Bennett v Australian Capital Territory (No 2)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Bennett v Australian Capital Territory (No 2)

Citation:

[2018] ACTSC 245

Hearing Date:

23 August 2018

DecisionDate:

24 August 2018

Before:

Mossop J

Decision:

See [36]

Catchwords:

TORTS – NEGLIGENCE – Medical negligence – interlocutory application – request for further and better particulars – further particulars previously requested and provided – defence to pleadings filed by defendants – limited further particulars ordered

Cases Cited:

Bennett v Australian Capital Territory [2016] ACTSC 258

Parties:

Mackenzie Bennett bhnf Ian Bennett (Plaintiff)

Australian Capital Territory (First Defendant)

George Malecky (Second Defendant)

Michael Rosier (Third Defendant)

Representation:

Counsel

D Hirsch (Plaintiff)

N Oram (First and Second Defendant)

C Plevey (Third Defendant)

Solicitors

Chamberlains Law Firm (Plaintiff)

ACT Government Solicitor (First and Second Defendant)

MinterEllison (Third Defendant)

File Number:

SC 117 of 2013

MOSSOP J:

Introduction

1. Contests over the provision of further and better particulars are a sport the popularity of which amongst the judiciary has substantially declined in recent years.  The necessity for further particularisation is often a product of inadequate compliance with the requirements of pleading and particularisation in the rules.  However, in many cases, lawyers for parties pointlessly create further disputes by making requests for particulars which are framed without reference to their proper and limited scope or by answering request for particulars in an unnecessarily obscure or argumentative manner.  It is an area where good judgment must be exercised and a focus maintained upon the duty of the parties and their lawyers to properly advance the preparation of the case.  It is a fertile area for judicial criticism of the competence and approach of representatives of the parties.  As a consequence, disputes over particulars are perceived as multiplying unproductive areas of disputation and increasing costs rather than having the attention of the parties properly focused upon resolving proceedings as “quickly, inexpensively and efficiently as possible”. 

1. The present proceedings are medical negligence proceedings brought by a young disabled plaintiff against the Australian Capital Territory and two doctors.  The first defendant is the Australian Capital Territory that operated The Canberra Hospital (TCH) and employed speech pathologists and dietitians.  The second defendant, Dr George Malecky, practised as a paediatric surgeon.  The third defendant, Dr Michael Rosier, practised as a paediatrician.  The plaintiff’s claims relate to two periods: first, the week after her birth in April 2007; and second, the period after July, September or August 2007 in the course of treatment by or consultation with the first, second and third defendants respectively.

1. The proceedings have been on foot for a considerable period of time.  They were commenced in 2013.  In 2016, I made orders joining the second and third defendants in the proceedings and gave leave to the plaintiff to file an Amended Statement of Claim: Bennett v Australian Capital Territory [2016] ACTSC 258. Defences to the amended claim were filed by the first and second defendants in March 2017. A Further Amended Statement of Claim regularising some matters was filed on 16…