Osgood v Wham [2005] WADC 216 (30 November 2005)

Last Updated: 28 November 2006

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH

CITATION : OSGOOD -v- WHAM [2005] WADC 216

CORAM : GROVES DCJ

HEARD : 21 SEPTEMBER 2005

DELIVERED : 30 NOVEMBER 2005

FILE NO/S : CIV 2174 of 2000

BETWEEN : JULIE ANNE OSGOOD

Plaintiff

AND

MALCOLM KEITH WHAM

Defendant

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : REGISTRAR KINGSLEY

Citation : [2005] WADC 134

Catchwords:
Practice and procedure - Application to set aside default judgment - Failure to comply with springing order - Factors to be considered in granting extension of time

Legislation:

District Court Rules O 5 r 5
Rules of the Supreme Court of Western Australia O 1 r 4A and r 4B, O 3 r 5(2)

Result:
Appeal dismissed

Representation:

Counsel:

Plaintiff : Mr J R Potter

Defendant : Mr E A Panetta

Solicitors:

Plaintiff : Friedman Lurie Singh & D'Angelo

Defendant : Clayton Utz

Case(s) referred to in judgment(s):

Baker v Bowketts Cakes Ltd [1966] 1 WLR 861

Chesson v Green [2002] WASCA 67

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

Gull Petroleum (WA) Pty Ltd v Energy Process Systems Pty Ltd, unreported; SCt of WA; (Master Adams); Library No 920547; 2 November 1992

Hawter v Stevens & Ors, unreported; SCt of WA; (Master Sanderson); Library No 970645; 25 November 1997

Samuels v Linzi Dresses [1980] 1 All ER 803

Case(s) also cited:

Nil

1 GROVES DCJ: This appeal arises from the refusal of a Registrar to set aside a default judgment and to extend the time for compliance with a springing order made by a Registrar at pre-trial conference on 25 August 2004.
2 The history of these proceedings is outlined by way of the following chronology:

17.02.99 & 12.03.99

The plaintiff consulted the defendant, a specialist ophthalmologist, in relation to problems with her vision.
18.08.00 Writ of Summons filed by the plaintiff alleging the defendant's failure to diagnose and treat the plaintiff's eye condition of, inter alia, diabetic cortical cataracts.

15.08.01 Writ of Summons served on the defendant.

22.08.01 Memorandum of Appearance filed by the defendant.

04.12.01 Statement of Claim filed.

21.12.01 Defence filed.

30.01.02 Defendant serves a request for further and better particulars of the statement of claim.
26.07.02 Directions hearing at the District Court following default by the plaintiff in the entry for trial milestone. No attendance by plaintiff's solicitors. Ordered that plaintiff within 14 days file and serve a response to the defendant's request for further and better particulars of claim and that the entry for trial milestone be extended to 31 August 2002.
08.08.02 Plaintiff files answers to the defendant's request for further and better particulars of statement of claim.

24.09.02 Plaintiff files entry for trial and papers for the judge.

11.11.02 Pre-trial conference 1 adjourned until 27 May 2003. Defendant contends adjournment to enable plaintiff to serve its expert evidence (affidavit of Dominic John Bourke sworn 8 June 2005 par 3).
26.05.03 On application of plaintiff's solicitors, pre-trial conference scheduled for 27 May 2003 (Pre-trial conference 2) adjourned to 25 June 2003. Plaintiff not yet able to provide expert evidence (Bourke par 4).
20.06.03 Defendant's solicitors wrote to the plaintiff's solicitors indicating that the pre-trial conference scheduled for 25 June 2003 should be adjourned because the plaintiff's expert evidence had still not yet been provided (Bourke par 5). The pre-trial conference on 25 June 2003 (Pre-trial conference 3) adjourned to 25 August 2003.
20.08.03 Plaintiff's solicitors requested an adjournment of the pre-trial conference scheduled for 25 August 2003 (Pre-trial conference 4) because they had not obtained their expert evidence (Bourke par 6). Conference adjourned to 27 October 2003.
24.10.03 Plaintiff's solicitors sought an adjournment of the pre-trial conference scheduled for 27 October 2003 (Pre-trial conference 5) on the basis that they still had not obtained their expert evidence (Bourke par 7). Conference adjourned to 22 January 2004.
22.01.04 Pre-trial conference 6. Consent order made that the plaintiff do serve her expert report(s) or a substance thereof, upon which she intends to rely, on or before 20 February 2004. Pre-trial conference adjourned to 26 February 2004.
26.02.04 Pre-trial conference 7. The Registrar orders, inter alia, that:

1) the pre-trial conference be adjourned to a listing conference on 14 May 2004;

2) there be a further pre-trial conference on 5 May 2004;

3) the plaintiff do file and serve on or before 23 April 2004 a chronology of relevant events, a concise statement of the issues of fact and law which the plaintiff contends will need to be determined at trial, and an index of the reports of any expert witness(es) that the plaintiff intends to call at trial;

4) further, an order that the plaintiff serve any additional expert reports on or before 9 April 2004.

05.05.04 Pre-trial conference 8. The plaintiff's expert evidence still not provided (Bourke par 10). The Registrar ordered that:

1) the pre-trial conference be adjourned to 10 June 2004;

2) the Listing Conference scheduled for 14 May 2004 be adjourned sine die with liberty to apply on 48 hours notice.

10.06.04 Pre-trial conference 9. The Registrar ordered:

1) the pre-trial conference be adjourned to a Listing Conference on 30 July 2004;

2) that there be a further pre-trial conference on 23 July 2004;

3) no later than 21 July 2004 the plaintiff serve on the defendant a copy of the report of any expert witness, the substance of which she intends to rely on at trial or disclose in writing to the defendant the substance of any expert evidence that she intends to adduce at the trial.

22.07.04 Plaintiff's solicitors advise defendant's solicitors by facsimile in relation to the preparation of their expert evidence that: (Bourke par 12).

1) report of the expert had been prepared and that he required pre-payment prior to releasing it;

2) a Tax Invoice for payment of the report received;

3) they were in the process of arranging payment of the expert report.

23.07.04 Pre-trial conference 10. Adjourned to 25 August 2004.

23.07.04 Plaintiff's solicitors make application to Legal Aid WA to extend its legal aid certificate to cover the cost of obtaining report from an expert witness (affidavit of John Nicholas D'Angelo sworn 15 October 2003, par 4).
24.07.04 Extension of legal aid granted to the plaintiff (D'Angelo par 5).
06.08.04 Expert report received by plaintiff's solicitors and sent to the plaintiff for consideration. Considered that a further expert report was still required to progress the plaintiff's claim (D'Angelo par 6).
17.08.04 Further request to Legal Aid for an extension of aid to obtain a further expert report (D'Angelo par 7).
19.08.04 Plaintiff's solicitors advised by Legal Aid that the application for extension of legal aid had been refused (D'Angelo par 8).
22.08.04 Plaintiff's solicitors requested that Legal Aid review its decision to refuse an extension of legal aid. (D'Angelo par 9).

25.08.04 Pre-trial conference 11. The Registrar ordered that:

1) unless by 22 October 2004 the plaintiff complies with Order 3 of those orders made at pre-trial conference on 10 June 2004, the plaintiff's statement of claim be struck out and judgment entered for the defendant;

2) The pre-trial conference be adjourned sine die.

30.08.04 The plaintiff's solicitors request Legal Aid to undertake urgent review of its decision in light of the order made by the Registrar at the pre-trial conference on 25 August 2004. (D'Angelo par 11).
03.09.04 The plaintiff's solicitors receive notification from Legal Aid that application for aid had been reviewed and refused. (D'Angelo par 12).
03.09.04 Plaintiff's solicitors make request to Legal Aid that its decision be reviewed by a Review Committee. (D'Angelo par 13).
07.10.04 Plaintiff's solicitors notified that an extension of legal aid had been granted. Extension of legal aid to cover the cost of obtaining a further expert medical report from an ophthalmologist. (D'Angelo par 14).
08.10.04 Plaintiff's solicitors wrote to the defendant's solicitors requesting an extension of time within which to comply with the springing order. (D'Angelo par 15)
11.10.04 Plaintiff's solicitors contact Dr Paul Beaumont, ophthalmic surgeon, and advised that Dr Beaumont would not be in a position to deliver his opinion prior to 26 October 2004. (Affidavit of Jeffery Robert Potter sworn 24 May 2005 par 10)
15.10.04 Plaintiff filed application seeking an order that the springing order be extended for a further period of 8 weeks.

20.10.04 Plaintiff's application dismissed.

22.10.04 Plaintiff fails to serve expert evidence as ordered.

26.10.04 Defendant files judgment pursuant to the failure of the plaintiff to comply with the springing order.
26.11.04 Adjudged that the plaintiff's action be dismissed and the plaintiff pay the defendant's costs of the action to be taxed.
02.03.05 Dr Beaumont's expert received by plaintiff's solicitors (Potter par 16).
08.04.05 A signed substance of evidence of Dr Beaumont served on the defendant's solicitors. (Potter par 18).
26.05.05 The plaintiff files a further chamber summons seeking an extension of time to comply with the "springing order" made by the Registrar on 25 August 2004.
09.06.05 Plaintiff's application for an extension of time is again dismissed.
26.06.05 Plaintiff files Notice of Appeal from the latter decision of a Registrar.

Prior application for extension of time

3 The first thing to observe is that on 15 October 2004 the plaintiff made a first application seeking an order that the springing order be extended for a further period of eight weeks. That application was made prior to the time by which the springing order would expire. That application was dismissed. In his affidavit, Mr Potter (par 12) deposes on the basis of information which has come to him third hand, that the Deputy Registrar was not prepared to grant the extension sought because:

i. Before he would exercise his discretion, he needed to be satisfied that there was good reason for doing so;

ii. it was not appropriate to make an order for an extension that day, and the plaintiff was merely hopeful that a favourable opinion would be forthcoming;

iii. it was speculative;

iv. that a good reason would be a supportive opinion; and

v. that the plaintiff should obtain the opinion and then seek an extension of time.

4 In his affidavit in response, Mr Bourke (par 18) who was in attendance when that application was heard states:

"I have no recollection that the Deputy Registrar made the comments attributed to him in ((iv) and (v) above)".

5 In submissions from the Bar table, Mr Potter suggested that in effect, the Deputy Registrar was inviting the plaintiff to make a further application for extension of time when a supportive opinion had been obtained. I have some difficulty accepting that proposition. First, given that Mr Bourke was present, I would prefer his recall of events to that conveyed to Mr Potter by others. Secondly, if it was said then it could only have been understood to have been said in the context that the plaintiff should have obtained the supportive opinion before seeking the extension of time. At the time of that application the plaintiff did not have the opinion, and, quite understandably, the application in those circumstances was refused. That is not to say however, that the plaintiff could have another crack at an extension of time if and when at some time in the future a supportive opinion was obtained. That is, the application was deficient because there was no supportive material before the Deputy Registrar which would have warranted him exercising his discretion.
6 The plaintiff did not appeal that decision. No explanation is forthcoming on behalf of the plaintiff as to why the decision was not appealed. That would have been the appropriate course of action. The rules of Court (as relevant at the time) did provide that "a person affected by a ... decision of a Registrar may appeal there from to a Judge in chambers." (O 6 r 11 District Court Rules).
7 In my view the second application for an extension of time, which was dismissed and from which decision this appeal is made, was misconceived. The matter had been adjudicated upon by the Court. It is not open to a litigant to make multiple applications seeking the same relief where an unfavourable decision has previously have been given. Otherwise there would be no finality in interlocutory matters or, for that matter, in litigation. The principle of res judicata, viz, a matter that has been decided, applies in these circumstances.
8 On that basis alone I would dismiss the plaintiff's appeal. However, if it were thought that I am wrong in so concluding, I will nevertheless go on and consider the merits of the appeal in any event.

The principles on appeal

9 It was accepted by both parties that the Court may extend time for doing of any act in any proceedings notwithstanding the application for extension of time is brought after the expiration of that period: (O 3 r 5(2) Rules of the Supreme Court of Western Australia). This rule applies even after judgment has been entered by virtue of the springing order: See FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268. Even so, this power is to be exercised cautiously: Gull Petroleum (WA) Pty Ltd v Energy Process Systems Pty Ltd, unreported; SCt of WA; (Master Adams); Library No 920547; 2 November 1992. To say that there is jurisdiction to extend time where a springing order is made and not complied with is not to suggest that relief should be automatically granted to parties who have failed to comply with the orders of the Court. Orders as to time are made not to be ignored, but to be complied with: Samuels v Linzi Dresses [1980] 1 All ER 803 at 812: Gull Petroleum (supra).
10 Furthermore, the principles and objects of case flow management contained in O 1 r 4A and O 1 r 4B of the Rules of the Supreme Court of Western Australia must be taken into consideration: Seaman, Civil Procedure Western Australia at par 3.5.1. Based upon these rules, the length of the delay and the interests of justice are two important factors to be considered: Hawter v Stevens & Ors, unreported; SCt of WA; (Master Sanderson); Library No 970645; 25 November 1997. Delay causes general prejudice to the opponent even if no specific prejudice is demonstrated. As to the interests of justice, it cannot be proper for a plaintiff pursuing an action which has merit, simply to disregard orders of the Court and expect it to be indulged. It is fundamental in the interests of justice that parties comply with orders and if plaintiffs wish to pursue actions which have merit, they must do so expeditiously, and must comply with orders of the Court when they are made; Chesson v Green [2002] WASCA 67 at [14], [32]; Seaman, Civil Procedure Western Australia at par 43.0.19.
11 In addition to the above mentioned factors, courts have also taken into account the reason for the delay, whether the plaintiff has an arguable case and the prejudice which may be suffered by the respective parties when exercising this discretion: Chesson v Green (supra).

The plaintiff's delay

12 As will be observed from the chronology there has been considerable delay and much dilatoriness on the part of the plaintiff in these proceedings. The proceedings were commenced by writ issued on 18 August 2000. It is apparent that the cause for delay and failure to comply with orders of the Court has been the fact that it was not until some six months after the judgement in default had been obtained that the plaintiff was in receipt of evidence which might have supported her claim. It defies the standards of proper professional practice that such proceedings would be commenced without such supportive evidence having been obtained. The material was central to the plaintiff's case. Without it the litigation could only be regarded as speculative at best. Even at the entry for trial stage, the evidence had not been obtained. How then could the parties attending a pre-trial conference make a bona fide attempt to reach agreement on the claim: See O 5 r 5 District Court Rules. The very first pre-trial conference on 11 November 2002 was, according to the defendant, adjourned to enable the plaintiff to serve its expert evidence. The next four pre-trial conferences spanning a period of almost 12 months were adjourned for the same reason. At the next two pre-trial conferences Nos 6 and 7, orders were made that the plaintiff serve expert reports. None were forthcoming. Again, for the same reason, pre-trial conference No 8 was adjourned. On 10 June 2004 at pre-trial conference No 9, an order was made that the report of any expert witness be served no later than 21 July 2004. To that stage, seemingly, no steps whatever had been taken to obtain expert evidence which would clearly be central to the plaintiff's case. The first indication that steps were being taken appears from the affidavit of Mr D'Angelo at par 4 where he deposes:

"On 23 June 2004 in accordance with the plaintiff's instructions an application to Legal Aid Western Australia was made to extend its legal aid certificate to cover the cost of obtaining a report from an expert witness. The extension was required as the plaintiff was not in a financial position to pay for the expert report."

13 The affidavit of Mr Potter at par 5.9 simply deposes that:

"expert opinion was ... required to support the plaintiff's allegations that the defendant had failed to properly examine, diagnose and treat the plaintiff's diabetic retinopathy condition ... ".

14 Paragraph 5.10 refers to medical reports explaining the nature and extent of the plaintiff's visual disabilities. None of those reports proffer any opinion as to the alleged negligence of the defendant. I can only conclude that no expert opinion was sought until some time after legal aid was granted to cover the cost of obtaining such a report. Implicit in that is that the plaintiff's solicitors were not forthcoming to the Court or the defendant's solicitors, up to and including pre-trial conference No 9, that they neither held an expert report or had not even sought to obtain one. In that respect also neither the affidavit of Mr D'Angelo nor Mr Potter are fully frank as to those matters.
15 A report of an expert was received by the plaintiff's solicitors on 6 August 2004. Apparently that report was not adequate and the opinion was formed that a further expert report was required. By that, I understand to be the report of another expert as opposed to a further report from the expert whose report was obtained.
16 On 25 August 2004, the springing order was made. That was some 21 months after adjournment of the first pre-trial conference.
17 The failure and consequential delay in obtaining supportive expert evidence has not, in my view, been adequately explained by the plaintiff or by those advising her. Why was expert evidence not obtained before the action was entered for trial? When I asked that of Mr Potter, he responded to the effect that there is a practice whereby actions will be entered for trial before experts reports are available or obtained. If that is the case, then it is a practice which should not be condoned. As stated earlier, without such expert evidence, if that is what is to be relied on to establish the negligence of the defendant, at the pre-trial conference stage, the plaintiff's position is clearly put at risk. Likewise, no meaningful discussions could be entered in to. That rather defeats the purpose of the pre-trial conference process.
18 Subsequent to the entry of judgment in favour of the defendant on 26 November 2004, the substance of the expert evidence which the plaintiff obtained from Dr Paul Beaumont, an ophthalmic surgeon, was not provided to the defendant until April 2005. Again, there is no reasonable or satisfactory explanation for the considerable delay by the plaintiff, even after judgment was entered.
19 To the extent that there may have been delay by reason of the plaintiff's solicitors seeking legal aid to obtain the opinions, it is to be noted that such delay occasioned by the need to obtain legal aid will not necessarily justify an extension of time: See Baker v Bowketts Cakes Ltd [1966] 1 WLR 861 at 865.

Interests of justice

20 As to the interests of justice, it cannot be proper for a plaintiff to simply disregard orders of the Court and expect to be indulged. The plaintiff seemingly chose to ignore the consent order to serve expert reports on or before 20 February 2004 made at pre-trial conference No 6. That the plaintiff's solicitors consented to an order suggests that they either held expert/s reports or were confident that they would have them within the agreed timeframe. Such was not the case and suggests deceit of the Court. Similarly, the order for service of expert reports on or before 9 April 2004 made at pre-trial conference No 7 was not complied with. And again, the order made at pre-trial conference No 9 that the report of any expert witness be served no later than 21 July 2004 was not complied with. Finally, at pre-trial conference No 11, the springing order was made and that was not complied with. It is fundamental to the interests of justice that parties comply with orders made by the Court. A party who fails to comply with such orders should be under no illusions as to the consequence of their failure to comply. In Hawter v Stevens (supra), Master Sanderson said:

"But if a plaintiff wishes to pursue an action which has merit, it must do so expeditiously, and it must comply with orders of the Court when they are made. Otherwise, it cannot expect to use the services of the Court".

21 I fully concur with that statement.

Arguable case

22 The defendant contends that the plaintiff's case is weak and is of such little merit that this should be a factor in refusing an extension of time. It is impossible at this interlocutory stage to assess the merits of the claim. As much as is before the Court is an outline of the substance of the evidence of Dr Paul Beaumont on behalf of the plaintiff. No doubt the defendant would say that there is another side to the story. On the face of it I cannot conclude that the plaintiff's action is hopeless. In my view the merits of the claim weigh neither one way nor the other in this application.

Prejudice

23 The defendant contends that the delay in this action has caused prejudice to the defendant by virtue of the fact that over six years has elapsed since the date of the alleged negligence. Furthermore, the fact that the defendant has a judgment and is entitled to consider the matter at rest is a factor which might properly be taken into account. Again, in Hawter v Stevens (supra) Master Sanderson expressed the view that:

"... in any case where there is delay there is, of necessity, prejudice to the party not responsible for the delay. That might properly be called 'general prejudice' and flows simply from the fact of the delay itself. 'Specific' or ' particular' prejudice would describe an effect upon a litigant which is personal, consequent upon the situation of that litigant."

24 Again, I concur with that view.
25 In this case, the defendant is unable to point to any specific or particular prejudice. Nevertheless, in my view, the delay in and of itself and the prejudice that follows is a factor in favour of declining to extend the time.
26 On the other hand, the plaintiff contends that having at long last obtained a favourable expert report, the plaintiff's claim could now proceed to trial if an extension of time is granted. That view with respect is simplistic. It ignores the fact of the delay, the interests of justice, and prejudice to the defendant. That would suggest that the Court should not impose any sanction where there has been what I regard to be a contumelious and largely unexplained disregard of the orders of the Court. No doubt if an extension of time is not granted, the costs of the action will have to be borne by the plaintiff. That of itself is not unfair in that such costs should lie where they fall.
27 It is noted in any event (Mr Bourke par 23) that the plaintiff has initiated fresh proceedings against the defendant in this Court in 2005 (CIV 431/2005). The plaintiff did not condescend to mention this or put before the Court any information pertaining to those proceedings. Whether or not those proceedings arise from the same cause of action is not known to me. It was not argued on behalf of the plaintiff that if an extension of time were not granted in these proceedings, then the plaintiff will be statute barred or otherwise denied forever, the opportunity to pursue her action against this defendant. Insofar as considering this application is concerned, I can draw nothing one way or the other from this information.

Conclusions

28 In the circumstances of this case, I am not satisfied that the plaintiff's appeal should be allowed. I am not satisfied that there has been a sufficient or adequate explanation for failure to comply with the order which was made. The interests of justice demand that orders of the Court should be complied with, and that where there has been a failure to comply, then the party in default must bear the consequences of that failure. The consequence is to refuse to extend the time for compliance with O 1 of the order made by the Registrar in pre-trial conference on 25 August 2004.
29 The default judgment entered in this matter will stand.
30 The appeal will be dismissed.