Hartfield v Calvary Healthcare Act Ltd (No 2)

[2024] ACTSC 33

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Hartfield v Calvary Healthcare ACT Ltd (No 2)

Citation: 

[2024] ACTSC 33

Hearing Date: 

Heard on the papers.

Decision Date: 

21 February 2024

Before:

Baker J

Decision: 

I order that the costs of and incidental to the amendment of the plaintiff’s Statement of Claim be costs in the cause.

Catchwords: 

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE - COSTS – costs of and incidental to application to amend Statement of Claim after the close of evidence – r 513 of the Court Procedures Rules 2006 (ACT) – alternative case within the existing pleadings - where defendant disclaimed any issue with the pleadings at hearing – defendant’s application for costs dismissed – costs to be costs in the cause.

Legislation Cited: 

Court Procedures Rules 2006 (ACT), r 513

Cases Cited: 

Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8

Commissioner for Fair Trading v Bowes Street DevelopmentsPty Ltd [2021] ACTSC 282

Hartfield v Calvary Healthcare ACT Ltd [2023] ACTSC 401

Naidu v Fergusson [2013] ACTSC 208; 8 ACTLR 150

Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72

Ross v Gordon (No 2) [2023] ACTCA 40

South Sydney West Area Health Service v MD [2009] NSWCA 343; 260 ALR 702

Stewart v North Metropolitan Tramways Co (1886) 16 QBD 556

Parties: 

Emily Hartfield ( Plaintiff)

Calvary Healthcare ACT Ltd ( Defendant)

Representation: 

Counsel

D Toomey SC with D Richards ( Plaintiff)

J Morris SC with E Elbourne ( Defendant)

Solicitors

Maliganis Edwards Johnson ( Plaintiff)

ACT Government Solicitor ( Defendant)

File Number:

SC 251 of 2022

BAKER J:      

Introduction

1․The plaintiff in this matter, Emily Hartfield, seeks damages for medical negligence in relation to her assessment, diagnosis and treatment by the defendant when experiencing an ectopic pregnancy in 2019.

2․The proceedings were heard before me from 11 September 2023 until 15 September 2023. Following the exchange of written submissions after that hearing, the plaintiff sought leave to amend her Statement of Claim to formally particularise an alternative basis of liability.

3․On 19 December 2023, I granted leave to the plaintiff to amend her Statement of Claim: Hartfield v Calvary Healthcare ACT Ltd [2023] ACTSC 401 (Hartfield (No 1)).

4․The defendant now seeks an order that the plaintiff pay all of the defendant’s costs of and incidental to the plaintiff’s amendment of her Statement of Claim, under r 513 of the Court Procedures Rules 2006 (ACT). For the reasons outlined below, I have declined to make the costs order sought by the defendant. Each party should pay their own costs.

Background

5․The background to these proceedings is set out in my judgment in Hartfield (No 1) at [5] – [14].

6․In brief, on 31 July 2019, the plaintiff attended Calvary Public Hospital (the hospital) with left sided abdominal pain and per vaginum bleeding. The plaintiff had previously suffered an ectopic pregnancy in 2015, and she was concerned that she may have been suffering from a further ectopic pregnancy. The plaintiff was admitted to the hospital and assessed overnight, before being discharged on 1 August 2019 (the first admission). She returned to the hospital early on the morning of 2 August 2019 in severe pain (the second admission). Further testing at that time revealed that the plaintiff was suffering from a leaking or ruptured left ectopic pregnancy. The plaintiff was immediately admitted into emergency surgery for removal of her left fallopian tube.

7․By way of Statement of Claim filed on 21 July 2022, the plaintiff alleges that in the first admission, the defendant, inter alia, failed to “appropriately assess, diagnose and treat” her, and that, as a result of its negligence, the plaintiff suffered both physical and psychological injuries.

8․The proceedings were heard before me from 11 September 2023 to 15 September 2023. At the conclusion of the hearing, at the request of the parties, I made orders for the filing of written closing submissions by both parties and listed the proceedings for oral submissions on 15 December 2023.

9․As noted in Hartfield (No 1) at [5] – [14], both parties received repeated extensions of time to file their written submissions. On 14 December 2023, the plaintiff filed an application seeking vacation of the hearing on 15 December 2023, so as to enable the plaintiff to file an Amended Statement of Claim.

10․I heard this application on 14 December 2023. At that hearing, Senior Counsel for the plaintiff advised the Court that it was necessary for the pleadings to be amended to make it clear that the plaintiff also advances an alternative case: Hartfield (No 1) at [17]. He submitted that the plaintiff’s alternative case was within the existing pleadings, but acknowledged that the alternative case assumed greater prominence after evidence was given by one of the treating doctors. The plaintiff’s Senior Counsel also foreshadowed that as a consequence of the amendment, the defendant may seek to amend its defence and that the plaintiff may be required for further cross-examination.

11․At the hearing on 14 December 2023, Senior Counsel for the defendant did not appear to oppose the plaintiff being granted leave to amend her pleadings; however, Senior Counsel indicated that he could not formally consent to the filing of the Amended Statement of Claim without seeing its content. I adjourned the hearing to 15 December 2023 and made orders that the plaintiff serve a proposed Amended Statement of Claim on the defendant by 4:00pm on 14 December 2023. The plaintiff served a proposed Amended Statement of Claim on the defendant in accordance with these orders.

12․At the resumed hearing on 15 December 2023, the defendant’s Senior Counsel advised the Court that his instructions were to actively oppose the plaintiff being granted leave to file an Amended Statement of Claim.

13․On 19 December 2023, after hearing submissions from both parties, I granted the plaintiff leave to file an amended Statement of Claim and granted the defendant leave to file and serve an Amended Defence. I ordered that the Amended Statement of Claim be filed by 20 December 2023, and that the Amended Defence be filed by 2 February 2024: Hartfield (No 1) at [41]. These orders were made because I concluded that, notwithstanding the lateness of the application, the amendments were required to provide clarity in the pleadings, and to ensure that the real issues in the proceedings could be determined by the Court: Hartfield (No 1) at [35] – [36]. I found that any prejudice arising could be addressed through the recalling of witnesses on the discrete points raised in the plaintiff’s alternative case, and that the delay to be occasioned was not so great as to be determinative against the alternative case being squarely pleaded: Hartfield (No 1) at [38] – [39]. At the time of delivering the judgment, I proposed that each party pay their own costs, but indicated that an application could be made if either party sought a different order as to costs.

14․On the following day, the defendant sent an email to the Court seeking an order under r 513 of the Court Procedures Rules that the plaintiff pay the costs of the application to amend and the costs thrown away as a result of the amendment. Consequently, I made orders in chambers that the defendant was to file and serve any written submissions on the question of costs on or before 22 January 2024, and the plaintiff was to file and serve any submissions on the question of costs on or before 5 February 2024.

15․The defendant filed their submissions on costs late, on 23 January 2024, without seeking an extension from the Court. On 1 February 2024, the defendant sent an email to the Court requesting to withdraw the version of its costs submissions filed on 23 January 2024, and replace it with amended costs submissions filed on 1 February 2024.

16․On 5 February 2024, the plaintiff contacted the Court by email seeking an extension of time to file and serve its costs submissions by 9 February 2024, as a result of the defendant’s filing of amended costs submissions on 1 February 2024. I granted this extension and the plaintiff filed its costs submissions on 9 February 2024.

17․In its written submissions filed on 23 January 2024, the defendant foreshadowed that it may seek an opportunity to reply to the plaintiff’s submissions. The defendant did not seek an opportunity to file any further submissions after the plaintiff’s costs submissions were filed on 9 February 2024.

Submissions

18․The defendant submits that the plaintiff had “numerous opportunities … to properly plead her case prior to commencement of the hearing” but that she failed to do so, without explanation. The defendant contends that the plaintiff’s original claim “proceeded on the basis that her alleged psychological distress was a consequence of the loss of natural fertility brought about by the failure to surgically explore her left fallopian tube” and that “no issue of contributory negligence arose on that pleading”. The defendant alleges that the plaintiff failed to properly articulate the alternative claim in her Personal Injury Claim Notification; Statement of Claim; further and better particulars; or at various directions hearings.

19․The defendant further alleges that the “reformulation” of the case was evident in a letter sent by the plaintiff’s solicitors on 29 June 2023; when the plaintiff sought a further psychiatric review by her expert psychiatrist a week prior to the hearing; throughout the hearing; and upon the filing of the plaintiff’s written submissions. Despite this, the plaintiff failed to amend her pleadings until the defendant raised the issue in its written submissions on 20 November 2023 and again in correspondence on 8 December 2023.The defendant contends that this has affected its “ability to plead an appropriate defence, the decision to lead evidence in chief, cross examine and obtain expert opinion” and that as a result, the “litigation has become protracted”.

20․The defendant submits that “no fault whatsoever can be attributed to the Defendant for the additional costs which have been, and will be, incurred by both parties as a result of the late amendment,” including costs of additional submissions, possible further directions, obtaining additional expert evidence, recalling the plaintiff and/or experts for further examination, and delay in finalising the hearing.

21․In reply, the plaintiff submits that any responsibility for the lateness of the application lies with the defendant. The plaintiff submits that the defendant repeatedly accepted at the hearing on 14 and 15 September 2023 that the pleadings were sufficient in respect of liability arising from the plaintiff’s discharge. The plaintiff also contends that the defendant failed to raise any issue with the pleadings in subsequent discussions regarding the provision of final written submissions. Instead, the issue was first raised in the defendant’s written submissions filed on 20 November 2023. The plaintiff submits that the application to amend could have been made at the hearing on 14 September 2023, when the Court first raised the issue (thus avoiding all costs of the application and hearing), had the defendant not disclaimed any issue with the pleadings.

22․The plaintiff also notes that the application to amend was made at the defendant’s invitation (despite the defendant acknowledging at the hearing that amendment was not required, and the Court indicating a preliminary view that “the pleadings were sufficiently broad to encompass” the alternative case). The defendant then “somewhat surprisingly” opposed the application, requiring the issue to proceed to a hearing on 15 December 2023.

23․Finally, the plaintiff rejects the defendant’s characterisation of the plaintiff’s submissions as being that the amendment was only required due to medical evidence given at trial. The plaintiff submits that it was always the plaintiff’s case that she should not have been discharged from hospital after her first admission, and that this was evident in her original pleadings and particulars (albeit that evidence arising at trial “strengthened” this case). She contends that the defendant was, at all times while running its case at trial, aware of this aspect of the plaintiff’s case.

Principles

24․It is well established that the discretion to award costs is "very wide, although it must be exercised judicially, in accordance with established principle and the statutory context”: Ross v Gordon (No 2) [2023] ACTCA 40 at [61], citing Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at 86 [35] and 96 [65].

25․Rule 513 of the Court Procedures Rules provides:

513 Amendment—costs

(1)This rule applies to the following costs:

(a)costs of an amendment under this part;

(b)costs thrown away because of the amendment.

(2)Unless the court otherwise orders, the costs are payable by the party making the amendment.

Note    Pt 6.2 (Applications in proceedings) applies to an application for an order otherwise ordering.

26․Costs are compensatory, and the question to be addressed is what will be in the interests of justice: Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8 at [12]. Consistent with that principle, rule 513 reflects the position at common law that “a party granted an indulgence by the Court will usually be required to pay the costs consequentially occasioned to its opponent”: Commissioner for Fair Trading v Bowes Street Developments Pty Ltd [2021] ACTSC 282 at [126], quoting Stewart v North Metropolitan Tramways Co (1886) 16 QBD 556 at 558. However, as McWilliam AJ (as her Honour was then) outlined in Bowes Street Developments at [127],

… the discretion to award costs nevertheless remains unfettered, and the Court now must place emphasis on the obligation on parties to conduct cases efficiently and with a view to resolving the real issues in civil proceedings, including the efficient use of the judicial resources available.

27․Rule 513 makes it clear that where an amendment to a pleading is sought which may occasion additional work for an opponent, or waste resources that have already been expended, the opponent should be compensated. However, if subsection (1) is applied inflexibly, it has the capacity to work injustice – for example, in cases where the amendment is a technical amendment that is unreasonably contested, or where the amendment itself is responsive to something belatedly raised by an opponent. In such cases, the capacity to “otherwise order” permits the court to ameliorate an outcome that would otherwise be unfair or not in the interests of justice.

Determination

28․Regrettably, the application to amend the pleading has caused additional delay and cost in the resolution of these proceedings. However, I do not accept that the defendant is without fault for this additional cost and delay.

29․Here, the amendment was arguably unnecessary. I accept that it was “always the plaintiff’s case that she should not have been discharged”. While the plaintiff could have made its alternative case clearer on the pleadings as originally filed, I do not accept that the plaintiff intentionally “ambushed” the defendant with its alternative case.

30․Most importantly, as outlined in Hartfield (No 1), any uncertainty on the part of the defendant as to the plaintiff’s alternative case could not have continued after 14 September 2023, when I raised my understanding of the plaintiff’s alternative case with the defendant’s counsel. At that time (and on the following day), the defendant’s counsel expressly acknowledged that she was not taken by surprise by the plaintiff’s alternative case. After the issue was raised with the parties by the Court on 14 September 2023, there was no reason for the plaintiff to seek leave to amend its pleadings to make her alternative case clearer until the defendant took a pleadings objection in the 20 November 2023 submissions. Although clearly on notice of the plaintiff’s alternative case, the defendant failed to raise any issue with the sufficiency of the pleadings for more than two months, until it filed its written submissions in reply on 20 November 2023. Further, the defendant actively opposed the plaintiff’s application to amend, causing further costs to be incurred by the plaintiff. In these circumstances, a considerable component of the extreme delay and further costs that have been occasioned by the amendment is attributable to the defendant.

31․In view of the defendant’s conduct, the present case is not analogous to South Sydney West Area Health Service v MD [2009] NSWCA 343; 260 ALR 702, or Naidu v Fergusson [2013] ACTSC 208; 8 ACTLR 150, each of which was relied on by the defendant.

32․Where the amendment was for clarity rather than either expanding or confining the case already pleaded, and where it was opposed in the circumstances outlined above, this is a case where the interests of justice are best served if the court ‘otherwise orders’ under r 513. Costs of and incidental to the amendment should be costs in the cause.

Orders

33․For the above reasons, I order that the costs of and incidental to the amendment be costs in the cause.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate:

Date: 21 February 2024