Bennett v Australian Capital Territory - [2016] ACTSC 258

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Bennett v Australian Capital Territory
Citation:	[2016] ACTSC 258
Hearing Date:	5 August 2016
DecisionDate:	8 September 2016
Before:	Mossop AsJ
Decision:	See [117]
Catchwords:	LIMITATION PERIOD – Limitation Act 1985 (ACT), s 30B – Application to amend originating claim and statement of claim – Whether new cause of action statute barred – Meaning of “injury”, “accident”, “disease or disorder” – Where it is unclear whether a limitation period has expired following the commencement of proceedings – Court will first decide whether amendment could be permitted under r 503(4) Court Procedure Rules 2006 (ACT) – If not permitted under r 503(4), Court may decide it is nevertheless appropriate to grant leave to make the amendment, but for amendment to only take effect from the date of the application to grant leave. PRACTICE AND PROCEDURE – Application to amend originating claim and statement of claim – Addition of claim of brain damage arising from pleaded negligence - Whether new cause of action PRACTICE AND PROCEDURE – Application to amend originating claim and statement of claim – New cause of action relating to feeding difficulties during period after previously pleaded negligence - Whether new cause of arises out of substantially the same facts as the original statement of claim – Where temporal disconnect between allegations pleaded and allegations sought to be made – Where evidentiary facts that would need to be covered as part of the existing claim would extend to those facts from which new cause of action can be said to arise – Management of the plaintiff’s feeding problems arise out of substantially the same facts. PRACTICE AND PROCEDURE – Application to join treating doctors as second and third defendants – Not possible to find that existence of a limitation defence would render the joinder futile – Leave granted.
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) Court Procedures Rules 2006 (ACT), rr 52, 53, 242, 502, 503, 514 Limitation Act 1985 (ACT), ss 30B, 33, 36, Dictionary
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Brickfield Properties Ltd v Newton [1971] 3 All ER 328 Dornan v JW Ellis & Co Ltd [1962] 1 QB 583 Golski v Kirk [1987] FCA 200; (1987) 14 FCR 143 Kenjar v Australian Capital Territory [2014] ACTSC 69 Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 Meredith v Commonwealth [2009] ACTSC 168 Morgan v Banning (1999) 20 WAR 474 Naidu v Fergusson [2013] ACTSC 208; (2013) 8 ACTLR 150 Opbroek bhnf Crittall v Australian Capital Territory [2016] ACTSC 64; (2016) 11 ACTLR 171
Parties:	Mackenzie Bennett bhnf Ian Bennett (Plaintiff) Australian Capital Territory (Defendant) George Malecky (Proposed Second Defendant) Michael Rosier (Proposed Third Defendant)
Representation:	Counsel Mr D Hirsch (Plaintiff) Ms L Donohoe SC with Mr W B Buckland (Defendant) Mr J Sheller (Proposed second and third defendants)
Solicitors Canberra Legal Group…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] ACTSC 258
Decision Date: 8 September 2016

CaseChat Overview and Summary

Bennett, the plaintiff, filed an application against the Australian Capital Territory, the defendant, in the Federal Circuit Court. The case revolves around the plaintiff's claim for damages arising from alleged negligence by the defendant. The plaintiff sought to amend their originating claim and statement of claim to include a claim for brain damage resulting from the pleaded negligence, as well as new claims for feeding difficulties that arose after the original negligence. The defendant raised concerns that the limitation period might have expired for the new claims, invoking the Limitation Act 1985 (ACT), section 30B.

The court was tasked with determining whether the plaintiff's proposed amendments were permissible under rule 503(4) of the Court Procedure Rules 2006 (ACT). The court had to decide if the new cause of action could be considered an extension of the original facts or if it constituted a separate claim. The court also needed to assess whether the management of the plaintiff's feeding problems was part of the same factual matrix as the initial negligence claim. Furthermore, the court had to consider whether the joinder of treating doctors as second and third defendants would be futile due to the limitation defence.

The court ruled that the amendment to include the claim for brain damage was not permissible under rule 503(4) as it did not arise out of the same facts as the original claim. However, the court found that the management of the plaintiff's feeding problems was part of the same factual matrix. Consequently, the court allowed the amendment but stipulated that it would only take effect from the date of the application to grant leave. The court also granted leave to join the treating doctors as second and third defendants, finding that the limitation defence did not render the joinder futile.

The court ordered that the amendment to include the claim for brain damage be denied, but the amendment relating to the feeding difficulties be allowed to take effect from the date of the application. Additionally, the court granted leave to join the treating doctors as second and third defendants.

Orders

Orders of the court

See [117]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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