Cook-Bateman v Adham - [2025] ACTSC 173

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Cook-Bateman v Adham
Citation:	[2025] ACTSC 173
Hearing Date:	29 April 2025
Decision Date:	2 May 2025
Before:	Baker J
Decision:	See [34]
Catchwords:	CIVIL LAW – application for the plaintiff to receive authorisation to proceed further with claim despite non-compliance pursuant to section 59(1)(c) of the Civil Law (Wrongs) Act 2002 (ACT) – application for leave to be given nunc pro tunc to begin proceedings for damages pursuant to section 79 of the Civil Law (Wrongs) Act 2002 – alleged medical negligence – whether the granting of the authorisation would be futile – reasons for delay – length of delay – degree of prejudice to the parties – uncertain operation of automatic stay – applications granted – proceedings stayed for 6 months
Legislation Cited:	Civil Law (Wrongs Act) 2002 (ACT), ss 51, 59, 79, ch 5 Limitation Act 1985 (ACT), s 16B
Cases Cited:	Cleary v Rinaudo [2013] ACTCA 32; 8 ACTLR 71 Cook v Nominal Defendant [2015] ACTSC 278 Dordevic v Moore [2017] ACTSC 320 Rees-Wlodek v Calvary Healthcare ACT Ltd [2025] ACTSC 162 Ruspandini v Summernats Pty Ltd (No 2) [2025] ACTSC 171
Parties:	Samantha Elizabeth Cook-Bateman ( Plaintiff) Omar Adham ( Defendant)
Representation:	Counsel Katherine Oldfield ( Plaintiff) Dan Crowe ( Defendant)
Solicitors Ken Cush & Associates ( Plaintiff) HWL Ebsworth ( Defendant)
File Number:	SC 278 of 2024

BAKER J:

The application for leave

1․The plaintiff seeks leave, nunc pro tunc, to commence proceedings for medical negligence against the defendant. The application invokes ss 59 and/or 79 of the Civil Law (Wrongs Act) 2002 (ACT) (Wrongs Act).
2․In brief, on 17 August 2015, the plaintiff’s rectum was perforated during surgery that was performed by the defendant for endometriosis. Six years later, in August 2021, as a result of watching the ABC 730 Report on television, the plaintiff became aware of other claims that had been made against the defendant for medical negligence. The plaintiff obtained legal advice. On 23 August 2021, the plaintiff’s legal representative served a Personal Injury Claim Notice (PICN) on the defendant. On 9 August 2024, the plaintiff filed a Statement of Claim, which contains allegations of medical negligence and breach of contract against the defendant.
3․I was informed by the parties that there is a dispute about whether the Statement of Claim was filed outside the period provided by s 16B of the Limitation Act 1985 (ACT). That issue, which raises novel questions about the proper construction of s 16B, is not before me.
4․Section 51(3) of the Wrongs Act required the plaintiff to serve the PICN by no later than May 2016 (being 9 months after the onset of symptoms of her injury). Section 59(1) of the Wrongs Act provides that the claimant “cannot proceed further with the claim” unless the respondent waives non-compliance (s 59(1)(b)); or the Court authorises the claimant to proceed further despite the non-compliance (s 59(1)(c)). As the defendant has not waived the…

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.

Continue reading Cook-Bateman v Adham

Details

AGLC: Cook-Bateman v Adham [2025] ACTSC 173
Case: [2025] ACTSC 173
Decision Date: 2 May 2025

CaseChat Overview and Summary

In the matter of Cook-Bateman v Adham, the plaintiff sought authorisation to proceed further with a claim for damages due to alleged medical negligence against the defendant. The application was filed under section 59(1)(c) of the Civil Law (Wrongs) Act 2002 (ACT), which concerns non-compliance with procedural requirements, and also under section 79, which allows for leave to be granted nunc pro tunc to commence proceedings. The case was heard in the Supreme Court of the Australian Capital Territory.

The primary legal issues before the court were whether the granting of authorisation would be futile, the reasons for the delay in filing the claim, the extent of the delay, the degree of prejudice caused to the parties, and the uncertain operation of the automatic stay provision. The court had to balance the principles of procedural fairness and the policy considerations underpinning the statutory limitations on commencing legal proceedings.

The court determined that the plaintiff's application for authorisation should be granted, and the application for leave to be given nunc pro tunc was also successful. The court found that despite the delay, the granting of authorisation would not be futile and that the reasons for the delay were justified. While acknowledging the prejudice to the defendant, the court concluded that the public interest in resolving the dispute outweighed the prejudice. The proceedings were stayed for six months to allow the parties to negotiate or attempt to resolve the dispute without further court intervention.

The court ordered that the proceedings be stayed for six months. During this period, the parties were to make further efforts to resolve the matter without the need for further court involvement. The stay was intended to provide an opportunity for the parties to reach an amicable resolution, thereby potentially avoiding the need for a protracted and costly trial.

Orders

Orders of the court

See [34]

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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