Cai v The Commonwealth
[2024] VSCA 200
•12 September 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2024 0077 |
| DONG TONG CAI & ANOR (ACCORDING TO THE ATTACHED SCHEDULE) | Applicants |
| v | |
| COMMONWEALTH OF AUSTRALIA & ORS (ACCORDING TO THE ATTACHED SCHEDULE) | Respondents |
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| JUDGES: | Walker JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 12 September 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 200 |
| JUDGMENT APPEALED FROM: | Cai v Commonwealth (Ruling, Supreme Court of Victoria, Watson J, 27 June 2024) |
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PRACTICE AND PROCEDURE – Whether judge’s order amending names of defendants correct – Application totally without merit – Application for leave to appeal refused.
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| Counsel | ||
| Applicants: | In person | |
| First Respondent: | Not applicable | |
| Second and Third Respondents: | Ms K Liu | |
| Fourth Respondent: | Ms R Singleton | |
Solicitors | ||
| Applicants: | Not applicable | |
| First Respondent: | Not applicable | |
| Second and Third Respondents: | MinterEllison | |
| Fourth Respondent: | Lander & Rogers | |
WALKER JA:
The applicants, Dong Tong Cai and Yanzhu Chen, brought proceedings against the Commonwealth of Australia and three other parties concerning the treatment of Ms Cai by several hospitals in Australia. Ms Cai is Ms Chen’s mother. Both the applicants were born in China and later migrated to Australia, but Ms Chen has since returned to China, where she resides. Ms Cai claims to bring the proceedings on her own behalf and on behalf of Ms Chen.
The defendants identified in the writ and statement of claim[1] were (in addition to the Commonwealth) the Princess Alexandra Hospital, the Prince Charles Hospital and the Alfred Hospital (the first two of which are located in Queensland, and the third of which is located in Victoria). The statement of claim pleaded that each of them ‘was and is a public hospital capable of being sued’.
[1]Ms Cai filed an amended statement of claim on 9 September 2024, which was included in the application book. However, it was filed after the judgment the subject of the present application for leave to appeal and in any event is of no relevance to the issues raised in the application.
The defendants sought to have the statement of claim struck out pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’) or, in the alternative, dismissed pursuant to ss 62 and 63 of the Civil Procedure Act 2010. In a carefully considered decision, Barrett AsJ held that the statement of claim had significant shortcomings and that to permit the proceeding to continue with that statement of claim would cause undue difficulty, confusion and was very likely to cause unnecessary delay and cost. His Honour declined to dismiss the proceeding. Rather, he struck out the statement of claim, giving Ms Cai and Ms Chen an opportunity to replead.[2] There has been no challenge to that order.
[2]Cai v Commonwealth (Supreme Court of Victoria, Barrett AsJ, 10 May 2024).
In addition, the second, third and fourth defendants below (the hospitals) submitted that they had been incorrectly identified in the writ. Thus:
(a)the fourth defendant submitted that it ought be identified as Alfred Health, rather than Alfred Hospital;
(b)the second defendant submitted that it ought be identified as Metro South Hospital and Health Service, rather than Princess Alexandra Hospital; and
(c)the third defendant submitted that it ought be identified as Metro North Hospital and Health Service, rather than Prince Charles Hospital.
Barrett As J accepted that submission and made orders amending the names of the second, third and fourth defendants (‘the name amendment orders’).
Ms Cai and Ms Chen then appealed the name amendment orders. Watson J dismissed that appeal. His Honour held as follows:
[I]t is evident from the provisions of the Hospitals and Health Boards Act 2011 (Qld) ss 7, 17 and 18 together with the provisions of the Hospital and Health Boards Regulation 2023 (Qld) regulation 4 and schedule 1, that in each instance, a misdescription of the second and third defendants was corrected by the orders that were made by Associate Justice Barrett on 4 June 2024.
In similar vein, I am satisfied that the provisions of ss 3, 65P and schedule 5 of the Health Services Act 1988 (Vic) make plain that a misdescription in the name of the fourth defendant was corrected by the order of Associate Justice Barrett on 4 June 2024.
There being no error in any of those orders, I would dismiss the appeal in relation to those orders ….[3]
[3]Cai v Commonwealth (Ruling, Supreme Court of Victoria, Watson J, 27 June 2024); orders were made the same day. For completeness, I note that Watson J made further procedural orders on 13 August 2024, which were part of the application book. One of those orders permitted the applicants to use their preferred descriptions of the defendants when filing any amended statement of claim, pending the outcome of this application.
Ms Cai and Ms Chen now seek leave to appeal Watson J’s dismissal of their appeal in relation to the name amendment orders.[4] The grounds of appeal set out in the application for leave to appeal are as follows:
1, to change the second, third and fourth defendants’ names to ‘Metro South Hospital and Health Service’, ‘Metro North Hospital and Health Service’ and Alfred Health’ is incorrect because they are administrative departments.
2, The judge Watson told me that the 3 hospitals’ administrative departments can be sued. I told him that they can be sued but not for medical negligence claims.
3, Pursuant to sec 11 general principles of causation of Civil Liability ACT 2003 and sec 51 general principles of Causation of wrongs ACT 1958. The 3 administrative departments didn’t provide me medical care. I can’t sue them because they have no causal relationship with me.
[4]The first respondent filed a notice of intention not to respond to the application for leave to appeal.
On 10 September 2024 the Registrar of the Court of Appeal referred the application for leave to appeal to me to determine pursuant to r 64.15 of the Rules. Having considered the materials filed by the parties,[5] I have determined, pursuant to s 14D(3) of the Supreme Court Act 1986 and r 64.15(5)(iv) of the Rules, that the application for leave to appeal is totally without merit. The application must thus be refused. My reasons are set out below.
[5]Having regard to r 64.15(2), I did not consider that an oral hearing was necessary or desirable; thus I did not direct that there be an oral hearing.
The applicants’ written submissions
The applicants filed written submissions in support of their application for leave to appeal, which were as follows:
1, The 3 hospitals’ names can’t be changed to ‘Metro South Hospital and Health Service’ ‘ Metro North Hospital and Health Service’ and ‘ Alfred Health’. The judge [Watson] said that from the provisions of the Hospitals and Health Boards ACT 2011 (Qld) ss 18 and ss 3, 65P of the Health Services ACT 1988(VIC) etc, so the ‘Metro South Hospital and Health Service’, ‘Metro North Hospital and Health Service’ and Alfred Health’ can be sued. But pursuant to the sec 11 General principles of Causation of Civil Liability ACT 2003 and sec 51 General principles of Causation of Wrongs ACT 1958, the ‘Metro South Hospital and Health Service’, ‘Metro North Hospital and Health Service’ and ‘Alfred Health’ cannot be sued because they don’t provide medical care to patients. They have no causal relationship with me.
2, Because I have been suffering a physical injury and psychological harm due to the negligent treatment and misdiagnosis from the second, third and fourth defendants. They are the medical providers. Pursuant to the sec 9 General principles of Division 1 of Part 1, Breach of Duty of Civil Liability ACT 2003 and sec 48 general principles of Division 2-Duty of care of Part X-Negligence of Wrongs ACT 1958 VIC, the 3 hospitals’ names are the [sentence remained unfinished]
3, the support information from ‘ABN lookup’ and ‘Maurice Blackburn Lawyers’ is in the pages 7-10 of [sentence remained unfinished]
4, I believe the judge made this wrong decision because he treated me unfairly. On 20 June 2024, I received an email from Major Torts List that my hearing of appeal will before the judge Keogh. On 24 June 2024, I received an email from Civil Trial Listings that my hearing of appeal will before the judge Watson. The next day, I received an email from associate of Watson that my hearing of appeal changed to trial but the first, second and third defendants haven’t filled the defence. He was Kidding me.
The relationship of the submissions to the grounds of appeal is somewhat unclear, but it appears that the applicants contend that Watson J (and Barrett AsJ) were incorrect to conclude that the hospitals, as named in the statement of claim, could not be sued; and incorrect to conclude that the entities identified in the orders could be sued by the applicants for negligence. The basis for the latter submission appears to be that the entities identified in the orders do not provide medical care to patients; rather, they are ‘administrative bodies’.
Consideration
The applicants’ submissions are entirely misguided. They stem, it seems, from a failure to appreciate the necessity to identify a legal person who is capable of being sued in order to bring a proceeding. Ms Cai no doubt genuinely believes that the hospitals at which she sought treatment are the proper entities against which she and Ms Chen should bring their proceeding. But, as a matter of law, the hospitals themselves are not legal entities. Rather, the entities identified in the name amendment orders are the legal persons that are responsible for the conduct of the hospitals. This is apparent from the legislation applicable in Queensland and Victoria.
The Queensland hospitals
In Queensland, s 7 of the Hospitals and Health Boards Act 2011 (Qld) provides that ‘Hospital and Health Services’ are statutory bodies and are the principal providers of public sector health services in Queensland.[6] Section 17 provides that a regulation may declare that a part of the State or a public sector hospital is a ‘health service area’, establish a Hospital and Health Service for the area, and assign a name to such a service. Pursuant to s 18, a Hospital and Health Service is a body corporate and is capable of being sued.
[6]Hospital and Health Boards Act 2011 (Qld) s 7(1) (the ‘Queensland Act’).
The effect of reg 4 of the Hospital and Health Boards Regulation 2023 (Qld) was to continue the ‘Metro South Hospital and Health Service’ and the ‘Metro North Hospital and Health Service’ as Hospital and Health Services for particular parts of Queensland, as follows:
(a)Metro North Hospital and Health Service was continued for certain specified local government areas, relevantly including the part of the local government area of Brisbane City Council that is north of the Brisbane River, other than community child health services and the statistical local area of Karana Downs-Lake Manchester.[7] There was no dispute that the Prince Charles Hospital falls within that area. Furthermore, material exhibited to an affidavit filed by Ms Cai reflected the position that Metro North Hospital and Health Service is a legal entity that operates the Prince Charles Hospital.
(b)Metro South Hospital and Health Service was continued for certain specified local government areas, relevantly including the part of the local government area of Brisbane City Council that is south of the Brisbane River, other than community child health services, the Queensland Children’s Hospital and The Park—Centre for Mental Health.[8] There was no dispute that the Princess Alexandra Hospital falls within that area. Again, material exhibited to an affidavit filed by Ms Cai reflected the position that Metro South Hospital and Health Service is a legal entity that operates the Princess Alexandra Hospital.
[7]See reg 4 and sch 1 of the Hospital and Health Boards Regulation 2023 (Qld) (the ‘Queensland Regulation’).
[8]See reg 4 and sch 1 of the Queensland Regulation.
There was nothing to suggest that either of these hospitals had independently been established or continued as a Hospital and Health Service or that they otherwise had legal personality or were capable of being sued. Rather, the Queensland Regulation treated them as ‘public sector health service facilities’,[9] which is a term defined in the Queensland Act to mean ‘a facility at which public sector health services are provided’.[10] It is clear that the hospitals themselves are not legal persons capable of being sued. It is also clear that the legal entities that operate these two hospitals are capable of being sued, including in relation to a claim in medical negligence in relation to a particular hospital.
[9]See reg 40 and sch 5 of the Queensland Regulation.
[10]Queensland Act, sch 2 (Dictionary).
Thus there was plainly no error in amending the names of the second and third defendants to the proceeding.
The Victorian hospital
In relation to the Alfred Hospital, in Victoria, the fourth defendant relied upon an affidavit in which the fourth defendant’s solicitor stated that ‘“Alfred Health” is the legal entity which operates The Alfred Hospital. Alfred Health is a body corporate and capable of suing and being sued pursuant to s 65P and Schedule 5 of the Health Services Act 1988.’ In addition, material exhibited to an affidavit filed by Ms Cai reflected the position that Alfred Health is a legal entity that operates the Alfred Hospital.
Section 65P of that Act provides that a public health service is a body corporate and is capable of being sued in its corporate name. ‘Public health service’ is defined in s 3(1) to mean, relevantly, a public health service listed in sch 5. Alfred Health is listed in sch 5.
In light of the evidence and the legislative provisions, it is clear that the legal entity that operates the Alfred Hospital and which is capable of being sued in relation to the conduct of that hospital is Alfred Health. There was nothing to suggest that the Alfred Hospital otherwise had legal personality or was capable of being sued. Conversely, it is clear that Alfred Health — being the legal entity that operates the Alfred Hospital — is capable of being sued, including in relation to a claim in medical negligence.
Thus there was plainly no error in amending the name of the fourth defendant to the proceeding.
Other matters raised in the applicants’ submissions
In relation to Ms Cai’s submission that the three legal entities ‘cannot be sued because they don’t provide medical care to patients’ and ‘have no causal relationship with’ Ms Cai, that submission is wrong as a matter of law. The legislative provisions to which Ms Cai refers — ss 9 and 11 of the Civil Liability Act 2003 (Qld) and ss 48 and 51 of the Wrongs Act 1958 — do not support her submission. They set out certain general principles in the context of negligence, but have no bearing on the question of the identification of the legal person who is capable of being sued for negligence. Likewise, the submission that the entities in question are ‘administrative departments’ does not mean that those entities cannot be sued in relation to conduct occurring in hospitals for which they have legal responsibility.
In so far as the written submissions might be understood as suggesting a breach of procedural fairness by Watson J (and noting that there is no ground of appeal based on a breach of procedural fairness), such a submission must be rejected. Ms Cai elaborates on her complaint that she was treated unfairly by referring to an email from the Court to her to the effect that the hearing of her appeal would take place before Keogh J, but that a later email from the Court informed her that the hearing would take place before Watson J. She then claims to have received an email from Watson J’s associate to the effect that the hearing of the appeal was ‘changed to [a hearing of the] trial’, in circumstances where the first, second and third defendants had not then filed their defences.
It is unnecessary for the purposes of this application to determine whether emails to that effect were sent, or whether Ms Cai simply misunderstood one or more of the emails she received. That is because it is plain that the judge did not treat the applicants unfairly. First, it is plain from the transcript of the hearing before his Honour that what occurred was the hearing of the appeal, not a hearing of the trial. Secondly, Watson J patiently and carefully explained to Ms Cai the position in relation to the names of the second, third and fourth defendants to her proceeding, including by taking her through the relevant legislative provisions and their application to the hospitals in question. He gave her an opportunity to put submissions in relation to these issues, and she raised the Civil Liability Act 2003 (Qld) and the Wrongs Act 1958. His Honour’s conduct of the hearing was entirely fair. Furthermore, the orders made by Barrett AsJ were for the applicants’ benefit, because, as Watson J pointed out to Ms Cai in the course of the hearing, had those orders not been made, her claim would necessarily fail.
Conclusion
For the above reasons, I have determined that the applicants’ application for leave to appeal is totally without merit and must be refused.
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SCHEDULE OF PARTIES
DONG TAI CAI First applicant YANZHU CHEN Second applicant and COMMONWEALTH OF AUSTRALIA First respondent METRO SOUTH HOSPITAL AND HEALTH SERVICE Second respondent METRO NORTH HOSPITAL AND HEALTH SERVICE Third respondent ALFRED HEALTH Fourth respondent
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