Maletic v Calvary Healthcare Act Limited

[2022] ACTSC 231

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Maletic v Calvary Healthcare ACT Limited

Citation:

[2022] ACTSC 231

Hearing Date:

26 August 2022

DecisionDate:

26 August 2022

Before:

McCallum CJ

Decision:

(1) The proceeding be stayed for a period of 6 months until 20 January 2023 to allow the parties to comply with the requirements of Chapter 5 of the Civil Law (Wrongs) Act 2002;

(2)       The matter be listed for directions on 30 January 2023            before the Senior Deputy Registrar at a time to be advised;

(3)       Costs of and incidental to this application be in the cause.

Catchwords:

CIVIL PROCEDURE – Originating Claim – Limitation Period – Stay of Proceedings – Requirements under Ch 5 of the Civil Law (Wrongs) Act 2002 (ACT) – where proceedings commenced in order to avoid expiration of limitation period – where plaintiff must seek leave to commence proceedings

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT), Ch 5, s 79

Court Procedures Act 2004 (ACT), s 5A

Cases Cited:

Casey v Alcock [2009] ACTCA 1; 3 ACTLR 1

Parties:

Daniella Maletic ( Plaintiff)

Calvary Healthcare ACT Limited ( Defendant)

Representation:

Counsel

S Slockee ( Plaintiff)

J Whiting ( Defendant)

Solicitors

Maliganis Edwards Johnson ( Plaintiff)

ACT Government Solicitors ( Defendant)

File Number:

SC 217 of 2022

McCallum CJ:

1. These are proceedings for damages for personal injury arising out of alleged medical negligence following the plaintiff’s admission to Calvary Public Hospital in July 2019.  The treatment on that occasion entailed a diagnosis of epilepsy and the prescription of medication, Keppra, to treat the diagnosed condition.  The plaintiff claims to have suffered extensive side effects as a result of that medication including sensory and visual hallucinations and a variety of other conditions resulting in her experiencing anxiety and, ultimately, suicidal ideation. 

1. It was not until a recent consultation with a different medical practitioner, on 9 March 2022, that the plaintiff was informed of that practitioner’s medical opinion that the diagnosis of epilepsy may have been wrong and that the side effects of Keppra, which would not have been prescribed but for that diagnosis, have caused the significant problems from which the plaintiff claims she now suffers. 

1. The proceedings were commenced by originating claim filed on 1 July 2022.  That was just inside the expiration of the limitation period of three years from the date on which the plaintiff claims the defendant was negligent; namely, 2 July 2019.  It was accordingly necessary, in order to avoid the risk of the proceedings being statute barred, for the originating claim to be filed that day. 

1. The difficulty, however, is that the Civil Law (Wrongs) Act 2002 (ACT) requires a claimant, before commencing proceedings, to undertake a number of steps. Because of the timing of the information received as to potential negligence in this case, the plaintiff had not undertaken any of those steps by the time she commenced proceedings. The obligations of a party pursuant to Ch 5 of the Civil Law (Wrongs) Act are set out in careful detail in the defendant’s submissions as follows:

“Ordinarily, section 51 of the Act provides that before a claimant brings a proceedings against someone else (a respondent) based on a claim in relation to a personal injury, the claimant must give the respondent written notice of the claim. The provision of that notice then triggers a number of obligations on both parties under chapter 5 of the Act, which include the following:

(1)The respondent must, within 1 month of the receipt of the notice, provide a written response to the claimant under section 54 of the Act to advise whether the notice is complying and that the respondent is the proper respondent to the claim;

(2)The respondent may identify whether there are any other potential contributors to the claim and issue notices under section 57 of the Act;

(3)The claimant must give the respondent copies of particular records and information pursuant to section 64 of the Act;

(4)The respondent must give the claimant copies of records identified under section 68 of the Act;

(5)The respondent must, within six months of the receipt of complying notice of claim, give the claimant a notice in writing to advise whether liability is admitted or denied, if contributory negligence is claimed, and either respond to any settlement offer or make a written offer of settlement in an attempt to resolve the claim.”

1. The case accordingly presents a difficulty which frequently arises in applications in this list and, as I understand the position, also in the Magistrates Court: the proceedings had to be commenced in order to avoid the expiration of the limitation period.  However, they were not able to be commenced without the leave of the Court. 

1. Section 79 of the Civil Law (Wrongs) Act provides that the Court, on application by a claimant, may give leave to the claimant to begin proceedings, despite non-compliance with Ch 5, if the Court is satisfied there is an urgent need to begin the proceeding. In the present case, the originating claim was filed without any application for leave having been made. The defendant thereupon lodged an application in proceeding seeking to have the proceedings stayed for a period of six months to allow the complainant to comply with the requirements of Ch 5.

1. It may be accepted that, in a proper case, the Court would grant such a stay and I am satisfied now that this is such a case. As explained in the authorities referred to in the written submissions provided by the defendant, the purpose of Ch 5 is, broadly speaking, consistent with the obligation of the Court to determine proceedings promptly and, indeed, is calculated to avoid the need for proceedings to be commenced at all. The defendant in that context referred to the decision of Refshauge J in Casey v Alcock [2009] ACTCA 1; 3 ACTLR 1 where his Honour said at [33]–[34]:

“[33]This seems to be a fair way to bring such a claim to a head quickly and thereby comply with the expressed purposes of the provisions as noted above.  The complaint is accompanied by significant information;  the respondent is not obliged to accept it if it is inadequate as non-compliant; if it is adequate, the respondent is given a reasonable time to investigate and to determine whether it can, in good faith, admit liability or not.

[34]That must be in the interests of both parties and assist early resolution of claims.”

1. The defendant also drew my attention to his Honour’s explanation of the intention of Ch 5 at [30]–[31]:

“[30] The thrust of the legislation is that personal injuries claims should be resolved quickly     and this is referred to time and time again in all the extrinsic material: see p 3 of the       Explanatory Statement for the Civil Law (Wrongs) Amendment Bill 2003 (ACT); par 6.1       of the Department of The Treasury, Review of the Law of Negligence Final Report,   Canberra, 2002 (the Ipp Report); p 2247 of the ACT Legislative Assembly Hansard of          24 June 2003; p 3002 of the ACT Legislative Assembly Hansard of 21 August 2003.

[31]The scheme envisaged by the legislation is that before an injured party can commence court proceedings, he or she must give notice of a claim, which is required by s 51(2) to contain prescribed information.”

1. Those remarks may be accepted. However, parties must recognise that, by filing an originating claim, the plaintiff invokes the jurisdiction of the Court and enlivens the Court’s obligations, and those of the parties under s 5A of the Court Procedures Act 2004 (ACT). Section 5A(4) imposes a statutory duty on parties to help the Court to achieve the main objectives of the civil procedures provisions, which include the efficient use of the judicial and administrative resources available for the purposes of the Court, the efficient disposal of a Court’s overall case load and the timely disposal of civil proceedings.

1. In the face of that statutory obligation, it should not be assumed that the problem of a claim being commenced urgently because of the approaching expiration of a limitation period entitles the parties simply to proffer short minutes of orders by consent asking the Court to make orders staying proceedings as a matter of course.  The determination to stay a proceeding is prima facie inimical to the objectives to which I have referred.  Some justification must be established for the Court to exercise it contrary to those objectives. 

1. As I have indicated, I accept that there will be cases where, through no fault on the part of a claimant, he or she may have been unable to comply with the requirements of Ch 5 before needing urgently to commence proceedings. However, that position must be demonstrated to the Court on evidence and not simply assumed by the provision of short minutes of orders by consent.

1. Ordinarily, the Court would expect the parties to take the following steps in such circumstances. First, for a claimant commencing proceedings without having complied with Ch 5, to include within the prayers for relief in the proceedings an application for leave to commence them. Secondly, if there is to be an application for a stay by either party, which I note is not the automatic result of the grant of leave, the basis on which the stay is sought should be established by evidence directed to, at least, the following matters: the reasons the requirements of Ch 5 have not been complied with prior to the commencement of the proceedings, the reason there is an urgent need to begin the proceeding in accordance with s 79(1) of the Civil Law (Wrongs) Act, the reason a period of six months is required if that is the length of the stay sought, and any other matters of which the Court should be made aware in determining the application.[1] 

   [1] This is not correct: see Ruspandini v Summernats Pty Ltd (No 2) [2025] ACTSC 171 at [8].

1. I accept that six months is the period contemplated by the legislation for completion of the necessary investigations and decisions but, in circumstances where a party has already invoked the jurisdiction of the Court, it may be expected that the parties will ordinarily act more expeditiously than they would in the ordinary course. 

1. In the circumstances of seeking a stay for the full six months, the need for that should be explained in the material provided to the Court. In the present case, the plaintiff’s medical condition recently identified by Dr Ahmadis is one of some complexity and I accept that six months is a reasonable period for the parties to undertake the steps required under Ch 5.

1. For those reasons, by consent, I make the following orders:

   (1) The proceeding be stayed for a period of 6 months until 20 January 2023 to allow the parties to comply with the requirements of Ch 5 of the Civil Law (Wrongs) Act 2002;

   (2)     The matter be listed for directions on 30 January 2023 before the Senior Deputy Registrar at a time to be advised;

   (3)     Costs of and incidental to this application be in the cause. 

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for  Judgment of her Honour Chief Justice McCallum

Associate:

Date: