Avsar v Westland Healthcare Limited

[2000] WADC 343

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   AVSAR -v- WESTLAND HEALTHCARE LIMITED [2000] WADC 343

CORAM:   REGISTRAR KINGSLEY

HEARD:   25 OCTOBER 2000

DELIVERED          :   Delivered Extemporaneously on 25 OCTOBER 2000 typed from tape and edited by Trial Judge

FILE NO/S:   CIV 3175 of 1997

BETWEEN:   JENNIFER PATRICIA AVSAR

Plaintiff

AND

WESTLAND HEALTHCARE LIMITED
Defendant

Catchwords:

Practice - Application to dismiss action for want of prosecution

Legislation:

Nil

Result:

Action dismissed for want of prosecution

Representation:

Counsel:

Plaintiff:     Ms J N Mugambwa

Defendant:     Mr A S Inglis

Solicitors:

Plaintiff:     Stephen Browne

Defendant:     Phillips Fox

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

Dzienciol & Ors v Logi Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998

Case(s) also cited:

Bourke v Kecskes [1967] VR 894

Dallas Development Corporation Pty Ltd v Western Australian Land Authority [2000] WASCA 49

Southern Cross Exploration NL and Others v Fire and All Risks Insurance Co Ltd and Others (1986) 4 NSWLR 491

Stollznow v Calvert [1980] 2 NSWLR 748

Witten v Lombard Australia Ltd (1968) 88 WN (Pt1) (NSW) 405

1. REGISTRAR KINGSLEY: The defendant’s application arises from the orders made by Deputy Registrar Hewitt on 25 February 1999.  Deputy Registrar Hewitt had before him an application by the defendant that within seven days the plaintiff pay into Court the sum of $30,000 or such other sum as the Court may determine.

2. Deputy Registrar Hewitt, on an application where the plaintiff did not appear, ordered that the plaintiff pay into Court the sum of $15,000 without fixing a time.  Reflecting, perhaps, the Deputy Registrar’s view of the statement of claim, the usual order for stay was conditioned such that it did not prevent the defendant from bringing an application to strike out the action due to, presumably, difficulties with her cause of action.

3. That order in the fullness of time, that being almost a year later, went before a Judge and a Judge dismissed any application to extend the time.  The plaintiff has been making payments into Court and on the best available information those payments total around about $800.  On the best available evidence it would appear that, with the plaintiff making payments, the order of Deputy Registrar Hewitt would be discharged in a little over two years’ time.

4. The defendant says that the Court has a jurisdiction to dismiss this action for failure to comply with the order of Deputy Registrar Hewitt on the basis of inexcusable delay.  The primary argument of the defendant is that the delay will give rise to substantial risk that it is not possible to have a fair trial.  The plaintiff’s cause of action arises from the death of her mother.

5. The plaintiff contends that the plaintiff’s mother received a double dosage of insulin whilst she was under the care of the defendants; that double dosage caused, if my memory serves me well, a hypoglycaemic attack which incapacitated the plaintiff’s mother and there is a claim under various heads.  I confess some difficulty with some of those heads.  I also note that the plaintiff is not the executor nor administrator of her mother’s estate.  That, of course, would reflect on some of those causes of action.

6. In an affidavit sworn 30 September 2000 the plaintiff, who resides in Turkey, explains her difficulties in complying with the order; that she is using her best endeavours to comply with the order and seeks to explain the delays.  There certainly is a balance, I think, between the plaintiff and the defendant and ultimately comes down to discretionary decision as to where on balance lies the justice.

7. The plaintiff’s counsel has stated that the medical notes have not been destroyed and that witnesses are available. But, if the security for costs is to be fully discharged, another two and a half years will have lapsed.  That will mean that the action would then be eight years old and will at that point be revived.

8. In Dzienciol & Ors v Logi Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998 the Court commented on the interplay between case management and delays and that, again, case management is not an end in itself.  What is to be identified is the prejudice to be suffered in relation to the continuation of this matter.  This action is not in its overall context a complex matter, but the issues raised by the plaintiff perhaps introduced complexities which ought not be there.  I also note that the plaintiff has had some considerable difficulties with her previous legal practitioners, and I think that is a factor I can take into account in coming to a conclusion.

9. In the end, whilst in the context of other cases the delay to this point is not overly great, for the matter now to simply lie in abeyance in my opinion would give rise to great prejudice.  In my opinion in the end that prejudice is outweighed by any benefits to the continuation of this action.  I will accede to the defendant’s application.  I will dismiss the plaintiff’s action.