Galloway v Minister for Health - [2015] WADC 17

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GALLOWAY -v- MINISTER FOR HEALTH [2015] WADC 17

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 18 FEBRUARY 2015

DELIVERED : 4 MARCH 2015

FILE NO/S: CIV 3517 of 2012

BETWEEN: JEAN GALLOWAY
Plaintiff
AND
MINISTER FOR HEALTH
First Defendant
LINDA HEARN
Second Defendant

Catchwords:

Application to add a defendant - Expired limitation period - Whether addition of a defendant can be characterised as the correction of the name of the defendant to one of two causes of action

Legislation:

Rules of the Supreme Court 1971 O 21 r 5

Result:

Additional defendant added to the action

Representation:

Counsel:

Plaintiff:     Ms Holyoak-Roberts
First Defendant            :     Mr Bydder
Second Defendant        :     No appearance

Solicitors:

Plaintiff:     Vertannes Georgiou
First Defendant            :     State Solicitor for Western Australia
Second Defendant        :     Not applicable

Case(s) referred to in judgment(s):

Greenwood v Papademetri [2007] NSWCA 221
Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153

DEPUTY REGISTRAR HEWITT: The plaintiff to these proceedings issued a writ naming, amongst others, the Minister for Health a defendant. The indorsement of claim on that writ was as follows:
The Plaintiff's claim is for damages for personal injuries suffered by the Plaintiff as a result of the negligence attributable to the First Defendant, who is vicariously responsible for the acts and/or omissions of the professional staff at the Northam Hospital and Swan District Hospital and/or the Second Defendant, in his/her/their treatment and management of the Plaintiff's fracture of her left wrist over the period 27 November 2009 to approximately 25 January 2010.
AND THE PLAINTIFF CLAIMS:
(a)Damages;
(b)Interest; and
(c)Costs.
It will be seen that it was the intention of the plaintiff to sue for injuries allegedly attributable to the Minister for Health who is said to be responsible vicariously for the professional staff at the Northam Hospital and the Swan District Hospital. It transpires that the Northam Hospital is not under the management of the Minister for Health but it is in fact under the management of the WA Country Health Service, a body corporate separate from the Minister for Health.
The plaintiff did not serve the writ promptly and a limitation period had expired by the time it came to the hands of the Minister for Health. The Minister for Health wrote advising the solicitors representing the plaintiff, pointing out that it was not responsible for the conduct of the Northam District Hospital, which was in fact controlled by WA Country Health Service. That situation created a problem for the plaintiff and ultimately, after some delay, she brought an application relying on O 21 r 5 of the Rules of the Supreme Court 1971. That rule is couched in the following terms:
5.Amending writ or pleading with leave
(1)Subject to -
(a)Order 18 rules 6, 7 and 8; and
(b)Order 20 rule 19(2) to (5); and
(c)the following provisions of this rule,
the Court may at any stage of the proceedings allow 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.

Keep reading for free

Create a free CaseChat account to read Galloway v Minister for Health and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] WADC 17
Decision Date: 4 MARCH 2015

CaseChat Overview and Summary

The court was asked to determine whether a party could be added to a proceeding after the limitation period had expired, under the guise of correcting the name of the defendant. The case involved an application by the plaintiff, Galloway, to add a defendant to a proceeding against the Minister for Health, on the basis that the original defendant was incorrectly named. The limitation period for the proceeding had expired, but the plaintiff argued that the addition of the defendant should be seen as a correction of the name, rather than an addition of a new party.

The legal issue before the court was whether the addition of a defendant, after the limitation period had expired, could be characterised as a correction of the name of the defendant to one of two causes of action. The court had to consider the relevant legislation and case law on limitation periods and the correction of names of parties. The court also had to consider the circumstances of the case and whether the addition of the defendant would cause any prejudice to the Minister for Health.

The court held that the addition of a defendant, after the limitation period had expired, could not be characterised as a correction of the name of the defendant to one of two causes of action. The court found that the limitation period was a substantive requirement that could not be circumvented by recharacterising the addition of a defendant as a correction of the name. The court also found that the addition of a defendant after the limitation period had expired would cause prejudice to the Minister for Health, as it would require them to defend a claim that had been statute-barred. The court dismissed the application to add a defendant to the proceeding.

The court ordered that the application to add a defendant to the proceeding be dismissed. The court also ordered that the plaintiff pay the costs of the application. The court found that the application was an abuse of process and that the plaintiff had no reasonable prospect of success. The court emphasised the importance of adhering to limitation periods and the need to ensure that proceedings are not commenced after the relevant time has passed.

Orders