Mulcahy v Monsour[2005] QSC 348

SUPREME COURT OF QUEENSLAND 

[1] MULLINS J:  The plaintiff has commenced three proceedings in this Court seeking damages for professional negligence.  Each of the defendants (except Dr Whiting) seeks to have the plaintiff’s claim against that defendant dismissed for want of prosecution pursuant to r 5 of the UCPR or, alternatively, that the claim be struck out pursuant to either rr 280 or 371 of the UCPR.

Introduction

[2] The plaintiff was born in 1965 and had hydrocephalus.  She had an existing ventricular peritoneal shunt (“VP shunt”) when she consulted oral surgeon Professor Monsour in July 1997 in relation to the extraction of her lower impacted wisdom teeth.  The plaintiff consulted infectious diseases specialist Dr Georghiou on 6 August 1997 in relation to the proposed surgery and raised concerns about potential risks associated with the surgery due to her medical condition including the shunt.  Dr Georghiou advised the plaintiff that administration of pre-operative and peri-operative Lincomycin or Clindamycin and Gentamycin intravenously and post-operative Clindamycin orally would minimise the chance of shunt infection and advised the plaintiff’s treating practitioners of the proposed administration of antibiotics in relation to the surgery. The surgery was performed by Professor Monsour at the Holy Spirit Hospital on 19 August 1997.  The anaesthetist for the surgery was Dr Reilly. 

[3] The plaintiff alleges that she suffered infection following the surgery, has suffered ongoing severe infections in her jaw and in other parts of her body and infection associated with her shunt and has been required to undergo further surgeries, including removal of the shunt on 28 September 1999 and various procedures associated with various abscesses.

[4] The plaintiff alleges that she was not given proper prophylactic antibiotic dosages before, during and after the wisdom teeth surgery and that was the cause of the severe and ongoing infections from which she claims to have suffered.  Supreme Court proceeding 7218 of 2000 (“the first proceeding”) was commenced by claim and statement of claim filed on 18 August 2000 against Professor Monsour, Dr Reilly, the Holy Spirit Hospital and Dr Georghiou. 

[5] As a result of suffering continuing infections after the surgery on 19 August 1997, the plaintiff consulted neurologist Dr Sandstrom on several occasions in 1998 and 1999.  The plaintiff alleges that Dr Sandstrom failed to diagnosed that her VP shunt was infected and that caused or materially contributed to delayed diagnosis and treatment of the infected VP shunt.  The plaintiff also consulted neurosurgeon Dr Coyne on 21 July 1998 and 19 April and 15 June 1999 for medical advice and treatment and also alleges that Dr Coyne failed to diagnose that the plaintiff’s VP shunt was infected.  The plaintiff consulted infectious diseases physician Dr Whiting on 16 December 1997 and also alleges that Dr Whiting failed to diagnosed that the plaintiff’s VP shunt was infected.  Supreme Court proceeding 6583 of 2001 (“the second proceeding”) was commenced by claim and statement of claim filed on 20 July 2001 against Dr Sandstrom, Dr Coyne and Dr Whiting. 

[6] The plaintiff consulted Dr Georghiou on numerous occasions between 28 August 1997 and 31 August 1999 for medical advice and treatment.  The plaintiff also claims that Dr Georghiou failed at each consultation to diagnose that the plaintiff’s VP shunt was infected and that those failures caused or materially contributed to delayed diagnoses and treatment of the infected shunt.  The plaintiff therefore commenced Supreme Court proceeding 7371 of 2001 (“the third proceeding”) against Dr Georghiou by claim and statement of claim filed on 16 August 2001. 

History of the first proceeding

[7] The claim and statement of claim in the first proceeding were served on Professor Monsour as the first defendant on 17 August 2001, Dr Reilly as the second defendant on 16 August 2001, The Mission Congregation of the Servants of the Holy Spirit which trades as the Holy Spirit Hospital as the third defendant on 16 August 2001 and Dr Georghiou as the fifth defendant on 14 August 2001.  Although the Holy Spirit Hospital was named as the fourth defendant, it is not a separate entity from the third defendant.

[8] An amended claim and statement of claim was filed on 21 September 2001.  Paragraph 6 of the amended statement of claim alleges:

“6.The plaintiff was not given proper prophylactic antibiotic dosages before, during and after surgery and thereupon suffered severe and ongoing infections, both at the site of the surgery and elsewhere in her body, including in association with a previously inserted internal shunt, and the Plaintiff has suffered as a consequence severe infections and consequential loss and damage.”

[9] Paragraph 7 of the amended statement of claim alleges:

“7.The Plaintiff’s personal injuries and consequential loss and damage were caused by the negligence and/or breach of contract of the First Defendant.

Particulars

(a)Failing to exercise due care, diligence, skill and caution in performing surgery to the Plaintiff’s wisdom teeth;

(b)Failing to ensure that the proper prophylactic antibiotic cover was in place;

(c)Failing to properly seal off the wounds associated with the surgery so as to minimise risk of infection;

(d)Failing generally to take any or any appropriate steps before, during and after surgery to ensure the risk of infection was minimised;

(e)Failing to take prompt action when it became apparent after the operation that the Plaintiff was suffering from a severe infection;

(f)Failing to advise or adequately advise the Plaintiff as to the nature and extent of the risks associated with the surgery, and in particular, the risk of infection;

(g)Failing generally to exercise the care and skill reasonably to be expected of a specialist Oral Surgeon in all the circumstances.”

[10] In the particulars of the damages claimed by the plaintiff set out in paragraph 16A of the amended statement of claim, the plaintiff pleads that she is a qualified journalist and admitted as a barrister and that she presently practises privately as a barrister.  The plaintiff also pleads that she has been unable to work for most of the period since 19 August 1997. 

[11] Professor Monsour’s notice of intention to defend was filed on 27 September 2001.  Professor Monsour pleaded in paragraph 2 of the defence the detail of the advice which he claims he gave to the plaintiff on 31 July 1997 about the proposed removal of the plaintiff’s wisdom teeth and the risk of injury involved including that the risk of infection was higher for the plaintiff because of her pre-existing condition of hydrocephalus.   Professor Monsour responded to the allegations in paragraph 6 of the amended statement of claim as follows:

“4.The first defendant denies the allegations in paragraph 6 of the amended statement of claim and is unable to admit same because:-

(a)following the plaintiff’s admission to the Holy Spirit Hospital on 19 August 1997 and prior to the surgical procedure carried out by the first defendant on that day, the plaintiff was administered antibiotics, namely Clindamycin 600 mgs intravenously and Gentamycin 120 mgs intravenously;

(b)following the surgical procedure carried out by the first defendant on 19 August 1997, the plaintiff was administered antibiotics, namely Clindamycin 600 mgs intravenously at about 10.00pm on 19 August 1997 and Clindamycin 600 mgs intramuscularly on 20 August 1997, prior to discharge from the Holy Spirit Hospital;

(c)the first defendant prescribed for the plaintiff antibiotics to be taken upon discharge from the Holy Spirit Hospital, namely Dalacin C (Clindamycin 150 mgs) to be taken four times daily for six days;

(d)the plaintiff did not suffer any infections whether as alleged or at all whilst under the care of the first defendant or as a result of the surgery carried out on 19 August 1997 by the first defendant;

(e)the first defendant has not had an opportunity to review the plaintiff’s medical reports, disclosure or to have the plaintiff examined;

(f)the allegation is too imprecise, not containing any positive or definitive assertion.”

[12] In paragraph 5 of his defence, Professor Monsour particularised the nature of the sutures that were used in the course of the surgery “to effect full primary closure of mucosa”.  Professor Monsour also alleged that if the plaintiff had not been adequately advised as to the nature and extent of the risks associated with the surgery, the plaintiff would still have elected to undergo the treatment proposed by Professor Monsour and carried out on 19 August 1997, if “perfect advice” about the risks had been given, because of the risk of serious illness to the plaintiff if she did not.   

[13] On or about 1 October 2001 Professor Monsour’s solicitors made a request of the plaintiff for further and better particulars of the amended statement of claim.  In respect of paragraph 6 of the amended statement of claim, Professor Monsour sought particulars of the prophylactic antibiotic dosages given to the plaintiff before, during and after surgery.  The response to that in the particulars that were not provided until 3 May 2002 was merely that the plaintiff was given one intramuscular injection of a substance on 20 August 1997.  Professor Monsour had also sought particulars of what would have been the proper prophylactic antibiotic dosages before, during and after surgery and when such antibiotic ought to have been given.  The plaintiff’s response to that in the particulars provided on 3 May 2002 was:

“The prophylactic doses advised to the plaintiff for the surgery were a combination of clindamycin and gentamycin.  The plaintiff had been advised that prior to surgery 600mg of clindamycin should be given half an hour prior to surgery and that subsequent doses of the same amount should be given to provide 24 hours of cover post surgery.  The plaintiff was also advised that gentamycin should be used.  Dosage depends on bodyweight.” 

[14] Professor Monsour’s request for particulars was also directed to each of the particulars of negligence alleged in paragraphs (a) to (g) of paragraph 7 of the amended statement of claim.  The plaintiff in her particulars provided on 3 May 2002 failed to provide any particulars that were requested in respect of the allegations in paragraphs 7(a) and (c) of the amended statement of claim and the particulars that were provided of the allegations in paragraphs 7(f) and (g) were considered by Professor Monsour’s solicitors to be less than satisfactory.  The plaintiff provided additional further and better particulars on 31 July 2002 that were directed at paragraphs 7(a), (c), (f) and (g).  Notwithstanding this attempt, on any view there were still no proper particulars provided of paragraph 7(a) of the amended statement of claim.  Professor Monsour’s solicitors were of the view that the additional particulars did not properly address the requests.

[15] The plaintiff alleges that Dr Reilly breached his duty of care or contractual obligation to ensure the provision of sufficient prophylactic antibiotic cover to avoid the risk of infection and to advise the plaintiff of all possible consequences of the surgery.  Dr Reilly’s notice of intention to defend was filed on 25 October 2001.  Dr Reilly’s response to paragraph 6 of the amended statement of claim was in the following terms:

“5.In relation to the allegations in paragraph 6 of the amended statement of claim the second defendant:

(a)denies that the plaintiff was not given proper prophylactic antibiotics dosages before the surgery.  The second defendant says that the allegation is untrue.  In support of the denial the second defendant says that the second defendant administered 600mg of Clindamycin and 120mg of Gentamycin intravenously (‘the antibiotics’) to the plaintiff immediately before the surgery;

(b)admits that the plaintiff was not given further antibiotics during the surgery.  The second defendant says that the administration of further antibiotics during the surgery was not required.

(c)does not admit that the plaintiff was not given proper prophylactic antibiotic dosages after the surgery.  The second defendant has made reasonable inquiries and remains uncertain of the truth or otherwise of the allegation.  The second defendant says that the second defendant prescribed that Clindamycin be administered intravenously postoperatively and that but for prescribing for the immediate post-operative period the second defendant did not have the routine post-operative care of the plaintiff or responsibility for the plaintiff’s post-operative medical management; and

(d)does not admit the balance of the allegations in paragraph 6 of the statement of claim.  The second defendant has made reasonable enquiries and remains uncertain of the truth or otherwise of the allegations.  The second defendant did not have responsibility for the plaintiff’s subsequent medical management and requires the plaintiff to produce medical and other evidence and awaits the plaintiff’s statement of loss and damage prior to pleading further to the allegations.”

[16] The third defendant originally filed its notice of intention to defend on 10 September 2001.  In that defence the third defendant did not admit the allegations of fact contained in paragraph 6 of the statement of claim on the basis that they were not allegations against the third or fourth defendants.  In the amended statement of claim the plaintiff alleges that the third defendant is vicariously liable for the negligence and/or breach of contract of its servants or agents, Professor Monsour and Dr Reilly, and that the third defendant owed to the plaintiff a non-delegable duty of care and/or it was an implied term of the contract between the third defendant and the plaintiff that the third defendant would ensure that the treatment which the plaintiff received was performed with all professional care, knowledge, skill and diligence including the provision of sufficient prophylactic antibiotic cover to avoid the risk of infection and would advise the plaintiff of all possible consequences of the surgery which was to be administered to the plaintiff.  The plaintiff alleges that her injuries and consequential loss and damage were caused by the negligence and/or breach of contract of the third defendant, as particularised in the paragraphs in the amended statement of claim pleaded against Professor Monsour and Dr Reilly. 

[17] The third defendant filed a further amended defence on 3 June 2003 in which the allegations in paragraph 6 of the amended statement of claim were specifically responded to:

“3AThe third defendant denies the allegations in paragraph 6 of the Amended Statement of Claim and says that:

(a)The plaintiff was given proper prophylactic antibiotic dosages before during and after the surgery referred to in paragraph 5 of the Statement of Claim (‘the surgery’).

Particulars

(i)Following the plaintiff’s admission to the Holy Spirit Hospital on 19 August 1997 and prior to the surgery, the plaintiff was administered antibiotics, namely Clindamycin 600mgs intravenously and Gentamycin 120mgs intravenously;

(ii)In view of the administration of antibiotics particularised in subparagraph (a) hereof, there was no medical necessity for the administration of antibiotics during the surgery;

(iii)Following the surgery, the plaintiff was administered antibiotics, namely Clindamycin 600mgs intravenously at about 10.00pm on 19 August 1997 and Clindamycin 600mgs intramuscularly on 20 August 1997, prior to discharge from the Holy Spirit Hospital;

(iv)Further, following the surgery and prior to or at the time of discharge, the plaintiff was dispensed further antibiotics, namely a packet containing 25 Dalacin C capsules (Clindamycin) by agents of the third defendant, namely Gardiner’s Pharmacy on 19 August 1997.

(b)Any infection suffered by the plaintiff was not consequent upon any inadequacy of prophylactic antibiotic dosages before, during or after surgery.”

[18] The third defendant also defends the plaintiff’s allegations on the basis that Professor Monsour and Dr Reilly were not the servants or agents of the third defendant, but had rights as Visiting Medical Officers at the Holy Spirit Hospital and that there was no non-delegable duty of care owed by the third defendant to the plaintiff or any implied term of any contract between the third defendant and the plaintiff as alleged by the plaintiff.

[19] The allegation against Dr Georghiou in the first proceeding arises out of the plaintiff’s consultation with him on 6 August 1997.  The plaintiff alleges against Dr Georghiou that he owed her a duty of care and/or it was a term of a contract between them that Dr Georghiou would ensure that the treatment that the plaintiff received was performed with all professional care, knowledge, skill and diligence and that, as part of such treatment, Dr Georghiou would communicate with the plaintiff’s surgeon and anaesthetist as to the proper antibiotic cover.  The particulars of the negligence and/or breach of contract alleged by the plaintiff against Dr Georghiou were failing to exercise due care, diligence, skill and caution in caring for the plaintiff and failing to ensure that the plaintiff received the appropriate prophylactic antibiotic cover during and after surgery.   

[20] Dr Georghiou filed his defence to the first proceeding on 25 October 2001.  Dr Georghiou denied the allegations of negligence and/or breach of contract pleaded against him and in paragraph 8(c) set out the following particulars of the advice and treatment he exercised in relation to the plaintiff:

“(i)In consultation on 6 August 1997 the fifth defendant obtained a detailed history from the plaintiff, including of hydrocephalus treated by a shunt;

(ii)The fifth defendant advised the plaintiff regarding administration of pre-operative and peri-operative Lincomycin or Clindamycin and Gentamycin intravenously and post-operative Clindamycin orally;

(iii)The fifth defendant explained to the plaintiff that the administration of the antibiotics would minimise the chance of shunt infection but would not guarantee that shunt infection would not occur;

(iv)The fifth defendant counselled the plaintiff regarding her concerns; and

(v)The fifth defendant wrote to the plaintiff’s treating practitioners with details of the proposed administration of antibiotics in relation to the surgery.”   

[21] No reply to any of the defences has been filed by the plaintiff at any time in the first proceeding. 

[22] The plaintiff had solicitors acting on her behalf in initiating the first proceeding.  She terminated their retainer in August 2001 and sought the assistance of a barrister who settled the amended statement of claim.  The plaintiff then approached a couple of firms of solicitors, but was unsuccessful in obtaining legal representation satisfactory to her.  At that stage, however, the particulars requested by Professor Monsour had not been provided and his solicitors by letter dated 12 December 2001 put the plaintiff on notice that if they were not provided by 14 December 2001, they would file an application in relation to the particulars that were sought.  That was done and the application and supporting affidavit were served on the plaintiff on 27 December 2001.  The plaintiff wrote in response that she was taking holidays from 21 December 2001 until 21 January 2002 and requested during that period that no steps be taken to “cause prejudice” to herself. 

[23] Carne & Herd were retained to act on behalf of the plaintiff and filed a notice of change of solicitors on 9 January 2002.  As a result, Professor Monsour’s application for particulars was adjourned by consent to enable Carne & Herd to obtain an expert report and provide the particulars.  A further extension for providing them was granted by Professor Monsour until 29 March 2002.  When the particulars were not provided, the application was relisted.  The plaintiff terminated the retainer of Carne & Herd and filed a notice that she was acting in person on 12 April 2002.  On 12 April 2002 the plaintiff consented to orders being made against her in relation to the provision of the particulars.

[24] After receiving the particulars that were provided by the plaintiff on 3 May 2002, Professor Monsour’s solicitors by their letter of 20 May 2002 put the plaintiff on notice that they considered the particulars provided in respect of paragraphs 7(a), (c), (f) and (g) of the amended statement of claim were not adequate.  At the same time they provided Professor Monsour’s list of documents and copies of the documents disclosed in that list and requested the plaintiff to provide a list of documents and proper particulars within 14 days. 

[25] By letter dated 7 June 2002 the plaintiff advised Professor Monsour’s solicitors that she was being admitted to hospital on that day and would not be able to respond to the request for further and better particulars and the list of documents until 20 June 2002.  Professor Monsour’s solicitors sent the plaintiff a letter dated 12 June 2002 pursuant to r 444 of the UCPR in relation to the failure to serve a list of documents and provide proper particulars in response to the request for further and better particulars.  According to the affidavit of Mr Bruce that was filed on behalf of the plaintiff by leave at the hearing on 25 July 2005, the plaintiff was participating “in a trial treatment for Pernicious Anaemia” during the period June to September 2002.  The plaintiff provided Professor Monsour’s solicitors with a medical certificate for the period 1 May to 7 July 2002 that referred to the plaintiff being medically unfit because of “pernicious anaemia and associated hospitalisations for treatment”. 

[26] It appears that the plaintiff was then involved in a motor vehicle accident in which she was injured on 6 July 2002.  The plaintiff obtained a further medical certificate that she was unable to attend to work duties for the period 7 to 15 July 2002 due to neck/back pain from the motor vehicle accident.  Professor Monsour therefore extended the time until 31 July 2002 for the plaintiff to provide her list of documents and the proper particulars that had been requested.

[27] The plaintiff forwarded a list of documents to Professor Monsour’s solicitors by facsimile on 1 August 2002.  The number of documents listed was 40, but the list included a statement that it was “incomplete and will be amended as documents are obtained”.  One of the documents that was disclosed was a medico-legal report from neurosurgeon Mr David Wallace dated 16 July 2002.  Although shown in the list as dated 16 July 2002, the report is actually dated 16 July 2001.  Professor Monsour’s solicitors requested a copy of Mr Wallace’s report in their letter dated 5 August 2002.  That letter also pointed out that the list of documents was not in the form required under the UCPR and there was no stipulation in respect of the documents over which the plaintiff claimed privilege.  That letter also foreshadowed bring an application for disclosure in accordance with the UCPR and proper particulars.  By letter dated 23 August 2002 Professor Monsour’s solicitors gave the plaintiff notice that their instructions were to proceed with an application in relation to meaningful further and better particulars of the amended statement of claim, compliance by the plaintiff with her obligations of disclosure and to obtain a statement of loss and damage. 

[28] The plaintiff in her letter of 28 August 2002 sought further time to obtain advice on adequacy of the particulars provided and to complete disclosure.  She advised that she had been in ill-health for some time as a result of medical problems and the motor vehicle accident and would be in hospital from 30 August 2002.  It appears that hospital visit was deferred for a week or so and by letter dated 4 September 2002 the plaintiff sought further time before responding to the matters raised by Professor Monsour’s solicitors.  Then on 19 September 2002 the plaintiff wrote a letter to Professor Monsour’s solicitors advising that she would not be in Brisbane from 19 September until 4 October 2002 “due to personal reasons” and requested that no steps prejudicial to her be taken in that time.

[29] There were no further communications between Professor Monsour’s solicitors and the plaintiff until 4 February 2003.  Professor Monsour’s solicitors obtained an expert report from oral and maxillofacial surgeon Dr Christopher Muir dated 28 January 2003 and by letter dated 4 February 2003 forwarded that report to the plaintiff.  In that letter notice was given to the plaintiff of their instructions to apply to have the first proceedings struck out for want of prosecution and for failure to comply with the UCPR. 

[30] Dr Muir recited that he had been provided with four large volumes of records and documents including X-rays.  It is apparent from his report that he was provided with Professor Monsour’s records.  Dr Muir could find no evidence of any lack of care on the part of Professor Monsour in his management of the plaintiff’s wisdom teeth surgery.

[31] According to Mr Bruce’s affidavit, the plaintiff was receiving intensive medical treatment from in or about November 2002 for approximately 7 weeks in the form of an iron infusion.

[32] By letter dated 10 February 2003 the plaintiff advised that the delay in progressing the documents required by Professor Monsour was caused by ill-health and suggested that she would be able to provide relevant documents by 22 February 2003. 

[33] According to Mr Bruce’s affidavit, the plaintiff was in and out of hospital between 31 January and 23 June 2003 having dental work done to repair damage caused in the motor vehicle accident and on each occasion the plaintiff was hospitalised for 4 days and then spent a further 10 days as a day patient on an antibiotic drip. 

[34] By letter dated 17 March 2003 the plaintiff advised Professor Monsour’s solicitors that she was continuing to work on the material requested by them, but that she was due to be admitted to hospital on 17 March and 28 March 2003. 

[35] By letter dated 10 June 2003 the plaintiff advised Professor Monsour’s solicitors that she would be in hospital from that day for approximately 3 weeks for surgery and post-surgical treatment.  By letter dated 5 September 2003 the plaintiff advised Professor Monsour’s solicitors that she would be away in relation to a personal matter from 5 to 29 September 2003.  She also advised that she had been seriously ill until that time following an allergic reaction which lasted some weeks following her surgery in June 2003.

[36] It appears that the plaintiff had approached at least 8 firms of solicitors between April 2002 and December 2004 and was unsuccessful in obtaining legal representation on a speculative basis.  According to Mr Bruce, on most occasions these firms had possession of the plaintiff’s file for about a month at a time.  One solicitor whom the plaintiff approached in February 2004 held onto her file for 6 months before advising that he would not act on her behalf in these proceedings.  The plaintiff’s current solicitors took over the conduct of the matters on 9 December 2004 and by letter dated 17 December 2004 advised each of the solicitors for the defendants in the first proceeding that they were acting.  Although it appears from Mr Bruce’s affidavit that the plaintiff’s solicitors then took steps to obtain copies of her tax returns, group certificates and tax assessments and inquire about experts who would be able to provide reports for the plaintiff, there were no communications between the plaintiff’s solicitors and Professor Monsour’s solicitors until Professor Monsour’s solicitors advised the plaintiff’s solicitors on 5 July 2005 of the making of an application to strike out the first proceeding.

[37] The solicitors for Dr Reilly and Dr Georghiou in the first proceeding are Blake Dawson Waldron (“BDW”).  BDW sent the plaintiff the list of documents for both Dr Reilly and Dr Georghiou under cover of their letter dated 27 November 2001 and made a request at the same time for the plaintiff’s list of documents and statement of loss and damage.  The plaintiff also notified BDW of the fact that she was taking holidays between 31 December 2001 and 21 January 2002. 

[38] On 8 February 2002 BDW wrote a letter to the then plaintiff’s solicitors, Carne & Herd, pursuant to r 444 of the UCPR in relation to the plaintiff’s failure to provide her list of documents and statement of loss and damage.  In response to a request for an extension to comply, BDW gave Carne & Herd until 10 April 2002 to obtain experts’ reports that were foreshadowed and to provide a statement of loss and damage.  BDW sent another letter pursuant to r 444 of the UCPR on 12 April 2002 as a result of the termination by the plaintiff of the retainer of Carne & Herd, BDW sent a letter pursuant to r 444 of the UCPR to the plaintiff on 24 April 2002 in relation to her failure to provide them with a list of documents and statement of loss and damage. 

[39] On 8 May 2002 BDW received by facsimile from the plaintiff a handwritten document purporting to be a statement of loss and damage that clearly did not comply with rr 547 and 548 of the UCPR.  On the same date BDW also received from the plaintiff by facsimile a handwritten list of documents containing 19 documents comprising the pleadings, some of the correspondence with BDW and documents described as the plaintiff’s hospital accounts – Mater Private 1999, HIC record 1997-1999, Medibank history 1997-1999, tax returns 1994-1999, tax returns 1999-2001, notice of assessments 1994-2001 and curriculum vita.  The list was clearly not a complete list of the documents in the plaintiff’s possession or control that were directly relevant to the matters in issue. 

[40] On 13 May 2002 BDW received a facsimile from the plaintiff advising that she would be providing them with an up to date list of documents and a statement of loss and damage within 28 days from 10 May 2002.  On 7 June 2002 BDW received a letter from the plaintiff that was similar to that sent to Professor Monsour’s solicitors on the same date and the plaintiff provided BDW with similar medical certificates to that provided to Professor Monsour’s solicitors. 

[41] On 11 July 2002 BDW gave the plaintiff an extension until 31 July 2002 to deliver the list of documents and statement of loss and damage.  On 31 July 2002 the plaintiff provided BDW with the same list of documents that was provided to Professor Monsour’s solicitors.  By letter dated 1 August 2002 BDW requested the plaintiff to provide copies of a number of the documents from her list, including Mr Wallace’s report.  Those copies were not provided.  BDW was then in receipt of similar correspondence from the plaintiff to that sent to Professor Monsour’s solicitors about reasons for the delays affecting the plaintiff’s prosecution of the proceedings.  After the plaintiff’s letter dated 19 September 2002 was received by BDW, BDW had no contact from the plaintiff until her facsimile dated 10 February 2003, despite the fact that that facsimile referred to correspondence sent on 31 January 2003. 

[42] The plaintiff sent BDW a facsimile on 17 March 2003 advising of further ill health and delays that she was encountering in completing her list of documents and statement of loss and damage. 

[43] The plaintiff sent BDW a letter by facsimile on 10 June 2003 which was in identical terms to the one sent to Professor Monsour’s solicitors on the same date.  On 10 June 2003 BDW sent a facsimile to the plaintiff pursuant to r 444 of the UCPR requesting a complete list of documents and a statement of loss and damage.  An employee of BDW was telephoned by the plaintiff on 13 June 2003 and advised that she was in hospital. 

[44] The letter that BDW received by facsimile from the plaintiff on 5 September 2003 was in identical terms to that sent to Professor Monsour’s solicitors on the same date.  There does not appear to have been any further communication between the plaintiff and BDW until BDW sent a letter dated 7 June 2004 to the plaintiff noting that the plaintiff had failed to take a step in the proceedings since 12 April 2002 and advising of their instructions to make an application to strike out the claims for want of prosecution.  The plaintiff immediately informed BDW that her matters were now in the hands of solicitor Mr Wellner and that solicitor confirmed his instructions by letter dated 11 June 2004. 

[45] It was not until 21 December 2004 that BDW received the letter from McNamara & Associates dated 17 December 2004 advising that they were now acting on behalf of the plaintiff.  There were no further communications with BDW from the plaintiff or on her behalf.  By letter dated 18 July 2005 BDW requested the plaintiff to discontinue her proceedings against all of the defendants on whose behalf BDW acted, namely Dr Reilly and Dr Georghiou in the first proceeding, Dr Coyne and Dr Sandstrom in the second proceeding and Dr Georghiou in the third proceeding.  The application to strike out on behalf of want of prosecution on behalf of Dr Reilly and Dr Georghiou in the first proceeding was filed on 19 July 2005.

[46] Corrs Chambers Westgarth (“CCW”) are the solicitors acting on behalf of the third defendant in the first proceeding.  By letter dated 2 May 2002 CCW requested the plaintiff to provide a statement of loss and damage or a list of documents within 28 days.  The plaintiff sent CCW a similar letter to that sent to the other defendants’ solicitors on 7 June 2002 and also provided CCW with the medical certificates and accompanying letters that she dispatched to the other defendants’ solicitors in July 2002.  CCW also received letters from the plaintiff dated 4 and 19 September 2002. 

[47] On 30 October 2002 CCW sent the plaintiff a letter pursuant to r 444 of the UCPR in relation to her failure to deliver a statement of loss and damage and list of documents.  The letter nominated 6 November 2002 as the time for response.  CCW filed an application on 11 November 2002 seeking orders for delivery of the plaintiff’s statement of loss and damage and complete list of documents.  That application was due to be heard on 22 November 2002.  On 18 November 2002 CCW received a draft statement of loss and damage which was incomplete and awaiting the results of inquiries that the plaintiff indicated in her covering letter dated 18 November 2002 that she had made.  The plaintiff consented to the adjournment of the application. 

[48] By letter dated 10 December 2002 CCW advised the plaintiff of the matters in the statement of loss and damage that required clarification.  The plaintiff responded by facsimile on 24 December 2002 advising that the letter dated 10 December 2002 was not received until 16 December 2002 and that the request would be “addressed and met” and that the statement of loss and damage would be provided on 31 January 2003.  On 31 January 2003 the plaintiff sent a facsimile to CCW advising that she was due to be admitted to hospital for surgery on that day and that she would be unable to finalise the documents until 22 February 2003.  On 17 March 2003 the plaintiff sent CCW a letter in identical terms to that sent to the other defendants’ solicitors.  CCW also received a similar letter dated 10 June 2003 from the plaintiff that was sent to the other solicitors.  This was followed by a letter from the plaintiff sent by facsimile on 5 September 2003 that was in identical terms to that sent to the other solicitors.  CCW then received a letter from McNamara & Associates dated 17 December 2004.  By letter dated 22 December 2004 CCW indicated to McNamara & Associates that they would not take steps adverse to the plaintiff’s interest for a period of 30 days from 22 December 2004.  The third defendant’s application to strike out the plaintiff’s claim against the third and fourth defendants was filed on 20 July 2005.                  

History of the second proceeding

[49] Dr Sandstrom as the first defendant and Dr Coyne as the second defendant were served with the claim and statement of claim in the second proceeding on 18 July 2002.  Dr Coyne’s notice of intention to defend was filed on 10 October 2002 and Dr Sandstrom’s notice of intention to defend was filed on 23 December 2002.

[50] The plaintiff’s statement of claim lists every consultation that she had with her general medical practitioner or at the Mater Private Hospital (“Mater”) from 30 August 1997 to August 1999 for infection, pain or illness.  The allegation against Dr Sandstrom is at the time of each of the consultations he had with the plaintiff, he knew or ought to have known of the plaintiff’s history of consultations at the Mater or with her general medical practitioner.  The plaintiff alleges in paragraph 20 of the statement of claim that at each consultation Dr Sandstrom “failed to diagnose that the plaintiff’s VP shunt was infected”.  It is implicit in that allegation that the plaintiff is alleging that at the time of each of those consultations her VP shunt was infected.

[51] The plaintiff alleges that she consulted Dr Sandstrom on 4 specified occasions in 1998 and 5 specified occasions in 1999.  Dr Sandstrom admits that he consulted with the plaintiff on 11 February and 8 April 1998 and 3 February and 19 April 1999.  He denies that he consulted with the plaintiff on the other specified dates alleged by her, but says he consulted with the plaintiff on 20 April, 13 May and 9 August 1999.  Dr Sandstrom denies that he knew or ought to have known of the details of each and every consultation by the plaintiff with her general medical practitioner or at the Mater.  Dr Sandstrom sets out in paragraph 10 of his defence the purpose of each of the consultations he had with the plaintiff between 3 October 1995 and 9 August 1999 and the diagnoses he made and any treatment prescribed on that occasion.  In paragraph 11 of the defence, Dr Sandstrom pleads that at no time during the consultations was there an infection present in the plaintiff’s VP shunt and that, if there was an infection in the plaintiff’s VP shunt at any stage between 19 August 1997 and 9 August 1999, the infection was a minor infection which was not causative of any symptoms and did not require treatment.  Dr Sandstrom pleads that pathology review of cerebral spinal fluid of the plaintiff collected on 28 October 1997 and on 28 September 1999 showed no infection was present. 

[52] The plaintiff consulted Dr Coyne on 21 July 1998 and 19 April and 15 June 1999.  The plaintiff alleges that Dr Coyne knew or ought to have known at the time of each of the consultations of the plaintiff’s history of consultations with her general medical practitioner and at the Mater from 30 August 1997.  To the extent that the allegation made in paragraph 29 of the statement of claim against Dr Coyne that he failed to diagnose that the plaintiff’s VP shunt was infected contains an implied allegation that the plaintiff’s VP shunt was infected, that is denied by Dr Coyne.  Dr Coyne also denies that he knew or ought to have known the details of every consultation by the plaintiff with her general medical practitioner or at the Mater between 30 August 1997 and the time of the consultation with him and sets out in paragraph 12 of his defence the purpose, diagnoses and treatment prescribed in respect of each consultation by the plaintiff with him between 27 August 1996 and 15 June 1999.  Dr Coyne also relies on the fact that the pathology review of the plaintiff’s cerebral spinal fluid collected on 28 October 1997 and 28 September 1999 showed no infection was present.  Dr Coyne pleads that at no stage during the consultations which the plaintiff had with him was there an infection present in her VP shunt, but if there was, Dr Coyne alleges that the infection was a minor infection which was not causative of any symptoms and did not justify neurosurgical intervention.            

[53] The plaintiff advised BDW, the solicitors for Dr Sandstrom and Dr Coyne that she hoped to have completed her statement of loss and damage by 22 February 2003.  That was not done and BDW wrote to the plaintiff on 7 June 2004 noting that she had failed to take a step in the proceedings since 12 April 2002.  BDW’s letter of 18 July 2005 to McNamara & Associates also applied to the second proceeding insofar as it was brought against Dr Sandstrom and Dr Coyne.   The application to strike out the plaintiff’s claim against Dr Sandstrom and Dr Coyne was filed on 19 July 2005.

History of the third proceeding

[54] Dr Georghiou as the defendant was served with the claim and statement of claim in the third proceeding on 25 August 2002.  After obtaining extensions of time from the plaintiff, Dr Georghiou’s notice of intention to defend was filed on 31 January 2003. 

[55] The structure of the statement of claim in the third proceeding is similar to that in the second proceeding.  It also contains the allegation that Dr Georghiou failed to diagnose that the plaintiff’s VP shunt was infected.  Dr Georghiou denies that he knew or ought to have known the details of each and every consultation by the plaintiff with her general medical practitioner or at the Mater from 29 August 1997 until the time of each consultation by the plaintiff with Dr Georghiou.  Dr Georghiou denies that the plaintiff’s VP shunt was infected as alleged or at all or at any time that the plaintiff consulted with him.  

[56] Dr Georghiou also pleads that pathology review of cerebral spinal fluid collected on each of 28 October 1997 and 28 September 1999 showed no infection was present and that when he reviewed the plaintiff on 20 September 1999, he observed no clinical symptoms of infection. 

[57] The plaintiff has not taken any step to pursue her claim in the third proceeding after being served with the defence.

[58] After becoming aware of the application filed by Professor Monsour in the first proceeding, BDW who act on behalf of Dr Georghiou, invited the plaintiff to discontinue her claim against Dr Georghiou in the third proceeding.  The plaintiff did not.  Dr Georghiou’s application to have the plaintiff’s claim in the third proceeding struck out was filed on 19 July 2005. 

Plaintiff’s response to strike-out applications

[59] The submission was made on behalf of the plaintiff that the delays in the proceedings had been caused to a large extent by the inaction of the various solicitors who acted or had been approached by the plaintiff to act and the plaintiff’s ill-health, which was claimed to be due to the matters referred to in the statements of claim and for other medical reasons.  

[60] No affidavit was sworn to by the plaintiff for the purpose of responding to each of the defendant’s applications in these proceedings.  The deponent, Mr Bruce, is an articled clerk in the employ of McNamara & Associates who has exhibited to his affidavit a chronology of events which he swears to having prepared “based on my direct knowledge of the matter and perusal of the file held by McNamara & Associates”.  To the extent that Mr Bruce’s chronology and affidavit sets out matters that are reflected by the course of the proceedings and the correspondence, it is clear that the source of that material is the plaintiff’s solicitors’ file.  There are other matters which are sworn to by Mr Bruce where the source of the information set out in his affidavit is not clear.  An example of this is the statement in paragraph 30 of his affidavit that the plaintiff’s allergic reaction to the osteoporosis drugs on or about 12 July 2003 “caused severe diarrhoea and vomiting for a period of seven (7) weeks” and paragraph 31 of his affidavit:

“31.In or about November 2002, the plaintiff was receiving intensive medical treatment in the form of an iron infusion for approximately seven (7) weeks.”      

[61] On the hearing of these applications the plaintiff did not adduce any medical evidence to support these statements by Mr Bruce or any medical evidence to verify the periods of hospitalisations and medical treatments that were referred to in the various letters sent by the plaintiff to the defendants’ solicitors (apart from the copies of medical certificates attached to correspondence) to explain why the plaintiff was not taking the steps required to pursue the proceedings.

[62] Although the plaintiff’s draft lists of documents had referred to Mr Wallace’s report that was dated 16 July 2001, it was not until a copy was exhibited to Mr Bruce’s affidavit that it was provided to the solicitors for the defendants in the first proceeding, even though a request had been made for a copy of it, at least by Professor Monsour’s solicitors and BDW. 

[63] Mr Wallace recites the material that he was provided for the purpose of his medico/legal report.  It was the statement of claim, pharmacy invoice statements and HIC records.  It does not appear that Mr Wallace was provided with the third defendant’s records or the records of Professor Monsour or Dr Reilly. 

[64] Mr Wallace expressed the following opinion in his report:

“1.In view of the timing of the infections that Maria Mulcahy suffered following the procedures of 19.08.97, it seems likely to me, that her shunt was infected at the time of the procedure at the Holy Spirit Hospital on 19.08.97, and that shunt colonization and infection occurred after that procedure.  It is impossible to be certain that the shunt was infected at that point in time, but I would think it is a better than 50:50 chance that the shunt became colonized with bacteria at that time.  The reason for this belief is that shunt infections are well known to occur at the time of operative intervention at other sites in the body and it is thought that there is bacteraemia at the time of surgical intervention in most operations and that when there is a foreign body, such as a shunt implanted in the patient, this may become colonized by blood-born bacteria, leading to a shunt infection that my (sic) manifest days, weeks, or months later.  For this reason, myself and many other neurosurgeons, although it is by no means a universal practice, adopt the procedure of always giving prophylactic antibiotics at the time of any form of surgical intervention in a patient with a shunt.”    

Mr Wallace suggested in his report that if the plaintiff had “received appropriate prophylactic antibiotic treatment, before, during and after the surgery of 19.08.1997, that her shunt might not have become infected”. 

[65] It is implicit in Mr Wallace’s report that Mr Wallace was proceeding on the basis that the plaintiff had not received the antibiotic treatment that is alleged by the defendants to the first proceeding to have been given in connection with the wisdom teeth surgery.

[66] On the hearing of the application, Mr Stobie of counsel who appeared for the plaintiff stated that there was an issue of fact in the first proceeding as to whether any antibiotic treatment was given to the plaintiff as alleged by the defendants and made the following submission (which was not based on any evidence adduced by the plaintiff):

“There will also be evidence as to what happened immediately before surgery in Ms Mulcahy’s consultation, in particular, with the anaesthetist and conversations, while she was still conscious, with Dr Monsour.  So, there is obviously evidence available to the – well, the plaintiff’s own evidence in that regard which will have a bearing on that and will be very important to the resolution of that factual dispute.” 

[67] There was some debate during the hearing of the applications as to whether the plaintiff’s amended statement of claim in the first proceeding raised the allegation that no prophylactic antibiotics were given before or during the wisdom teeth surgery.  The allegation in paragraph 6 of the amended statement of claim in the first proceeding that the plaintiff “was not given proper prophylactic antibiotic dosages before, during and after surgery” covers both an allegation that no dosages were given and an allegation that the dosages which were given were not proper.  Professor Monsour was the only defendant in the first proceeding who requested particulars of this allegation in respect of what the plaintiff alleged she was given and she should have been given.  Although the plaintiff in her particulars did not identify the type of antibiotic she was given, she did particularise that she “was given one intramuscular injection of a substance on the 20th August 1997” which was the day after the surgery.  Those particulars impliedly suggest that the plaintiff was asserting that no antibiotics were given before or during surgery. 

[68] The submissions made on behalf of the plaintiff therefore highlighted that the first proceeding would not be limited to determining the appropriateness of the surgery and the treatment in the manner in which the defendants claim the same was performed and given, but there would be a factual issue as to what antibiotics were administered to the plaintiff before, during and after the surgery. 

[69] In respect of the delays of the solicitors retained or approached by the plaintiff, the plaintiff failed to put any material before the court that dealt with what she did to pursue the solicitors and what she was told by the various solicitors.  In particular, in paragraph 32 of Mr Bruce’s affidavit, reference is made to the plaintiff’s file being delivered to Mr Wellner in February 2004 and that he had the file for approximately 6 months, but failed to take any steps to progress the matter.   Apart from the occasion when the plaintiff was advised that Mr Wellner could not act on her behalf, there is no material as to what the plaintiff did during that period of 6 months to follow up Mr Wellner whilst he had her file.  A submission was made that the plaintiff was seeking a solicitor who would act for her on a speculative basis because she was impecunious.  No evidence showing the plaintiff’s impecuniosity was adduced by her.

[70] The submissions made on behalf of the plaintiff frankly (and appropriately) conceded that the first proceeding had been characterised by long periods of delay and these delays were not attributable to any of the defendants.  Mr Stobie also acknowledged that the plaintiff had failed to adduce any medical evidence relating to her prospects of success in the second and third proceedings. 

[71] The plaintiff did not endeavour to verify assertions made by her in the various letters sent to the defendants’ solicitors or to explain discrepancies that were apparent on the material.  By way of example, the draft statement of loss and damage sent to CCW contained a statement that “Documents are being obtained from accountants and ATO” for the purpose of disclosing documents concerning the tax paid by the plaintiff and the taxable income of the plaintiff.  The letter which accompanied that draft statement of loss and damage informed CCW:

“I have contacted all relevant organisations from where I need this information as noted in the SofL&D and anticipate they will take about 2 weeks at this time of year to provide it at which time I will amend the statement.”

The suggests that the plaintiff had already contacted the Australian Taxation Office for the relevant documents as at 18 November 2002.  That is difficult to reconcile with the letter sent by McNamara & Associates on 9 February 2005 to the Australian Taxation Office seeking copies of the plaintiff’s group certificates, income tax returns and notices of assessment from 1993 onwards.

Approach to strike out applications

[72] It was common ground on the hearing of these applications that a non-exhaustive list of factors relevant to determining whether it is in the interests of justice that a proceeding be dismissed for want to prosecution is found in the judgment of Atkinson J (with whom the other members of the Court of Appeal agreed) in Tyler v Custom Credit Corporation Ltd [2000] QCA 178.  The parties’ submissions addressed those factors that were relevant to these proceedings.

[73] The first proceeding concerned surgery that was performed almost 8 years before the strike-out applications were heard.  The first proceeding was commenced on the day before the limitation period expired and the claim and statement of claim were served on each of the defendants in the days before the claim became stale (without renewal) under r 24(1) of the UCPR. 

[74] On the issue of prospects in respect of the first proceeding, none of the parties exhibited relevant medical and hospital records.  The report obtained by the first defendant from Dr Muir which was prepared by reference to some records is favourable to the first defendant.  The lack of material provided to Mr Wallace suggests that his report will be of little assistance in determining liability in its present state.  To the extent that there is an issue as to what antibiotics were actually given to the plaintiff, the records of Professor Monsour, Dr Reilly and the third defendant will be relevant, as will be any recollections of Professor Monsour, Dr Reilly, nursing staff who received any instructions concerning the administration of antibiotics at material times and the plaintiff, to the extent that she was privy to relevant conversations concerning the administration of antibiotics or made relevant observations.  Prospects of success are therefore a matter of speculation on the state of the material adduced in respect of the strike-out applications, but it can fairly be concluded from the material that has been adduced that the plaintiff cannot be treated as having strong prospects of success in the first proceeding. 

[75] The plaintiff has not disobeyed court orders or directions, as such, but has failed consistently to comply with the timetable for taking various steps set down by the UCPR and the successive timetables proposed by her.  Of particular significance is her failure to provide particulars that were requested of her by Professor Monsour, until an application was brought by him, her subsequent delivery of inadequate particulars, and her failure to provide a statement of loss and damage and list of documents to Professor Monsour that complied with the UCPR.  It is also of significance that from 27 November 2001 until June 2003 BDW on behalf of Dr Reilly and Dr Georghiou repeatedly requested the plaintiff to comply with the UCPR and serve a statement of loss and damage and list of documents and complete disclosure, without compliance being achieved.  It is also of significance that the third defendant had been seeking the plaintiff’s statement of loss and damage from 2 May 2002 and did not receive a draft until after bringing an application.  The last step taken in the first proceeding was the filing of the amended defence by the third defendant on 3 June 2003.  The plaintiff took no steps whatsoever after that.  The most recent action of the plaintiff in the first proceeding that approximated a step in the proceeding was the provision of the draft statement of loss and damage to the third defendant on 18 November 2002. 

[76] The first proceeding has been characterised by gross delays on the part of the plaintiff which are solely attributable to the plaintiff.  The plaintiff would consistently write letters to the respective solicitors for the defendants giving an indication when a particular step in the proceeding would be completed by her and in most instances did not achieve what she promised to do.  The plaintiff as a barrister is not in the position of a litigant unskilled in the law who is totally reliant on her lawyer for the conduct of the litigation.  During the period November 2002 until December 2004 when no action was taken on the part of the plaintiff to prosecute her claims in a constructive way, the plaintiff was acting on her own behalf and can be taken to be aware of the obligation imposed on her by the UCPR to proceed with her claims in an expeditious way.  Any weight which could be given to the explanations put forward on behalf of the plaintiff for the delays is significantly reduced, when the plaintiff has failed to provide supporting evidence or other verification of those explanations. 

[77] The factor which favours the plaintiff is that the litigation between the plaintiff and the defendants to the first proceeding would be concluded by the dismissal of the first proceeding, as the limitation period has been expired for some 5 years. 

[78] Although the defendants to the first proceeding have filed defences and made disclosure, the plaintiff has not filed a reply, made disclosure in compliance with the UCPR or served a statement of loss and damage. 

[79] There is a real issue of prejudice to the defendants, if the first proceeding went to trial, in that it was made clear in submissions made on behalf of the plaintiff on the strike-out applications (when it was not so clear on the pleadings and in the absence of any reply being filed to the defences) that the plaintiff disputes that she was given the antibiotics that the respective defendants plead she was given before and after surgery.  Although credit of witnesses was always in issue to the extent that there was an issue about what advice the plaintiff was given by the various defendants in connection with the proposed surgery, the defendants have not had the same notice about meeting the case that was foreshadowed in a way that the plaintiff had not done previously on the hearing of the strike-out applications in respect of the antibiotics which the defendants say she was given.  In addition, there is the inevitable dimming of memories with time, even when it is not recognised by the parties:  Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551. 

[80] The court’s inherent jurisdiction to strike-out for want of prosecution has been incorporated into r 280 of the UCPR.  In weighing up the various factors in the circumstances of the first proceeding in order to decide whether the discretion to dismiss the proceeding for want of prosecution should be exercised, it is overwhelming that the defendants in the first proceeding have shown that the interests of justice require the plaintiff’s claims against them to be dismissed for want of prosecution.  To avoid further costs, it is also appropriate to make the order requested by the third defendant permitting an abridgement of the time for hearing its strike-out application.

[81] The second and third proceedings proceed on the basis that the plaintiff’s VP shunt was infected from August 1997 until it was removed in September 1999.  The plaintiff has put forward no medical evidence to support her allegations of infection.  Both proceedings relate to events that took place up to August or September 1999 which was almost 6 years prior to the hearing of the strike-out applications.  The problem for the plaintiff is that after serving the statement of claim she has not taken any step whatsoever in either the second or the third proceedings.  The same affidavit of Mr Bruce that the plaintiff relied on to oppose the applications made in the first proceeding was relied on by the plaintiff in the second and third proceedings.  The same deficiencies about the lack of verification of the plaintiff’s explanations and claims are equally applicable to the second and third proceedings.  The factor that favours the plaintiff is that dismissal of the second and third proceedings would conclude the litigation because of the expiry of limitation periods.  In the circumstances it is also overwhelming that Dr Sandstrom and Dr Coyne in the second proceeding and Dr Georghiou in the third proceeding have shown that the interests of justice require that the plaintiff’s claims against them should be dismissed pursuant to r 280 of the UCPR.   

Orders

[82] It follows that the following orders should be made:

BS7218 of 2000

1.Time for service of the third and fourth defendants’ application filed on 20 July 2005 is abridged.

2.Proceeding BS7218 of 2000 is dismissed for want of prosecutions.

3.The plaintiff must pay the costs of the first defendant of the proceeding (including the application filed on 4 July 2005) to be assessed.

4.The plaintiff must pay the costs of the second and fifth defendants of the proceeding (including the application filed on 19 July 2005) to be assessed.

5.The plaintiff must pay the costs of the third and fourth defendants of the proceeding (including the application filed on 20 July 2005) to be assessed.

BS6583 of 2001

1.Proceeding BS6583 of 2001 as against the first and second defendants is dismissed for want of prosecution.

2.The plaintiff must pay the costs of the first and second defendants of a proceeding (including the application filed on 19 July 2005) to be assessed.

BS7371 of 2001

1.Proceeding BS7371 of 2001 is dismissed for want of prosecution.

2.The plaintiff must pay the costs of the defendant of the proceeding (including the application filed on 19 July  2005) to be assessed.