Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Gillett v Robinson [2012] NSWCA 270
• Hearing dates: 27 August 2012
• Decision date: 31 August 2012
• Before: Barrett JA

Decision

Notice of motion filed on 10 May 2012 seeking extension of time dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEAL AND NEW TRIAL - time for initiation of appeal - application for extension of time - extent of delay considered - potential strength of appeal considered - prejudice to respondent considered - no sufficient case for extension shown
• Legislation Cited: Civil Procedure Act 2005, ss 56, 57, 58, 59; Uniform Civil Procedure Rules, rules 31.28, 51.8
• Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd [2009] NSWCA 104; Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516; Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61
• Category: Interlocutory applications
• Parties: Halina Gillett - Applicant; Jeffrey Robinson - Respondent
• Representation: D E Graham/N J Broadbent - Applicant; J K Kirk SC/H Pintos-Lopez - Respondent; Catherine Henry Partners - Applicant; Ashurst Australia - Respondent
• File Number(s): 2012/149700

Decision under appeal

• Citation: Gillett v Robinson [2011] NSWSC 1143
• Date of Decision: 2011-09-26 00:00:00
• Before: Harrison J
• File Number(s): 2006/267258

Judgment

1 Halina Gillett ("the applicant") seeks, by notice of motion filed on 10 May 2012, an extension of time for the filing of a notice of appeal.

2 The applicant was the unsuccessful plaintiff in proceedings brought in the Common Law Division against Jeffrey Robinson ("the respondent"), a medical practitioner who, as a specialist obstetrician, attended the applicant's mother when she gave birth to the applicant in 1985. The claim was, in essence, that the respondent breached a duty of care owed to the applicant by not advising the mother appropriately, as a result of which the applicant suffered injury in the form of shoulder dystocia in the course of delivery per vaginam.

3 The proceedings were heard by Harrison J on 1, 2, 3 and 5 August 2011. Judgment adverse to the applicant was given on 26 September 2011. At an earlier stage - in fact, on the first day of the trial - Harrison J dismissed an application by the applicant, as plaintiff, for leave to amend the statement of claim and to rely on new expert evidence. His Honour published reasons for that decision on 12 August 2011.

4 The applicant was represented by counsel on the first day of the trial. Counsel withdrew after the ruling just mentioned. The applicant's solicitor thereafter conducted her case.

5 The appeal the applicant wishes to bring concentrates on the interlocutory decision concerning amendment and new expert evidence.

6 Counsel who appeared for the applicant on the present application characterised the case actually run at trial as doomed to fail (which, of course, it did), saying that the applicant's only real chance of success lay with the amended case that she was not permitted to bring.

7 The appellant filed a notice of intention to appeal on or about 6 September 2011, that is, within the time envisaged by rule 51.8 of the Uniform Civil Procedure Rules 2005 (she apparently prepared this herself, although with some help from a solicitor). If the notice of intention was served (as to which there is doubt because it appears that only an unsealed copy was forwarded), the deadline for filing and serving a notice of appeal was 26 December 2011. If the notice of intention to appeal was not duly filed and served, the deadline was earlier. A notice of appeal was filed (out of time in either event), on 10 May 2012. The applicant now seeks to regularise the filing of the notice of appeal by obtaining an extension of time.

8 As Basten JA pointed out in Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [55], the approach to an application of this kind requires acknowledgment of the proposition enunciated in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at 519 that "the respondent to the application has a vested right to retain the judgment" which the applicant seeks to challenge on appeal. As Basten JA also pointed out, the factors to be examined upon such an application are:

1.the length of the delay

2.the reasons for the delay

3. the appellant's prospects of success

4.any prejudice suffered by the respondent.

9 As to 1, the matter speaks for itself. The delay is almost 20 weeks or, if the filing and service of the notice of intention to appeal were deficient, something of the order of 36 weeks.

10 As to 2, the applicant points to several matters. The applicant lost confidence in the solicitor who had represented her at the hearing. She sought a new solicitor and found Ms Henry who, on 6 December 2011, agreed to act for her. There had been earlier contact including on 26 September 2011. This was followed by a meeting on 28 September 2011. Ms Henry had originally been approached by the barrister who had represented the applicant on the first day of the hearing. That happened in the latter part of August 2011.

11 Ms Henry was authorised by the applicant to obtain the file from the solicitor who had represented her at the hearing. The client's written authority to hand over the file was forwarded by Ms Henry on 29 September 2011. The other solicitor replied on 7 October 2011 asking for an undertaking as to his costs. This was given on or about 18 October 2011. Seventeen lever arch folders were received by Ms Henry on 6 December 2011 (some seven weeks later) and she, on the same day, agreed to act.

12 Ms Henry needed to find counsel willing to act on a "no win no fee" basis. She found Mr Graham on 19 December 2011 but he said he could not attend to the matter until the end of January 2012. After the end of January vacation, Mr Graham sought further documents and records. He provided a draft notice of appeal on 26 March 2012. On 13 March 2012, Ms Henry had asked the applicant for funds to cover the filing fee. These were provided on 10 April 2012. On 13 April 2012, Ms Henry sent documents to Mr Graham to settle. This was done on 18 April 2012. Ms Henry sent the documents and the filing fees to the Court registry on 27 April 2012. There were several telephone conversations with the registry thereafter. Following filing on 10 May 2012, the sealed notice of appeal was received by Ms Henry on 14 May 2012 and served with the notice of motion and affidavit on 15 May 2012.

13 In July 2012, Ms Henry was diagnosed with an illness that may have hindered her efficiency at earlier times.

14 The applicant thus says that the delay was occasioned by her difficulty in obtaining the services of a solicitor and barrister on a "no win no fee" basis, her financial difficulties, the unreasonable delay in the former solicitor's handing over of the file, the Christmas - January vacation, confusion in the registry and, perhaps, ill-health of Ms Henry.

15 As to item 3 at [8] above (the prospects of success), it is necessary to refer to the case that was actually run, the case that would have been run had the amendment and new evidence been allowed and the judge's reasons for dismissing the application in that regard.

16 The case in which the applicant failed was, in essence, that caesarean section was the only appropriate method of delivery and that the mother had demanded caesarean section, whereas the delivery was, in accordance with the respondent's advice, a vaginal delivery. This case was not supported by the mother's evidence or the expert evidence. The alternative case, had it been advanced, would have gone to the issue whether the respondent should have advised the mother of the relative advantages and disadvantages of caesarean section and vaginal delivery.

17 The amended application and the application to rely on new expert evidence were, as I have said, made and dismissed on the first day of the trial, 1 August 2011. The registrar had appointed the hearing dates almost nine months earlier, on 9 November 2010. The registrar had also made a direction regarding expert evidence with a view to the obtaining of a joint report by the three expert medical practitioners who were retained. There was a direction that they confer by 30 March 2011. The conference occurred on 20 July 2011. The experts were unanimous in answering certain questions in the negative, that is, in a way inimical to the success of the applicant's case.

18 The respondent's solicitor then asked the applicant's solicitor, in effect, whether the applicant intended to proceed in the face of such an obstacle. The reply (on 25 July 2011) - a week before the hearing was due to commence - was that the applicant was in the course of obtaining a report from Dr Molloy. That report was served on 27 July 2011, two clear working days before the trial. Service at that late stage was contrary to rule 31.28 of Uniform Civil Procedure Rules in the absence of leave; and, under rule 31.28(4)(a), leave could not have been granted in the absence of "exceptional circumstances".

19 In his reasons concerning the amendment application, the judge found (at [34]) that the answers of the three experts had confirmed an opinion about the extreme weakness of the applicant's pleaded case that had been expressed by a particular senior counsel in July 2010, which opinion was confirmed by another senior counsel in July 2011 when the experts' answers were received; and it was only at the later of those times that "any search for a new case commenced".

20 The judge next noted (at [35] - [37]) that the new case was at odds with evidence to which the applicant's mother was committed.

21 At [38], the judge described the application as "futile" - adding that, in any event, it came "so late in the day that it is difficult to discern any redeeming basis upon which it could possibly be favourably considered". His Honour continued:

"It is patently an attempt to save a case that has taken a body blow in the form of the joint experts' report. The only exceptional circumstances attending the application are that it comes on the first day of the hearing with no more than a week's notice to the other side. The latest that such an application might reasonably have been expected would be in the days and weeks immediately following the emphatic advice given by Mr Harben SC on 29 July 2010. Almost precisely twelve months elapsed with nothing emerging. There is no satisfactory explanation of why, if it was genuinely supported by the plaintiff's original instructions, the new case did not either form part of her case from the start or become the subject of an application to amend much earlier. The only apparently available answers to that question do not shed any favourable light on the plaintiff's side of the record."

22 The judge referred (at [31]) to the fact that the applicant had, at an earlier stage, acknowledged and conceded that she would call no further evidence. Reference was also made to Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 and to the provisions of ss 56, 57, 58 and 59 of the Civil Procedure Act 2005 and the following passage in Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd [2009] NSWCA 104 at [36]:

"[36] Sections 56, 57, 58 and 59 require a judge, exercising a discretion under UCPR r 1.12, to have regard to whether a party, seeking the exercise of the discretion in its favour, has:

(a) diligently pursued the object of disposing of the proceedings in a timely way;

(b) used, or could reasonably have used, available opportunities under the rules or otherwise, to avoid delay; and

(c) reasonably implemented the practice and procedure of the court with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination."

23 Several proposed grounds of appeal are advanced by the applicant.

24 It is contended that the judge was wrong to reject the amendment and new evidence on the grounds of lateness. The considerations at [17], [18], [19] and [22] above obviously militate very strongly against any such argument.

25 The applicant next says that the judge should not have regarded the mother's position, as to the evidence available from her, as inimical to the success of the new case since little weight would be attached to her evidence, given with hindsight, of what she would have done. The response must be that, even if of little weight, the mother's evidence would be at odds with the new case.

26 The applicant challenges the judge's view that there was no satisfactory explanation as to why the new case had not been raised earlier. She points to bad advice and management by lawyers. That may be an explanation but is an explanation that cannot be regarded as satisfactory and, in any event, may be the source of other rights of the applicant.

27 The applicant says that the judge did not correctly weigh the prejudice to the applicant and the prejudice to the respondent. That, of course, is an evaluative judgment.

28 That leads me to a particularly compelling point made by counsel for the respondent. The judge's decision on the question of amendment (together with new evidence) was a discretionary decision on a matter of practice and procedure. Any appeal will fall to be determined by reference to the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499 and the scope for appellate intervention will be constrained accordingly.

29 In my view, the prospects of success on appeal must be rated as quite weak - even very weak.

30 There is finally item 4 at [8] above, the extent of prejudice to the respondent.

31 The significant factor here is that the respondent has the benefit of dismissal of the proceedings and, therefore, the "vested right" arising from the judgment in his favour. It would be significantly prejudicial to the respondent to be put to the inconvenience and strain of another trial in relation to events that happened some 27 years ago and which the applicant has already had a perfectly adequate opportunity to litigate. It is acknowledged that the respondent is insured. That, while relevant to issues of financial prejudice, does not detract from the fact that, although the respondent has retired from practice (he is now aged 70), any further trial has the potential to damage his reputation.

32 The delay is substantial. The initial step of filing a notice of intention to appeal (not followed, it seems, by valid service thereof) was taken reasonably promptly. Thereafter there was quite significant delay which came very largely from inactivity or slowness on the part of the applicant's solicitor (including in not pressing the former solicitor for delivery of the file), coupled with the difficulty of obtaining representation on a "no win no fee" basis. It is clear that much of the delay could have been avoided by more diligent application by Ms Henry to the task of obtaining the file from the former solicitor and progressing matters with counsel. Ms Henry's health may have played a part in this.

33 There are unsatisfactory aspects to the explanation of the delay. This makes it relevant to have regard to what was said by Hodgson JA in Tomko v Palasty (No 2) (above) at [14]:

"In my opinion, there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable."

34 The present case, in my view, is one where, as I have said, there are unsatisfactory aspects to the explanation for delay; also there is appreciable prejudice to the respondent. The case the applicant seeks to make does not have "more substantial merit than merely being fairly arguable". I have assessed it as being quite weak, even very weak.

35 That combination of findings means that the notice of motion filed on 10 May 2012 should be dismissed with costs.

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Decision last updated: 31 August 2012