Maletic v Calvary Healthcare Act Limited

In the Supreme Court of the Australian Capital Territory, Daniella Maletic has commenced proceedings against Calvary Healthcare ACT Limited for damages arising from alleged medical negligence during her admission to Calvary Public Hospital in July 2019. The plaintiff claims that she suffered extensive side effects from the medication Keppra, prescribed for a diagnosed condition of epilepsy, which ultimately resulted in anxiety and suicidal ideation. The proceedings were filed on 1 July 2022, just within the three-year limitation period, but the plaintiff had not fulfilled the requirements under Chapter 5 of the Civil Law (Wrongs) Act 2002 (ACT) prior to initiating the proceedings.

The court had to determine whether the plaintiff was entitled to commence the proceedings without first complying with Chapter 5 of the Civil Law (Wrongs) Act 2002. The defendant sought to have the proceedings stayed for a period of six months to allow the plaintiff to comply with the requirements of Chapter 5. The plaintiff did not make an application for leave to commence proceedings despite non-compliance with Chapter 5. The court considered whether the circumstances warranted a stay of proceedings and if so, for what period.

The court found that the plaintiff had invoked the jurisdiction of the Court and the obligations of the parties under s 5A of the Court Procedures Act 2004 (ACT). The court held that some justification must be established for the Court to exercise its power to stay proceedings contrary to the objectives of the Act. The court accepted that there will be cases where, through no fault on the part of the claimant, they may have been unable to comply with the requirements of Chapter 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. The court found that six months was a reasonable period for the parties to undertake the steps required under Chapter 5 and ordered that 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. The matter was listed for directions on 30 January 2023, and the costs of and incidental to this application were in the cause.