Chaloner v The Australian Capital Territory
[2014] ACTSC 329
•11 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Chaloner & Anor v The Australian Capital Territory |
Citation: | [2014] ACTSC 329 |
Hearing Date: | 25 June 2014 |
DecisionDate: | 11 December 2014 |
Before: | Burns J |
Decision: | The applicants are granted leave to appeal from the decision of the Master dated 23 December 2013 refusing leave to amend their pleading, but not including the proposed amendments seeking relief under the Inquiries Act 1991 (ACT). |
Category: | Principal Judgment |
Catchwords: | APPEAL – Appeals From the Master – leave to appeal out of time – leave to further amend pleading – whether applicants can seek relief under the Inquiries Act 1991 (ACT) – leave to appeal partially upheld |
Legislation Cited: | Coroners Act 1994 (ACT) ss 13 (1) (j), 34A, 64, 91, 92 Human Rights Act 2004 (ACT) s 10, 40B, 40C |
Cases Cited: | Parker v The Queen [2002] FCAFC 133 |
Parties: | Holly Jane Chaloner (First Applicant) Kate Ann Chaloner (Second Applicant) The Australian Capital Territory (Respondent) |
Representation: | Counsel Mr Purnell SC (Applicants) Mr Crowe SC (Respondent) |
| Solicitors Ken Cush & Associates (Applicants) ACT Government Solicitors (Respondent) | |
File Number: | SC 54 of 2012 |
Burns J:
Background
On or about 25 February 2011, Mrs Lima Thatcher (the deceased) suffered a fracture of the neck of her right femur in an incident at her nursing home residence in Yass, New South Wales. At that time she was 86 years old, and suffered from multiple medical conditions including dementia and ischemic heart disease. On 26 February 2011 she was admitted to The Canberra Hospital and underwent surgery. Unfortunately, initial surgery was undertaken at the incorrect site, being her left hip. This resulted in the unnecessary replacement of her left hip. When the error was discovered, the right hip was then replaced under the same anaesthetic. The total duration of the operative procedure was about three and a half hours, apparently more than twice as long as it should have taken if the right hip only had been replaced. Post operatively, the deceased’s condition deteriorated and she died on 8 March 2011, some 10 days after her admission to The Canberra Hospital.
As a result of her dementia, the deceased was incapable of making decisions in February 2011. One of her daughters, who lived in Canberra, held an enduring power of attorney to act on her behalf. She was contacted by telephone by an orthopaedic registrar of The Canberra Hospital, an employee of the hospital, and gave her consent to the operation. The orthopaedic registrar completed the consent form incorrectly, stating that the fracture was to the left and not the right femur. As the Master noted in his reasons for decision dated 23 December 2013, from which the applicants now seek leave to appeal from out of time, other documentation on the hospital file before surgery correctly identified the fracture as to the right femur, including a referral letter from the deceased’s general practitioner in Yass, a triage and observation form, the admission form, notes by the admitting orthopaedic registrar in the Emergency Department and a neurovascular observation chart. It appears that the surgeon who performed the operation on the deceased, Dr Burns, looked at the consent form only and not at the other documentation on file. As a consequence, surgery was initially undertaken to replace the wrong hip.
Procedural history
An inquest into the death of the deceased under the provisions of the Coroners Act1997 (ACT) (the Coroners Act) was conducted by Coroner Peter Dingwall, who made and published his findings on 4 November 2011. Coroner Dingwall had before him a report from the pathologist who conducted an autopsy on the deceased on 14 March 2011, which included an opinion by the pathologist that the cause of her death was ischemic heart disease, probably contributed to by mitral valve regurgitation. Coroner Dingwall did not conduct a hearing into the death, being satisfied that the manner and cause of death was sufficiently disclosed, and that the hearing was unnecessary: s 34A Coroners Act.
On 6 March 2012 proceedings were commenced in this Court against the Australian Capital Territory by the present applicants, who are granddaughters of the deceased. At that time, the executrix of the deceased’s estate, Joy Lima Poidevin, was also a plaintiff in the proceedings. On 13 April 2012 Higgins CJ ordered by consent that the executrix be removed as a party, and gave leave for the filing of an Amended Originating Application. In July 2012 the defendant, the Australian Capital Territory, applied for an order that the proceedings be dismissed or stayed. In September 2012 the applicants applied for leave to join the Australian Capital Territory Executive and the Australian Capital Territory Coroner as defendants, and to further amend their pleadings. Before these applications were heard, it was accepted by the applicants that it would be inappropriate to join the Australian Capital Territory Coroner as a defendant, as there is no such office. It was accepted that if leave were granted to add an additional party, it should be the coroner who conducted the coronial proceedings arising out of the death of the deceased, Coroner Dingwall.
Both applications dated July 2012 and September 2012 came before Master Harper for hearing on 5 October 2012. It is accepted by the respondents that the Master was informed that he need only determine the application to amend, and that the application to strike out should await the outcome of the application to amend. This was a sensible course as any amendment of the applicants’ pleadings may have had consequences for the strike out application. On 23 December 2013 Master Harper made orders dismissing the plaintiffs’ application to amend, and dismissing the entire proceedings. The respondent accepts that in dismissing the entire proceedings the Master was in error.
After he had made these orders and published his reasons, the legal representatives of the applicants present in court requested Master Harper to extend the time for filing a notice of appeal against his orders. Master Harper made an order that the time for the filing of a notice of appeal be extended to 13 January 2014. Unfortunately, the applicants’ legal representatives erroneously noted the extended date for filing a notice of appeal as 17 January 2014. On that date, the applicants’ legal representatives lodged a Notice of Appeal with the Court, only to subsequently discover the error, with the consequence that the Notice of Appeal was filed out of time. The applicants applied for leave to file their appeal out of time.
The current application
On 4 April this year orders were made by consent setting aside the orders of the Master dismissing the plaintiffs’ proceedings. The only question remaining is whether the plaintiffs should be granted leave to appeal from the orders of the Master refusing the application by the plaintiffs to amend their claim.
After I had reserved my decision on this application, I canvassed with the parties via my Associate whether they were prepared to have me deal with the appeal itself, if the applicants were successful in their application for leave to appeal out of time. It appeared to me that this was a sensible course as the parties had advanced arguments concerning the merits of any such appeal in the proceedings before me. Whilst the plaintiffs were prepared to allow me to determine both the application for leave to appeal out of time and, if appropriate, the appeal itself on the basis of the material and submissions already before me, the respondents did not provide clear consent to that proposed course. For that reason, I will limit myself to deciding the application for leave to appeal out of time.
The matters relevant to an application to extend time were summarised by the Full Federal Court of Australia in Parker v The Queen [2002] FCAFC 133 at [6] as follows:
1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;
2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and
5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
The respondent, as I understand it, accepts that a reasonable explanation for the applicants’ delay in filing a notice of appeal has been established. In any event, I am satisfied that an acceptable explanation for the delay has been established. I note that the delay in lodging the proposed Notice of Appeal was only four days. There is no suggestion that the respondent has suffered any prejudice by this delay. The respondent opposes the application for leave to appeal out of time, as I understand it, on the basis that any appeal would be bound to fail, and as such a grant of leave would be futile. In order to address this submission, it is necessary to refer to the proposed Further Amended Originating Claim which was before Master Harper, although for present purposes it is sufficient to refer only to the relief sought, and to consider Master Harper’s reasons for refusing the applicants’ application and summarily dismissing the proceedings.
As I have already noted, the proceedings initially identified only the Australian Capital Territory as the defendant. The Originating Application was amended by consent on or about 12 April 2012. The amendments made at that time were directed towards obtaining orders that the Attorney General direct the Coroner to hold an inquest into the manner and cause of the death of Mrs Thatcher pursuant to s 13 (1) (j) of the Coroners Act or that the Attorney General make or authorise an application to be made to this Court seeking an order directing that a coronial inquest be held into the death of the deceased pursuant to s 92 of the Coroners Act. There were clearly problems with the way the applicants pleaded their case in the Amended Originating Application, which I need not detail here. Those representing the applicants, it may be inferred, were also aware of these problems, which led them to apply to further amend their application in September 2012.
The Further Amended Originating Application which the applicants sought to file proposed including, as I have already noted, the Australian Capital Territory Executive and Coroner Dingwall as defendants. The relief, apart from costs, sought by the applicants in this document is:
(a)A declaration or order pursuant to s 40C of the Human Rights Act2004 (ACT) (the HRA) that the rights conferred by s 10 of the HRA on Mrs Thatcher were breached by the Australian Capital Territory;
(b)A declaration or order that the deceased was treated in an inhumane and/or degrading way and/or was subjected to medical treatment without her consent in contravention of ss 10 (1) and 10 (2) of the HRA;
(c)A declaration under s 40C of the HRA that the Australian Capital Territory breached the rights of the deceased pursuant to ss 10 (1) (b) and 10 (2) of the HRA;
(d)An order under s 40C of the HRA or, in the alternative, an order pursuant to the Court’s inherent jurisdiction that the Australian Capital Territory Executive appoint a board of inquiry pursuant to s 5 of the Inquiries Act1991 (ACT) (the Inquiries Act) to consider why and how the deceased was treated and subjected to medical treatment by the Australian Capital Territory;
(e)An order directing Coroner Dingwall to conduct a hearing into the death of the deceased pursuant to s 92 of the Coroners Act;
(f)In the alternative, and order pursuant to s 91 of the Coroners Act directing Coroner Dingwall to conduct a hearing into the death of the deceased because it is in the interests of justice to do so; and
(g)Any other orders that the Court considers appropriate in the interests of justice.
In his decision of 23 December 2013, Master Harper set out the background facts of the proceedings. His Honour went on to consider the respondent’s application for summary judgment on the assumption that the Amended Originating Application would be further amended as sought by the applicants. His Honour then stated:
(a)That it seems plain that The Canberra Hospital is a public authority for the purposes of the HRA;
(b)That The Canberra Hospital is not a legal entity, and the Australian Capital Territory is the appropriate defendant for an action against The Canberra Hospital as a public authority;
(c)That it is not clear from the facts asserted within the draft Further Amended Originating Application that it is alleged that it was the hospital which subjected the deceased to medical treatment without her consent;
(d)That “it appears” that the surgeon and anaesthetist who undertook the surgery on the deceased were visiting medical officers (private practitioners with a right to perform surgery at the hospital);
(e)That the plaintiffs had not alleged that the Australian Capital Territory is vicariously liable for a breach of s 10 of the HRA by the visiting medical officers;
(f)That the claim by the plaintiff that they are victims of the contravention of s 40B of the HRA is misconceived, as neither of them is the person whose human right was infringed, nor have they any right to bring an action on behalf of her estate;
(g)That the plaintiffs are not people who fall within the description of “victims” for the purposes of section 40C of the HRA;
(h)That the plaintiffs were not asserting any new facts or evidence was available concerning the death of the deceased which would connect the death with any negligence of the visiting medical officers;
(i)That assuming the plaintiffs were able to make out all the facts they assert in the draft Further Amended Originating Application, they would not have established that the Coroner made any error, or that there was any material or information he should have taken into account which he failed to take into account;
(j)that the power to appoint a board of inquiry under the Inquiries Act rests with the Australian Capital Territory Executive and this Court does not have the power to order the Executive to exercise a statutory discretion in a particular way; and
(k)that the relief sought by the plaintiffs under the Inquiries Act was in the nature of a mandatory injunction directed to the Crown, which is prohibited by s 24 of the Court Procedures Act2004 (ACT).
As is customary in such applications the applicants provided a draft Notice of Appeal, setting out those grounds upon which they would seek to challenge the decision of Master Harper if leave to appeal is granted. The proposed grounds of appeal are:
(a)Master Harper erred in finding the plaintiffs’ draft Further Amended Originating Application would be doomed to failure;
(b)Master Harper erred in finding that the plaintiffs’ Originating Application as it stood would also be bound to fail;
(c)Master Harper erred in finding granting leave for the Further Amended Originating Application to be filed would be futile and that the application must be dismissed with costs;
(d)Master Harper erred in dealing with the issue of public authority, in that whilst he found that The Canberra Hospital is a public authority, he determined that it was necessary for the plaintiffs to allege that the Australian Capital Territory is vicariously liable for a breach of s 10 of the HRA by Dr Burns;
(e)Master Harper erred in finding the plaintiffs as granddaughters of the deceased could not be victims for the purposes of s 40C of the HRA;
(f)Master Harper erred in finding the plaintiff could not be victims for the purposes of the HRA;
(g)Master Harper erred in arriving at a conclusion as to whether the plaintiffs were victims for the purposes of the HRA without considering:
(i)the proximity of the family tie;
(ii)the particular circumstances of the relationship;
(iii)whether the family member witnessed relevant events;
(iv)the involvement of the family members in attempting to obtain relevant information;
(v)the involvement of the family members in protecting the relevant rights;
(vi)the degree of suffering, uncertainty, anguish and distress; and
(vii)the degree of moral obligation which the family member assumes with respect to protecting the relevant rights.
(h)Master Harper erred in dealing with the issue of whether the plaintiffs were victims for the purposes of the HRA where the totality of the evidence had not been examined on its merits;
(i)Master Harper erred in dealing with the issue of whether the plaintiffs were victims for the purposes of the HRA by failing to take into account the statement in the preamble to the HRA that “The Act encourages individuals to see themselves, and each other, as holders of rights and as responsible for upholding the human rights of others”;
(j)Master Harper erred in finding the plaintiffs could not succeed in that part of the proceedings which sought relief pursuant to s 40C of the HRA;
(k)Master Harper erred in finding the plaintiffs could not seek relief under the Coroners Act, as the interests of justice require an analysis of the whole of the factual circumstances and his Honour should not have dismissed the application without a hearing of all the evidence on its merits; and
(l)Master Harper erred in considering the question of the joinder of the Australian Capital Territory Executive as a defendant in circumstances where only that entity had standing to oppose the orders and the plaintiffs sought orders pursuant to s 40C which are directed to that proposed defendant.
The respondent really only opposes the amendments directed towards Coroner Dingwall and the relief sought under the Inquiries Act. They oppose the proposed amendments directed towards Coroner Dingwall because, they say, the provisions of the Coroners Act the plaintiffs rely upon cannot operate unless the plaintiffs have first availed themselves of the procedure under s 64 of that Act. I will set out the relevant provision:
64Request for hearing or for reconsideration of certain decisions
(1)The Chief Coroner may, on application in writing by a person, arrange for a hearing to be conducted for an inquest or an inquiry into a fire.
(2)Subject to subsection (3), the Chief Coroner must –
(a)on application by a person requesting that a coroner who made a decision to dispense with or to conclude a hearing, reconsider the decision; and
(b)if satisfied that the applicant has sufficient interest in the inquest or inquiry into a fire to which the hearing relates;
request the coroner to whom the application relates to reconsider the decision.
(3)If the application relates to a decision of the Chief Coroner, the Chief Coroner must, if satisfied that the applicant has sufficient interest in the inquest or inquiry into a fire, reconsider the decision.
(4)An application to the Chief Coroner must –
(a)be in writing; and
(b)set out the grounds on which the person relies.
(5)The coroner must respond to the Chief Coroner’s request within 14 days after receipt of the request.
(6)If –
(a)after reconsidering the original finding, the coroner who made it notifies the Chief Coroner that the coroner does not intend to conduct a hearing or to alter the finding; or
(b)the coroner in relation to whose finding the request was made is unavailable (for whatever reason) to reconsider the finding;
The Chief Coroner must arrange for a hearing to be conducted, if satisfied that a hearing should be conducted,
(7)The Chief Coroner, within 14 days after receiving the coroner’s response under subsection (5), must –
(a)if the coroner intends to conduct a hearing, or the Chief Coroner is satisfied under subsection (6) that a hearing should be conducted; or
(b)if the Chief Coroner is not satisfied under subsection (6) that a hearing should be conducted – give the applicant the following:
(i) notice in writing that a hearing will not be conducted;
(ii) if the coroner was available to reconsider the original finding – a written statement setting our any comments by the coroner in response to the applicant’s request, and the coroner’s reasons for not conducting a hearing or altering the original finding;
(iii) a written statement setting out the Chief Coroner’s reasons for not being satisfied that a hearing should be conducted.
(8)An explanation under subsection (7) (b) (ii) must include a statement to the effect that application may be made to the Supreme Court, within 30 days after receipt of the notice, for an order that a hearing be conducted.
The respondent submits that before the plaintiffs may seek relief under s 91 or s 42, they must first have made an unsuccessful application for a hearing under s 64.
In my opinion the plaintiffs have an arguable case for the relief they seek under the Coroners Act, at least to the extent that they should be given an opportunity to appeal against the Master’s refusal to allow the amendments seeking relief under that Act.
The proposed amendments seeking relief under the Inquiries Act is a more difficult proposition. As the Master observed, s 5 of the Inquiries Act provides that the Executive may appoint one or more people as a board of inquiry to enquire into a matter stated in the instrument of appointment. The discretion to appoint a board of inquiry is vested in the Executive, and is unfettered. Real problems would emerge if it were determined that this Court had the power to direct the Executive to appoint a board of inquiry. To what level would the inquiry be funded? Who would determine the terms of the inquiry? The applicants’ grounds, as expressed in the proposed Further Amended Originating Application, for relief under the Inquiries Act is that the decision of the Executive not to appoint a board of inquiry into the treatment provided to the deceased at The Canberra Hospital “was contrary to the interests of justice and not in the public interest”. The applicants do not allege that in declining to appoint a board of inquiry the Executive failed to consider either of those considerations, and thus made an error of law by failing to take into account a relevant consideration. What the applicants seek is a review of the Executive’s decision not to appoint a board of inquiry, and for this Court to substitute its opinion as to whether it is in the interests of justice and in the public interest for there to be an inquiry. The decision whether to appoint a board of inquiry inevitably involves balancing different, and sometimes opposing, considerations such as cost, the public interest and the interests of justice. An assessment of the extent to which the relevant facts are already revealed from other sources would be relevant to determining whether a board of inquiry should be appointed, and in the present case there seems to be little dispute as to the essential facts.
In the course of submissions, the applicants disclaimed the proposition that they were seeking a review of the Executive’s decision not to conduct an inquiry. It is apparent, however, that this is precisely what they are seeking. The Executive has been asked to appoint a board of inquiry, and it has declined. The applicants want this Court to assume the discretion which the Inquiries Act vests in the Executive, and order that the Executive change its decision. In my opinion, the applicants could not succeed on a claim framed in this way.
The respondents referred me to Attorney-General forNew South Wales v Quin (1990) 170 CLR 1 as authority for the proposition that this Court does not have the power to make the order which would be sought by the applicants under the Inquiries Act. They also supported the decision of the Master that what the applicants were seeking was in the nature of a mandatory injunction, and thus prohibited by s 24 of the Court Procedures Act2004 (ACT). In my opinion, both of these submissions are correct.
The applicants will be granted leave to appeal from the decision of the Master refusing leave to amend their pleading, but not including the proposed amendments seeking relief under the Inquiries Act. I will hear the parties on the question of consequential orders, and on the question of costs.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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