MM v Australian Capital Territory
[2023] ACTSC 55
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | MM v Australian Capital Territory |
Citation: | [2023] ACTSC 55 |
Hearing Date: | 23 March 2023 |
DecisionDate: | 23 March 2023 |
Before: | McCallum CJ |
Decision: | (1) Vacate the hearing listed on 17 April 2023. (2) List the matter on 18 May 2023 at 9:30am before McCallum CJ for directions. (3) Vary the order made by Elkaim J on 8 February 2022 forbidding the publication of the plaintiff’s name so as to allow the disclosure of her name and date of birth in the schedule to any notice of non-party production or subpoena filed in the proceedings. (4) Reserve the costs of the plaintiff’s application in proceedings filed 14 March 2023 with a view to considering at some future point the making of an order under r 1753 of the Court Procedures Rules 2006 (ACT) visiting the costs thrown away by reason of the vacation of the hearing date on the former practitioner after affording that practitioner an opportunity to be heard. |
Catchwords: | CIVIL LAW – INTERLOCUTORY APPLICATION – Application to vacate hearing date – purpose of civil procedure provisions – where deficiencies are exposed in former solicitor’s preparation of the proceedings – requirement to perform the function of case management with “an undiminished commitment to afford to all who come to the courts a manifestly just trial of their disputes” |
Legislation Cited: | Court Procedures Rules2006 (ACT) r 1753 Court Procedures Act2004 (ACT) s 5A Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 111(2) |
Cases Cited: | Queensland v JL Holdings Pty Ltd [1997] HCA 1; 189 CLR 146 |
Parties: | MM ( Plaintiff) Australian Capital Territory ( Defendant) |
Representation: | Counsel S Onitiri ( Plaintiff) M Fordham SC ( Defendant) |
| Solicitors Aulich Civil Law ( Plaintiff) ACT Government Solicitors ( Defendant) | |
File Number: | SC 520 of 2021 |
McCALLUM CJ:
The plaintiff in these proceedings seeks damages from the Australian Capital Territory for purely psychiatric harm resulting from allegations that she was groomed and sexually assaulted by a former Deputy Registrar of the Magistrates Court.
The proceedings are presently listed for hearing on 17 April 2023 with an estimate of five days. By application in proceeding dated 14 March 2023, the plaintiff seeks an order vacating that hearing date.
The circumstances in which the application is brought are carefully explained in the comprehensive affidavit of Mr Russell-Uren affirmed 14 March 2023. I have considered the content of that affidavit in detail. In short, it may readily be concluded that, as a result of various deficiencies in the preparation of the matter for hearing on the part of the plaintiff’s former solicitors (from whom the current solicitors took over late last year), the matter is not ready for hearing, or at least not ready for a hearing that would be fair to the plaintiff.
The Australian Capital Territory has very fairly taken the position of not opposing the application, acknowledging that it would not be appropriate to visit on this particular plaintiff the inconvenience and potential further suffering that would attend being forced on to a hearing in those circumstances.
Litigants are ordinarily bound by the conduct of their legal representatives. If the plaintiff were a corporate entity or a sophisticated litigant, the appropriate course may have been to force the hearing on and leave her to her remedy in negligence against the former solicitors. That is not an outcome that I would consider to be just in the present case. In reaching that determination, I have regard to s 5A of the Court Procedures Act2004 (ACT), which provides that the main purpose of the civil procedure provisions is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. As Kirby J famously observed when provisions of that kind were first introduced, it is important for judicial officers not to forget the “just” part of that combination of considerations (for example in Queensland v JL Holdings Pty Ltd [1997] HCA 1; 189 CLR 146 at [51], where his Honour said “but whilst [case management] remains in judicial hands it is a function which must be performed with flexibility and with an undiminished commitment to afford to all who come to the courts a manifestly just trial of their disputes”).
For those reasons, I am satisfied that the hearing date should be vacated. At the request of the plaintiff, I will stand the proceedings over before me until 18 May 2023. The reason for that lengthy adjournment is that Mr Onitiri, who appears for the plaintiff, tells me that the solicitors wish to undertake a careful audit of the preparation that has been done and that needs to be done, rather than consenting too early to a timetable which it may transpire they cannot meet.
Secondly, the defendant, by application in proceeding filed 17 March 2023, seeks an order varying a previous non-publication order made by Elkaim J in chambers on 8 February 2022, prohibiting the publication of the name of the plaintiff under s 111(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
The purpose for which the variation is sought is to allow the defendant to issue non-party production notices or subpoenas which accurately identify the plaintiff by her name and date of birth. That application is not opposed by the plaintiff.
Arguably, the exemption for such a purpose would readily be implied into the making of an order under that section but in any event, for abundance of caution, I will make the order sought so as to enable the defendant properly to prepare for the proceedings by issuing appropriate notices.
For those reasons, I make the following orders:
(1) Vacate the listing on 17 April 2023.
(2) List the matter on 18 May 2023 at 9:30am before McCallum CJ for directions.
(3) Vary the order made by Elkaim J on 8 February 2022 forbidding the publication of the plaintiff’s name so as to allow the disclosure of her name and date of birth in the schedule to any notice of non-party production or subpoena filed in the proceedings.
(4) Reserve the costs of the plaintiff’s application in proceedings filed 14 March 2023 with a view to considering at some future point the making of an order under r 1753 of the Court Procedures Rules 2006 (ACT) visiting the costs thrown away by reason of the vacation of the hearing date on the former practitioner after affording that practitioner an opportunity to be heard.
| I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 12 April 2023 |