SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | McPherson v Australian Capital Territory |
Citation: | [2016] ACTSC 169 |
Hearing Date: | 8 July 2016 |
DecisionDate: | 11 July 2016 |
Before: | Mossop AsJ |
Decision: | See [57] |
Catchwords: | PRACTICE AND PROCEDURE – Application to withdraw admission made in notice disputing facts – Where admission made without instructions from client – Where admission a mistake based upon a misinterpretation of documentary evidence – Insufficient evidence to indicate that there would be difficulties responding to the withdrawal of the admission – Leave granted to withdraw admission PRACTICE AND PROCEDURE – Application to withdraw implied admissions – Admissions said to arise from a failure to respond to a notice to admit authenticity of documents – Where notice included descriptions containing contentious facts – The seeking of admissions ought to be done expressly in a notice to admit facts, not by embedding facts in a notice to admit authenticity of documents – Leave granted to withdraw admissions PRACTICE AND PROCEDURE – Application to join a second defendant – Where granting leave would require hearing date to be vacated due to delay in making application – Reasons for delay unsatisfactory – Commercial desirability to solicitor of filing a claim early does not outweigh plaintiff’s responsibility to properly investigate case – Claim able to be brought in separate proceedings – Application refused STATUTORY INTERPRTETATION – Limitation Act 1985 (ACT), s 16B – Where plaintiff seeking to join a second defendant – Whether reference to “someone else’s act or omission” requires identification of the particular defendant or simply one of the possible defendants – Not necessary to decide |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 242, 1304 Limitation Act 1985 (ACT), s 16B |
Cases Cited: | AonRisk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Mazzeo v Caleandro Guastalegname & Co [2000] VSCA 230 |
Parties: | Pamela McPherson (Plaintiff) Australian Capital Territory (Defendant) Chin-Wing Lai (Interested party) |
Representation: | Counsel S Hausfeld (Plaintiff) L Donohoe SC, N Oram (Defendant) A Muller (Interested party) |
| Solicitors Gerard Malouf & Partners (Plaintiff) ACT Government Solicitor (Defendant) Moray & Agnew (Interested party) | |
File Number: | SC 419 of 2014 |
MOSSOP AsJ:
Introduction
This case is listed for a hearing in the central civil list commencing on 18 July 2016.
The plaintiff alleges that the defendant, which ran the Canberra Hospital, was negligent in relation to the treatment at the hospital on 30 April 2012. The plaintiff alleges that the defendant failed to advise her of certain changes in her lungs that were detectable upon a CT pulmonary angiogram (CTPA). She also alleges negligence in failing to ensure that the CTPA was reviewed and reported on and in failing to follow up the plaintiff upon discharge or subsequent receipt of the formal radiologist report. These failures are alleged to have caused a delay in the diagnosis of her sarcoidosis…
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- Case
- [2016] ACTSC 169
- Decision Date
CaseChat Overview and Summary
The court considered the criteria for granting leave to withdraw admissions, including whether there was a good reason for the delay in applying to withdraw the admission, whether there would be any prejudice to the other party if the admission was withdrawn, and whether there was sufficient evidence to indicate that there would be difficulties responding to the withdrawal of the admission. The court found that the admissions were made without instructions from the client and were based on a misinterpretation of documentary evidence. The court held that there was insufficient evidence to indicate that there would be difficulties responding to the withdrawal of the admission and granted leave to withdraw the admissions.
The court held that the seeking of admissions ought to be done expressly in a notice to admit facts, not by embedding facts in a notice to admit authenticity of documents. The court held that the implied admissions were invalid and granted leave to withdraw them. The court held that the plaintiff’s responsibility to properly investigate the case outweighed the commercial desirability to the solicitor of filing a claim early. The court refused leave to join the second defendant, holding that the claim could be brought in separate proceedings.
Orders
Orders of the court
See [57]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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