's not going to happen, it's still on the list."

This did not cause warning bells to ring in my mind because I understood that there was a five (5) year waiting list."

11. Approximately eight (8) months ago I was informed by a friend Jan that matters like this can be run in the District Court. Over the next few months I placed about four (4) calls to Rodney Kent but he did not return my call."

12. I then received a telephone call from an associate of Rodney Kent who said to me words to the following effect:

"Rodney, a Barrister and another Solicitor would like to meet with you to discuss the claims."

17. At no time was I aware that there was a failure to prosecute the proceedings which had been commenced by Patricia in her own right. I understood that my Solicitor, Rodney Kent, had matters in hand and would undertake all steps which needed to be taken. I was not aware that the delay which I experienced in those claims coming to court was untoward. I believe it was the usual delay inherent in such matters."

3.2.93 - Two letters are written by the solicitor for the first and second defendants to Mr. Kent as Mrs. Lamond's solicitor. One of these letters notes that further and better particulars have not been supplied and presses for their supply. There is no further correspondence between Mr. Kent, on behalf of Mrs. Lamond, and the solicitor for the first and second defendants, between this date in 1993 and 1998.

24.4.98 - A notice issues from the Principal Registrar of this Court.

[There is particular evidence of such a notice addressed to the solicitors for the first and second defendants. I think it is reasonable to infer, and I do infer accordingly, that an identical notice was sent to the solicitor then acting for Mrs. Lamond; and to the solicitors on record for the third and fourth defendants.]

The notice, formal parts omitted, is in the following terms:

"The above proceedings will be listed for call-over on Thursday 4 June 1998 before The Honourable Justice Wood, CJ at CL.

At the call-over, consideration will be given to:-

(a) Whether the proceedings would more appropriately be heard in the District Court;

(b) Removal of the proceedings from the list of active matters;

(c) Dismissal of the proceedings; or

(d) The making of a direction that DCM apply to these proceedings."

4.6.98 - Call-over before Wood CJ at CL. The following orders are made:

"1. That these proceedings be struck out.

2. That the parties have leave to restore on 14 days' notice."

All defendants are represented. There is no appearance by or for the plaintiff in the principal proceedings.

18.6.98 - The orders of 4 June 1998 are formally entered.

15.6.98 - Mr. Lamond sees in conference counsel instructed by Mr. Kent's firm. Mr. Kent himself is not in attendance. A different particular solicitor instructs on the conference. Mr. Lamond confirms instructions that he wishes to proceed with his late wife's claim and with associated claims on his own behalf and on behalf of his two daughters.

16.6.98 - Mr. Lamond instructs a new, (and his present), solicitor.

21.8.98 - The plaintiff's new solicitor receives from the former solicitor the relevant file in respect of the principal proceedings.

11.9.98 - A conference is held with Mr. Lamond and his further instructions are taken.

9.10.98 - The solicitor newly instructed by Mr. Lamond seeks to file a formal Notice of Appearance. This leads to:

12.10.98 - It is first brought to the attention of the new solicitor that orders, in the terms noted previously herein, had been made on 4 June 1998.

13.10.98 - Mr. Lamond learns of the orders of 4 June 1998.

13.10.98 - The new solicitor puts in train steps to obtain affidavit evidence to ground an application to restore the principal proceedings to the list in accordance with the leave in that behalf granted by the orders of Wood CJ at CL.

4.11.98 - Mr. Lamond swears his affidavit in support of the present Notice of Motion.

14.12.98 - The present Notice of Motion is signed by Mr. Lamond's solicitor, and:

15.12.98 - The present Notice of Motion and supporting affidavit of Mrs. Lamond are filed.

3 Given the foregoing sequence of events, I think that the following conclusions are fairly available:

4 1. It is completely clear that the progress of the principal proceedings which were commenced by Mrs. Lamond has been marked by what the relevant authorities describe as inordinate delay.

2. That inordinate delay is wholly unexplained except to the extent that it was clearly attributable to a manifest failure on the part of the solicitor originally retained by Mr. and Mrs. Lamond, to pursue with proper professional diligence and efficiency the prosecution of the principal proceedings.

3. If the evidence of the Mr. Lamond in support of the present application be accepted, - and, as earlier indicated, I do accept it, - then it has not been shown that either Mr. Lamond or his late wife was in any way responsible for the inordinate delay to which I have referred.

4. It must be a matter of obvious concern on the present occasion that Mr. Lamond did not appear at, and was not represented at, the call-up before Wood CJ at CL. There is, however, no evidence to suggest that Mr. Lamond himself had any idea that such a call-up had issued from the Court; or that it entailed, at the very least, a real risk that the principal proceedings might be struck out of the active list.

5 The evidence at present available does not enable this Court to make a finding as to what exactly it was that caused Mr. Lamond's former solicitor to do either little or nothing in the proper and diligent prosecution of his client's case. The Court has not heard from Mr. Kent, the previous solicitor. The Court has not seen any material derived from Mr. Kent's files or other relevant records. It might very well prove to be the case that a proper examination of Mr. Kent's conduct with respect to the prosecution of the principal proceedings would indicate the appropriateness of some proper professional disciplinary proceedings being taken against him. There might be other forms of redress seen as appropriate upon such enquiry. All this Court can say is that it is not in a position to make any concluded findings about those matters. The relevant finding which this Court can make, on the evidence before it, is that it has not been shown that Mr. Lamond or his late wife were at fault in connection with the failure diligently to prosecute the principal proceedings.

6 In connection with point 4, it is convenient to notice a particular submission put for the defendants. The particular submission is put succinctly in the following extract from the written submissions put in for the first and second defendants:

"Based on the matters referred to in the affidavit of Phillip Lamond sworn 4 December 1998 it is strongly submitted that an alternative course of action against another person is available to the plaintiff; see R v Birks (1990) 19 NSWLR 677, and that this would be a more just and fair method of disposing of the plaintiff's claim."

7 That submission, put another way, is that Mr. Lamond should be relegated to such rights as he might have in civil proceedings for negligence brought by him against Mr. Kent, the former solicitor for Mr. Lamond and his late wife.

8 The reference made by this submission to the decision of the Court of Appeal in Birks is, in my respectful opinion, misconceived. Birks had to do, not with a civil action, but with a criminal trial. It turned upon the question whether there might not be, in a particular case, incompetence of the accused's representative at trial, so flagrant as to constitute, without more, a miscarriage of justice calling for appellate intervention by the Court of Criminal Appeal. That question was answered in the affirmative; but with the obvious qualification that such cases cannot be defined with academic precision, each alleged case of such flagrant incompetence having to be looked at on its own merits, and corrected in a proper case.

9 There is, however, directly on point a decision of the Court of Appeal of this Court: Morrision and anor. v Judd, unreported, 10 October 1995. Kirby P, (Meagher and Powell JJA concurring), having surveyed the relevant authorities, both in Australia and in the United Kingdom, expresses as follows the governing principle:

"The availability of an action against a negligent legal representative is relevant because common sense says that it is so. It means that the litigant, who may be wholly or mainly innocent, is not put out of court without some chance of redress, however difficult that chance may be to enforce. To that extent an injustice, which might otherwise occur to the litigant, may be capable of being avoided. However, precisely because of the kind of difficulties which Smith J listed in Scardamaglia, it is a consideration which `cannot carry much weight'. See per Kirby P at p.11.

10 I propose to adopt that approach in connection with the present application.

11 What has been said thus far entails that the focus of the present application now shifts to two distinct, but related, questions. The first question is whether, if the principal proceedings are restored to the active list and permitted to proceed to trial, a trial can be held that will be just to all the interested parties. The second question is whether, if the principal proceedings are so restored and permitted to proceed to trial, there will be occasioned to the defendants, or any one or more of them, prejudice of so manifest, and manifestly unfair, a kind as would entail, in a real and practical sense, injustice.

12 The present application is, of course, an application made by Mr. Lamond; and it is, therefore, for him to demonstrate that in the end result it would be just to give him the substance of the relief which he seeks in his Notice of Motion. That does not mean, however, that Mr. Lamond bears in a simple and absolute sense the evidentiary burden of proof as to any and every issue that has to be decided in the course of coming to a reasoned conclusion upon that ultimate question.

13 This is, I think, a matter of some practical significance in the consideration of the present application. The evidence put forward, both by Mr. Lamond and by the defendants, on the related issues of unfair prejudice and prospects of a fair trial, is fairly thin. This makes it important, in my opinion, to be clear that there are some issues arising in connection with the present application as to which it is fair to hold the defendants, rather than Mr. Lamond, to the evidentiary burden of proof. It is, perhaps, permissible to approach the question of evidentiary burden of proof by an alternative path and as discussed by Dixon CJ in Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at 371-372. In the present particular case, I do not think that, in the end, a great deal turns on how, as between those two suggested alternative approaches, one deals with the practical question of identifying the party or parties upon whom the burden rests of demonstrating unfair prejudice or inadequate prospects of a fair trial. What does need to be established clearly, in my opinion, is that in a case such as the present one, the defendants cannot simply take the view that it is, in a peremptory sense, for the plaintiff to establish affirmatively, and on evidence led by him, that a fair trial can be had; and that there is no unacceptable prejudice entailed to the defendants, or any of them, by the restoration to the active list of the principal proceedings.

14 Against that background, it is appropriate to turn, next, to three decisions of the English Court of Appeal.

15 The first decision is that of Hornagold v Fairclough Building and anor: (1993) TLR 316. This was a case in which a District Judge had struck out an action for want of prosecution. A Divisional Judge had dismissed an appeal from that primary decision. A Court of Appeal comprising Glidewell and Roch LLJJ allowed an appeal and reinstated the particular action. The report in the Times Law Reports concentrates on the judgment of Roch LJ. The following passages are relevant:

"His Lordship said that the conclusion that he had reached, having regard to the authorities, was that to succeed in such an application a defendant had to produce some evidence either that there had been a significant addition to the substantial risk that there could not be a fair trial caused by the post-commencement of proceedings period or by periods of inordinate and inexcusable delay or that there had been a significant addition to the prejudice to a defendant.

By saying that he did not say that inference had no part to play in the process of resolving the issue of "more than minimal additional prejudice", or that the court could not draw inferences from evidence contained in affidavits.

But there had to be more than the bald assertion that the delay had prejudiced the defendants or that it had created a substantial risk that a fair trial would not be possible or that it had added to existing prejudice or to the existing risk that a fair trial would not be possible.

There had to be some indication of the prejudice, for example that no statement was taken at the time of the material events so that a particular witness who would have been called on a particular issue had no means of refreshing his memory, or that a particular witness who was to be called on a particular issue was of an advanced age and no longer wished to give evidence or had become infirm and unavailable in the period of the further inordinate and inexcusable delay.

Turning to the present case, what was contained in the affidavits was insufficient.

As the judge had said, the defendants did not identify the particular witnesses nor the particular respects in which their evidence had been impaired.

Where his Lordship differed from the judge was that it was incumbent on defendants always to identify a particular witness or a particular respect in which their evidence had been impaired or a particular reason why they said that there was a substantial risk that there could no longer be a fair trial of the issues.

Were the mere assertion of prejudice to be sufficient, then that would in effect transfer the burden of proof on that issue to the plaintiff, a submission that was expressly rejected by the House of Lords in Department of Transport v Chris Smaller Ltd ( [1989] AC 1197).

16 The second decision is that of the Court of Appeal Rowe v Glenister and ors. (1995) TLR 463. The note of the decision is very brief and is in the following terms:

"LORD JUSTICE WAITE said that it was not enough for the defendant to show merely that memories must have grown fainter during the period of post-writ delay.

He had to establish that in some specific respect particular witnesses had become disabled, by reason of the lapse of time during the period of culpable delay, from giving evidence as cogent and complete as they would have been in a position to give had the trial been held without the delay."

17 The third decision is that of the Court of Appeal in Slade v Adco Ltd: (1995) TLR 650. It is relevant to quote the following observations of Auld LJ. His Lordship was in dissent as to the outcome of the particular appeal; but the passages to be quoted do not propound principles to the contrary of anything said in the two majority judgments.

"The judge's reasoning raised again, and in an acute form, the question as to how the courts should determine the existence of a likelihood of serious prejudice to a defendant where there was no evidence of prejudice other than that of the delay itself. The authorities suggested two different answers.

The first was that the court might infer simply from the length of a delay that it was likely to have dimmed or distorted the memories of witnesses.

The second was that there must be some evidence, other than that of the delay itself, from which a court might draw that inference. The debate also involved a difference of judicial opinion as to whether memory faded earlier or later.

His Lordship agreed with the analysis of the Court of Appeal in Rowe v Glenister & Sons Ltd (The Times August 7 1995: [1995] TLR 463) which was essentially the same as that of Lord Justice Roch in Hornagold v Fairclough Building Ltd ([1993] PIQR 400) and was consistent with the broader statement of Lord Justice Glidewell in that case of the same principle.

It was that there must normally be some evidence from which the likelihood of serious prejudice to the defendant could be inferred. It was important to cling to that principle while the rule in Birkett v James ([1978] AC 297) stood, for if it was lost there was no basis, other than one of "feel", for distinguishing between a double presumption of impairment of memory and of consequent serious prejudice merely because of long culpable delay, from a reasoned inference in the particular circumstances of a case that such serious prejudice was likely to result from culpable delay.

In his Lordship's judgment, the judge wrongly inferred from the length of delay without more than the plaintiff's and Mr. Garlick's memories were likely to have been impaired by the plaintiff's culpable delay and that it was likely seriously to prejudice the defendant's defence. His Lordship could see no evidential or other basis for such an inference.

The mere identification of the witnesses and of the importance of the evidence that they were to give did not, in his Lordship's view, satisfy the test.

Something more was required, some evidence or circumstances from which it could be inferred that the delay had caused some specific problem for one or both of the witnesses, as distinct from a general impairment of memory from the passage of time, and that it was likely to seriously prejudice the defendant."

18 It is also relevant for present purposes to notice the following observations of Neill LJ:

"LORD JUSTICE NEILL, agreeing with Lord Justice Glidewell, said that the onus of proving prejudice or the impossibility of a fair trial rested on the person who asserted it.

It was clear that in order to establish prejudice it was not enough merely to assert that in the nature of things memories would have dimmed with the passage of time.

There was less certainty, however, as to the precise nature and the degree of particularity of the evidence which the court would require before the onus was discharged.

In reaching a conclusion on that difficult point it was necessary to take into account some other factors.

1. The quality of oral evidence was likely to fall away much more rapidly in the early months and years rather than at a later stage. On the other hand there was great difficulty in attributing a dimming of memory to any particular period of time.

2. Account must also be taken of the fact that delay might create difficulties for a defendant when he sought to test by way of cross-examination the reliability of the plaintiff and his witnesses.

His Lordship had come to the conclusion that it was unwise to try to lay down any strict guidelines for the exercise of the judge's discretion in the individual case. The onus was on the person asserting prejudice or a substantial risk to a fair trial to establish it.

He would have to show that the prejudice or risk had been caused by the inordinate and inexcusable delay since the issue of the writ. A mere assertion was not enough.

But, in his Lordship's view, the individual judge should be left to assess the prejudice and the risk and the adequacy of the evidence in the light of the individual circumstances of the case.

That approach was in accordance with the guidance given by the House of Lords in Roebuck v Mungovin ([1994] 2 AC 224)."

19 At the hearing of the present application, no reference was made to any of the foregoing three decisions; but, equally, no reference was made to any authority to the contrary of what is there propounded. It suffices to say for present purposes that, with one particular exception to which I shall come presently, I am not satisfied by the whole of the evidence adduced at the hearing of the present application, that there has been demonstrated in the requisite particular way, unfair prejudice and unacceptable prospects of a fair trial.

20 The one exception of which I have spoken is derived from paragraph 11 of an affidavit sworn by Miss Tricia Hobson, the solicitor having the practical carriage of the present application on behalf of the fourth defendant. That paragraph is in the following terms:

"11. If this matter were to proceed to trial, it is anticipated that all employees of the fourth defendant who were involved in the screening of each of the two pap smears, may need to be called as witnesses. I am instructed that there were four or possibly five such employees. Of these, three cannot currently be located. They are no longer employed by the fourth defendant. Attempts are currently being undertaken to locate these potential witnesses by another employee of the fourth defendant but at the time of swearing this affidavit, they had not been located."

21 I recognise that this paragraph at least attempts to come to grips with the practical requirements of which I have earlier been speaking. I do not think, however, that it is sufficient to carry the day for the fourth defendant, let alone for all four defendants. It is to be kept in mind that, so far as concerns the fourth defendant, its liability is said to arise vicariously by reason of the actionable negligence of the second defendant. It is, as I understand the case to be made against the fourth defendant, essentially by reference to what the second defendant did or failed to do, that it is to be decided whether or not the fourth defendant is answerable in damages in the present proceedings. Quite apart from that consideration, I would think it necessary for the fourth defendant to have given the Court, in connection with the present application, at least some idea of what had been done to trace the relevant records of the fourth defendant, and with what practical results and practical consequences.

22 I should note, also, a submission put for the defendants and to the effect that it is relevant to the exercise of the Court's discretion in connection with the present notice of motion, that the defendants have been kept, and are being kept, at risk. Reliance is placed in that connection upon a decision of Waddell J: Southern Cross Exploration NL and ors. v Fire and All Risks Insurance Co. Ltd and ors. (1986) 4 NSWLR. Put shortly, the relevant principle there established is that: ".........the fact that a defendant is being kept at risk is relevant to the exercise of the Court's discretion to dismiss proceedings for want of prosecution as a matter distinct from prejudice in the conduct of the action". The point is further examined in the decision of the House of Lords: Department of Transport and Chris Smaller (Transport) Ltd (1989) AC 1197. Five Lords of Appeal Ordinary concurred in the following statements of principle appearing in the speech of Lord Griffiths at 1209 F-1210A:

"I would, however, express a note of caution against allowing the mere fact of the anxiety that accompanies any litigation being regarded as of itself a sufficient prejudice to justify striking out an action. [Counsel] did not seek to argue that the anxiety occasioned by the extra 13 months in this case should be regarded as a sufficient ground of prejudice to justify making a striking out order. There are, however, passages in some of the judgments that suggest that the mere sword of Damocles, hanging for an unnecessary period, might be a sufficient reason of itself to strike out. On this aspect I repeat the note of caution I expressed in the Court of Appeal in Eagil Trust Co Ltd v Pigott-Brown (1985) 3 All ER 119, 124, where I said

"Any action is bound to cause anxiety, but it would as a general rule be an exceptional case where that sort of anxiety alone would found a sufficient ground for striking out in the absence of evidence of any particular prejudice. Biss's case is an example of such an exceptional case, the action hanging over for 11-1/2 years, with professional reputations at stake."

23 I accept, of course, the principle established by the foregoing decisions. I recognise, of course, the prima facie analogy between the particular facts of the present case and the particular facts, as noted by Lord Griffiths, of Biss v Lamberth Southwark and Lewisham Area Health Authority (Teaching) (1978) 1WLR 382. I do not perceive, however, any evidence on the present application, which is so cogent with regard to this element of personal and professional prejudice as would, so to speak, cancel out the other considerations of which I have spoken.

24 For the whole of the foregoing reasons, I am satisfied that it would be just to give the Mr. Lamond the substance of the relief that he seeks in the first three paragraphs of his Notice of Motion. In that connection I make the following particular orders:

1. That proceedings numbered 14401 of 1992 in the Common Law Division of this Court be restored to the active list of that Division.

2. That Phillip Lamond, the husband of the late Patricia Lamond, be substituted as plaintiff in such restored proceedings.

3. That, not later than 7 days from the date of publication of this judgment, a copy of the order giving effect to Order 2 above be served upon each of the four defendants to the principal proceedings. In default of such service on any defendant, then the principal proceedings will stand, by virtue of SCR Pt. 8 R. 12(1)(b), dismissed as against that defendant. I direct that service by facsimile transmission will be sufficient compliance with this order.

4. That the proceedings be transferred not later than 21 days after the date of publication of the present judgment into the District Court of New South Wales.

25 The Notice of Motion seeks an order that the costs of the application, if the application be successful, be costs in the cause. All four defendants submitted that, even were the application successful, the plaintiff should be ordered to pay their costs of the present application. The first, second and third defendants seek also, in such event, their costs of the call-over before Wood CJ at CL.

26 As at present advised, I would think that there is a strong prima facie case for the making of an order that Mr. Rodney Kent personally pay the costs of all parties to the present application, and the costs, also, of the first, second and third defendants in connection with the call-over before Wood CJ at CL. I think that SCR Pt. 52A R4 (5)(e) confers the necessary power in that behalf. I think, however, that such an order could not properly be made without first giving Mr. Kent a fair opportunity to be heard upon the question. That course, were it to be followed, would entail even further delay and expense in the present proceedings.

27 I will, therefore, order formally that the substituted plaintiff, that is to say Mr. Lamond, pay the costs of all four defendants of the present Notice of Motion. In that connection, and for the assistance of any assessment of those costs, I note that the solicitor appearing for the first and second defendants made submissions upon which the third and fourth defendants were content to rely without addition. I note, also in that connection, that the solicitor appearing for the third defendant did no more at the hearing of the Notice of Motion than, in effect, to hold a watching brief. I note, also and finally in connection with any assessment of costs, that the solicitor appearing for the fourth defendant read her own affidavit and otherwise held, effectively, a watching brief.

28 With regard to the costs of the call-over before Wood CJ at CL, I think it just that the substituted plaintiff pay the costs of the first, second and third defendants of that appearance. The fourth defendant, as earlier noted, does not seek costs in respect of that particular hearing.

29 The formal order as to costs therefore will be:

5. That the plaintiff pay the costs, as agreed or assessed, of all four defendants of the present Notice of Motion; and the costs of the first, second and third defendants, of the call-over on 4 June 1998 before Wood CJ at CL.

LAST UPDATED: 23/02/1999