Luff v Australian Capital Territory

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Luff v Australian Capital Territory

Citation:

[2022] ACTSC 254

Hearing Date:

15 September 2022

DecisionDate:

16 September 2022

ReasonsDate:

11 October 2022

Before:

Kennett J

Decision:

See [33]

Catchwords:

CIVIL LAW – PRACTICE AND PROCEDURE – Legal professional privilege – implied waiver – where author of previous report declared conflict of interest and report not served – whether defendant waived privilege in report by disclosing author’s statement of conflict – privilege not waived

CIVIL LAW – PRACTICE AND PROCEDURE – Application for extension of time to file expert report – where author of previous report declared conflict of interest and report not served – where non-compliance with Court timetable and matter not relisted – consideration of application of rules 1241, 1401 and 1404 – orders varied to extend time to file expert report

Legislation Cited:

Court Procedures Rules 2006 (ACT) rr 306, 1241, 1401, 1404

Cases Cited:

Hinchcliffe v Carter’s Transport Australia Pty Ltd [2017] ACTSC 223

Stekovic v Australian Capital Territory [2015] ACTSC 385

Texts Cited:

Supreme Court of the Australian Capital Territory, Practice Direction No 2 of 2014: Case Management in Proceedings Commenced by Originating Claim, 18 September 2019

Parties:

Kirsty June Luff ( Plaintiff)

Australian Capital Territory ( Defendant)

Representation:

Counsel

B Jullienne ( Plaintiff)

A Costin ( Defendant)

Solicitors

AC Lawyers ( Plaintiff)

ACTGS ( Defendant)

File Number:

SC 330 of 2021

KENNETT J:

1. By an Application in Proceeding filed on 25 August 2022, the defendant (the Territory) sought an extension of time in which to file an expert report. The plaintiff opposed this.

1. I heard argument on the application on 15 September 2022. The following day, I made orders substantially in accordance with those sought by the Territory. I also ordered that the Territory pay the plaintiff’s costs of the application.  What follows is my reasons for making those orders.

1. The plaintiff suffered an injury to her finger, for which she was treated by way of surgery in a hospital operated by the Territory. There is an issue concerning how competently that surgery was performed. Later, she obtained further treatment from another surgeon (Dr Vrancic) which apparently involved four further surgical procedures. She encountered problems including a serious infection in the finger that had been treated, and ultimately the finger was amputated.

1. The plaintiff commenced proceedings against the Territory by filing an Originating Claim on 12 August 2021. The Territory filed its Defence on 7 January 2022.

1. On 9 March 2022 (by which time the plaintiff had already served her evidence in relation to liability) the Court made timetabling orders which included the following:

6.Plaintiff to serve expert reports as to quantum by 1 April 2022 (noting the Plaintiff has served her primary liability evidence);

7.     Defendant to serve any expert reports as to liability by 27 May 2022;

8.     Defendant to serve any expert reports as to quantum by 1 July 2022;

9.     Parties to have participated in a private mediation on…