SUPREME COURT OF QUEENSLAND

1. PINCUS JA:  I agree with Wilson J.

2. CULLINANE J:  I agree with Wilson J.

3. WILSON J: This is an appeal by the plaintiff against the dismissal of her application for leave to bring an application to renew the writ and for renewal of the writ for 12 months from the order.

4. By a writ issued on 21 November 1996 the appellant sued the respondent and two other parties. There was no attempt to serve the writ on any of the defendants, and it became stale a year after it was issued: Supreme Court Rules Order 9 rule 1. Wishing to proceed only against the respondent, the appellant filed her application on 11 November 1999. It was heard in February 2000 and subsequently dismissed.

5. The application was dealt with under the Uniform Civil Procedure Rules. The appellant sought leave to make the application under rule 389(2), on the basis that more than 3 years had elapsed since the last step in the proceeding. However, as Matthews J explained in Musumeci v Ferro Constructions Pty Ltd [1976] Qd R 135, an application for renewal is not itself a step in the proceeding, and so leave was not necessary. See also Rideout v Glaxo Group Limited [1996] 1 Qd R 200 at 206-7 per Derrington J.

6. Under rule 24(2) the appellant needed to show good reason why the writ should be renewed. In order to succeed on appeal she needed to show that the primary judge erred in the exercise of what was a wide and unfettered discretion: Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337; Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513 Appeal No 8805 of 1999, 10 December 1999. In order to understand the ways in which the discretion arguably miscarried, it is necessary to go into the facts.

7. The appellant was born on 14 May 1952. She deposed that after the birth of her first child in November 1985, she started to experience symptoms of a prolapsed uterus. She did not elaborate on those symptoms. However, it appears from a letter written by Dr David Winkle, a urologist, to her general practitioner in May 1995 that the prolapse caused her to suffer urinary incontinence. On 10 December 1993 the respondent, a gynaecologist, performed a surgical procedure known as a Manchester repair on her. During the surgery both of her ureters were blocked: this was corrected by further surgery within 12 hours. The appellant deposed –

“13. My life changed dramatically following the procedure and I became depressed and had numerous problems.  I had 14 bladder infections in a 6 month period following the operation.  To this day I still have problems urinating.  If I cough or sneeze I lose urine which is extremely embarrassing, particularly in my employment as a Flight Attendant.”

The appellant alleges that the respondent failed to warn her of potential complications and that the surgery was negligently performed.

8. The primary judge’s decision was influenced by a variety of considerations, including the merits of the plaintiff’s claim, the length of the delay, the absence of a satisfactory explanation for the delay, that the delay had been deliberate although service might have been effected at little cost, the failure to give notice of the claim to the respondent or his insurer, hardship to the appellant if the application were dismissed and prejudice to the respondent if it were granted.

9. He identified an appreciable risk of prejudice to the respondent in defending the proceeding insofar as it was based on a failure to warn. He said -

“14. It is not easy to form a view about the extent to which the chances of a fair trial have been jeopardised by the delay.  There is no suggestion that notes of consultations or treatment are missing or destroyed.  Indeed, the only material touching upon prejudice to Dr Rolley relates to the failure-to-warn case.  A solicitor deposes that Dr Rolley cannot recall the content of any warnings he may have given before the surgery.  By this, the solicitor means, it seems, that he does not have an actual recollection of his discussions with the plaintiff.  That is because the solicitor proceeds to say that the only evidence Dr Rolley could give in relation to the failure-to-warn case is ‘evidence of his general practice in relation to warning patients before surgery’.  It is not actually said that Dr Rolley does not remember the content of warnings he customarily gave in 1993 about such things or that his capacity to defend this failure-to-warn case is less than it would have been in December 1993 when the cause of action accrued.  (In forming a view about prejudice to the defendant, it is appropriate to contrast the present state of affairs with that which obtained when the cause of action accrued: Hoy v McCormack & Honan [1997] QCA 250, 19 August 1997;  Tyson v Morgan [1998] QSC 90;  [2000] 1 Qd R 100, 104-105.)  Still, what Connolly J called in Dempsey v Dauber [1990] 1 Qd R 418, 421 ‘the inevitable blurring of recollection’ over a long period is often a relevant species of prejudice.

15. In any conflict concerning the conversations between doctor and patient, there must be a chance that Dr Rolley will be the more disadvantaged by the delay.  Typically, a patient might be expected to better recall a conversation which has special meaning for her – such as one about invasive surgery – than a medical specialist trying to remember what from his perspective was a routine matter.  Here, in view of the significance which the plaintiff’s case attaches to the content of the consultation conversation (see para 2 [of primary judgment]), it looks as though the accounts of the plaintiff and Dr Rolley concerning the consultation(s) could matter.  Perhaps Dr Rolley’s prospects of being accepted have been diminished by the delay.  Although it is not possible to be sure that such prejudice may materialize, there seems an appreciable risk of it.

…..

17.  It was not suggested that the negligent performance of the surgery aspect should be permitted to proceed if the failure-to-warn case cannot."

10. The appellant’s principal submission was that, having identified that there was no prejudice to the respondent in relation to the allegation that the surgery was negligently performed, the primary judge ought to have granted the appellant’s application, conditional upon her not pursuing the allegation of failure to warn. It was submitted that he erred in not then determining the application separately in relation to each case. Paragraph 17 of the judgment is enigmatically expressed, and on appeal there was disagreement as to whether the possibility of proceeding with one allegation and not the other had been debated before the primary judge. At any rate, on appeal the appellant pressed the case based on failure to warn, arguing in the alternative that if she could not succeed there, then the case should be split.

11. Apart from prejudice, the issues considered by the primary judge were equally applicable to both cases.

12. The merits of an applicant’s substantive claim are a factor to be weighed in the balance in determining whether there is good reason to renew originating process. Of course an applicant need not adduce evidence approaching that required to succeed at trial, but he or she should at least be able to point to the existence of evidence which, if admitted at trial, would establish a prima facie case of negligence. Dr Newlinds, another gynaecologist, said that the blocking of the ureters bespoke a level of surgical skill and or care below that which is acceptable. However, that was surgically corrected very promptly, and there is nothing but the plaintiff’s own evidence linking her subsequent urinary complaints to the surgery. There is no evidence from her general practitioner, who apparently declined to respond to her solicitor’s request for information, and Dr Newlinds, after noting that she had had urinary problems before the surgery, said that it was outside his expertise to express an opinion on whether the subsequent urinary symptoms were attributable to the surgery or its complications. In this respect it cannot be said that at this stage the appellant has strong prospects on the case based on negligent surgery.

13. Counsel for the respondent submitted that this is why the appellant was reluctant to abandon the case based on failure to warn. However, the same weakness affects her prospects on the case based on failure to warn. In addition, to succeed at trial on the case based on failure to warn, the appellant would need to establish on the balance of probabilities that that failure resulted in some relevant action or inaction on her part: Green v Chenoweth [1998] 2 Qd R 572. This is a question for objective assessment by the trial judge (see Romeo v Conservation Commission of the Northern Territory (1997-98) 192 CLR 431 at 482 per Kirby J), although as is commonly the case, the appellant swore that it did.  She deposed -

“12. ...If I had of known of the complications I would have sought a further opinion and may not have proceeded with surgery though it would have been very uncomfortable.”

14. Senior counsel for the appellant submitted that even in relation to the case based on failure to warn, the primary judge had been unable to form the opinion that the chance of a fair trial had been jeopardised, at best finding “an appreciable risk” of prejudice. However, it is legitimate for a court to take account of the possibility of prejudice as opposed to actual prejudice, so long as it is not baseless speculation. The extent of the possibility is itself a factor to be weighed in the balancing exercise, and it was proper to take account of “an appreciable risk” of prejudice. The passage of time does not always operate in favour of or against both parties more or less in equal degree, and the primary judge was entitled to conclude that in the circumstances of this case there was a chance that the respondent would be the more disadvantaged by the delay. It was for the appellant to show good reason for excepting the case from the general rule that originating process cannot be served more than 12 months after its issue. Actual or potential prejudice to the respondent is often the decisive factor in the exercise of the court’s discretion. However, the absence of such prejudice does not necessarily result in the exercise of the discretion in favour of renewal. A fortiori, where a cause of action has two bases, only one of which is affected by such prejudice, it does not necessarily follow that the court should allow the one unaffected by prejudice to proceed, on condition that the other is abandoned. The primary judge carefully weighed the competing considerations. On the material before him, it would have been open to him to dismiss the application even if the claim had been based only on the negligent surgery.

15. In my view the appellant has failed to demonstrate that the primary judge made any error of principle in the exercise of his discretion, or that he exercised it in a way that was unreasonable. I would dismiss the appeal, with costs to be assessed.