McPherson v Australian Capital Territory

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
Reinicke v Neilson [2004] ACTSC 5
Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455

Van Gerven v Amaca Ltd [2010] VSC 236

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

1. This case is listed for a hearing in the central civil list commencing on 18 July 2016.

1. 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…