Barns v Cunningham

[2023] ACTSC 180

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Barns v Cunningham

Citation: 

[2023] ACTSC 180

Hearing Date: 

14 July 2023

Decision Date: 

14 July 2023

Before:

McCallum CJ

Decision: 

The first defendant’s application in proceeding dated 22 June 2023 is refused with costs, save for the paragraphs that plead a cause of action against Dr Egan based on events that occurred on a date other than 6 October 2017.

Catchwords: 

CIVIL PROCEDURE – INTERLOCUTORY APPLICATION – Application for leave to file a notice of indemnity and contribution – where the notice if allowed would expand the liability of a deceased defendant – where the application reagitates earlier findings and resiles from previous positions – actual prejudice

Legislation Cited: 

Court Procedures Act 2004 (ACT) s 5A

Cases Cited: 

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541

Parties: 

Jessica Lea Barns ( Plaintiff)

Dr Emma Cunningham ( First Defendant)

Dr Elizabeth Joy Golez (Second Defendant)

Anne Egan as Executrix of the Estate of the Late Andrew Egan ( Third Defendant)

Representation: 

Counsel

D Campbell SC with A Muller (Plaintiff)

D Crowe (First Defendant)

M Walsh SC (Third Defendant)

Solicitors

Elringtons Lawyers (Plaintiff)

HWL Ebsworth Lawyers (First Defendant)

Norton Rose Fulbright Australia (Third Defendant)

File Number:

SC 358 of 2020

McCALLUM CJ:       

1․Before the Court is an application in proceeding for leave to file out of time a notice claiming contribution or indemnity. 

2․The proceedings are medical negligence proceedings arising out of the treatment of the plaintiff during her pregnancy and in particular the management of her developing gestational hypertension. 

3․On 13 October 2017, the plaintiff developed severe symptoms of pre-eclampsia resulting in her being admitted to hospital and suffering from a stroke during either the process of admission or else the delivery of the child by caesarean section.  She has suffered ongoing injuries and disabilities as a result of those events.

4․The plaintiff has active claims against the first defendant, Dr Cunningham, a general practitioner, and the third defendant, the estate of Dr Egan, who was a medical practitioner with specialisation in obstetrics and gynaecology.  Dr Egan died on 28 February 2021. 

5․The proceedings as against the second defendant have resolved. 

6․The allegations against Dr Cunningham in the further amended statement of claim include allegations about her management of the plaintiff on dates earlier than 11 October 2017, the Friday before the plaintiff’s admission to hospital. 

7․However, as against Dr Egan’s estate, the only allegations on the pleadings are in relation to the events of 11 October 2017, a day on which he and Dr Cunningham spoke for a second time.  Their earlier conversation on 6 October 2017, although part of the claim against Dr Cunningham, has never been part of the pleading in negligence on the part of Dr Egan.  An attempt by the plaintiff to add a new cause of action against him in respect of that earlier conversation failed earlier this year. 

8․That application was determined by Crowe AJ on 15 February 2023.  His Honour allowed other amendments at that time but held in relation to proposed new paragraph 56 of the proposed further amended statement of facts that it was not appropriate for that amendment to be allowed “in the particular circumstances of the case where Dr Egan is deceased and unfortunately also the experienced general practitioner who had been retained by the third defendant in relation to the issues raised against Dr Egan is also deceased”.  His Honour continued:

It seems to me that there is a very significant potential for actual prejudice to be suffered by Dr Egan’s estate in attempting to deal with what is, in my view, probably a new cause of action sought to be raised.

9․Crowe AJ referred to the fact that the allegations against Dr Egan had, until that point, been confined to the allegations concerning the events of 11 October and that, although the events of 6 and 11 October may be related or connected, the allegations of negligence based on the earlier conversation were new. 

10․Dr Cunningham opposed the plaintiff’s application. 

11․In due course, the amendments allowed by Crowe AJ were engrossed in a filed amended pleading and the defendants filed their defences. Dr Cunningham did not, however, file the notice seeking contribution and indemnity within the time allowed under rule 320 of the Court Procedures Rules 2006.

12․Dr Cunningham now seeks leave to file that application out of time. 

13․The application is supported by an affidavit affirmed by the solicitor on the record, Mr Hearne, who simply explains that following the receipt of the joint report of the experts after they participated in a conclave it was decided to bring the application.  Any expectation based on that rather glib explanation of the late decision that the experts may in their joint report have thrown Dr Egan under the bus, as it were, would not be satisfied upon a reading of that report. 

14․A further explanation was given from the bar table that following the expert conclave, Dr Cunningham apprehended a “shifting in the sands in favour of Dr Egan” and that she wanted to shore up her position. 

15․Dr Cunningham submitted, in support of the change in position, that further events have occurred since Crowe AJ’s decision to reject the plaintiff’s amendment application.  She further submitted that the evidence relied upon on behalf of Dr Egan in opposing the present application does not demonstrate actual prejudice if the contribution notice were allowed to be filed at this time.  Dr Cunningham further submitted that Dr Egan’s estate bears an evidential onus to satisfy the Court on that issue.

16․The authority cited for that proposition was the decision of the High Court in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541. I am not persuaded that that decision stands for the proposition for which it was cited. It was acknowledged on behalf of Dr Cunningham that Brisbane South Regional Health Authority was a case concerning an application to extend a limitation period.  Of course, different considerations apply here, where the Court is asked to exercise a discretion to extend a time period allowed under the rules of court.

17․Leaving that issue aside, the High Court in Brisbane South Regional Health Authority did not suggest that the respondent to an application for the indulgence of an extension of time must satisfy even an evidential onus of proof of actual damage.  The highest a proposition of that kind was put was in the dissenting judgment of Kirby J, where his Honour listed considerations relevant to the exercise of the residual discretion to refuse an application for an extension of time.  The fourth consideration listed by his Honour was this:

It is always open to a proposed defendant, resisting an application for extension of time, to call evidence of any specific detriment it would suffer if an order were made. The appellant did so in the present case. If any such evidence is called, a court must consider it carefully in exercising its residual discretion. If a defendant does not call evidence, or calls evidence which is unpersuasive or insignificant, provided it is reasonable to infer that some evidence was available to it in the circumstances the defendant cannot complain if the court concludes that no particular prejudice, over and beyond the generalities, could have been established by it. This is simply another way of saying that, because a prospective defendant has an interest in keeping the limitation bar in place and in resisting an extension that lifts it, it may be inferred that he or she would ordinarily place before a court evidence of specific prejudice pertinent to the exercise of the court's discretion. If the prospective defendant does not do so, he or she cannot justly complain if the court infers, and then holds, that the defendant has failed to demonstrate such prejudice. This is not to shift the burden in the application from the applicant to the defendant. It is simply to recognise that the burden of persuading a court on the particular issue of specific prejudice lies on the party making any such suggestion. This is what is meant by the “evidentiary onus” resting on a proposed defendant in relation to such an issue. The Court of Appeal held, and the appellant accepted, that it bore such an “evidentiary onus”.

18․I am not persuaded that those remarks apply here. 

19․In any event, the prejudice is palpable in the present case.  Dr Cunningham relied on the fact that, by letter dated 14 April 2021, Dr Egan’s solicitors instructed an expert qualified for the purpose of the proceedings, Dr Henschke.  The contents of the letter reveal that the solicitors must have held instructions from Dr Egan (taken before he died) about the telephone conversation between him and Dr Cunningham on 6 October 2017.  In particular, paragraphs 4.8 and 4.9 of the letter (exhibit A on the application) state:

4.8On 6 October 2017 (Friday), Dr Egan was the on-call obstetric VMO at Cooma Hospital.  He received a telephone call from Dr Cunningham in relation to the plaintiff’s presentation.  We are instructed that Dr Egan was advised by Dr Cunningham that the plaintiff was 31 weeks pregnant, her blood pressure was elevated but settled into the normal range when repeated with rest; and the plaintiff was otherwise symptomless and felt well.

4.9We are instructed that Dr Cunningham sought Dr Egan’s advice as to whether he thought the plaintiff could wait until Monday, 9 October 2017 to have a blood test, because if not, the plaintiff would need to travel to Cooma to have the blood test.  Dr Egan discussed with Dr Cunningham that given the plaintiff’s clinical presentation it would be ok for the blood tests to be performed on the Monday.

20․In my assessment, those instructions address a very narrow part of the instructions that would be required in order to meet the new claim propounded in the proposed notice claiming contribution and indemnity. 

21․Separately, at the time those instructions were taken, there was no cause of action against Dr Egan in respect of the events of 6 October.  It may be expected that that would have coloured the thoroughness of the instructions taken.  The claim now foreshadowed in the proposed notice covers a broader period.

22․Finally, even assuming instructions were taken about 6 October 2017 from Dr Egan before he died, that does not address the plain prejudice of his being unavailable to give instructions to respond as issues evolve in the proceedings and during the trial. 

23․On behalf of the Dr Egan’s estate, counsel identified a number of factors militating against the grant of leave. 

24․Firstly, it was noted that the application “seeks to reagitate the factual matters” which informed the plaintiff’s ill-fated amendment application determined by Crowe AJ.  I accept that that is a factor militating against the grant of leave. 

25․Separately, counsel for Dr Egan noted that the application involved Dr Cunningham seeking to resile from her position taken on the amendment application.  That also is a factor relevant in the present application.  I accept, as submitted on Dr Egan’s behalf, that Dr Cunningham must be taken to have made a deliberate forensic choice in opposing that application.   

26․While I do not suggest that this characterises the conduct of the first defendant in the present case, it has been observed in appellate authority that litigation is not a game. It is necessary for the parties, in order to comply with their obligations under the case management principles and in particular s 5A of the Court Procedures Act 2004 (ACT), to make early forensic decisions which they are prepared to live with for the duration of the proceedings if they are to assist the Court in advancing the overriding purpose of determining the real issues in dispute in a matter that is just, quick and cheap (to adopt the language of the New South Wales legislation).

27․Finally, reliance was placed on the findings of actual prejudice by Crowe AJ which it was said were abiding issues for the third defendant in the present application. 

28․The submissions put on behalf of the third defendant have persuaded me that it is not appropriate to grant the extension of time sought.

29․Accordingly, the application is refused with costs, save for the paragraphs that plead a cause of action against Dr Egan based on events that occurred on a date other than 6 October 2017. 

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date:  11 August 2023