Mooney v Alfred Health - [2020] VSC 114

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2019 00717

JO-ANN MOONEY	Plaintiff
v
ALFRED HEALTH	Defendant

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JUDICIAL OFFICER:	Judicial Registrar Clayton
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2020
DATE OF RULING:	28 February 2020
CASE MAY BE CITED AS:	Mooney v Alfred Health
MEDIUM NEUTRAL CITATION:	[2020] VSC 114

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PRACTICE AND PROCEDURE – Extending validity of the writ – Supreme Court (General Civil Procedure) Rules 2015 r 5.12 – Exercise of discretion – Relevant considerations – Nature of medical negligence claims – Where significant delay by legal practitioner in identifying, obtaining and reviewing expert reports – Where defendant delayed in providing certain medical reports – validity extended.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	-	Mr Jacob Sutton, Slater & Gordon Limited
For the Defendant	-	-

JUDICIAL REGISTRAR:

This is an application by the solicitor for the plaintiff for an extension of the validity of the writ.

The writ was filed on 21 February 2019. The summons and affidavit in support of this application were filed on 21 February 2020. Pursuant to r 5.12 of the Supreme Court (General Civil Procedure) Rules 2015, a writ or an originating motion shall be valid for service for one year after the day it is filed. The summons for this application was filed on the day that the writ expired.

Pursuant to r 5.12(2) the Court may extend the period of the validity of the writ. Such an order may be made before or after expiry of the writ.

The relevant principles are summarised by Derham As J in the matter of Howard v Power [2013] VSC 198 at [10] (footnotes omitted):

The principles applicable are well settled. They derive in part from earlier Rules (Order 8 Rule 1), which provided that the court might order that a writ be renewed if satisfied that reasonable efforts had been made to serve the defendant, or for “other good reason”. Despite the change in language, however, the authorities make it clear that the court should determine the question of extending the validity of the writ on the same basis as previously. Amongst the differences between the old and new Rules is a change of terminology, from renewal of the writ to ‘extension of its validity. The principles applicable are, in summary, as follows:
(a)Although the power conferred by Rule 5.12 is wholly discretionary, a judge has to approach the exercise of the discretion in accordance with established principles: Dagnell v Freedman & Co [1993] 2 All ER 161 at 165 (“Dagnell”);
(b)The jurisdiction given by the rule ought to be exercised with caution: Battersby v Anglo-American Oil Co Ltd (“Battersby”); Ramsay v Madgwicks (“Madgwicks”);

(c) It is the duty of a plaintiff to serve a writ promptly: Battersby at 32;
(d)An application to extend time for service is not granted as a matter of course: Battersby at 32; Madgwicks; Savcor Pty Ltd v Cathodic Protection International APS (“Savcor”);
(e)The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] VSC 114
Decision Date: 28 February 2020

CaseChat Overview and Summary

In the case of Mooney v Alfred Health, the plaintiff sought to extend the validity of a writ which was set to expire. The nature of the dispute was a medical negligence claim against Alfred Health, which arose from the plaintiff's alleged mistreatment at the hands of the defendant's medical staff. The Supreme Court of Victoria was tasked with determining whether the writ's validity could be extended under rule 5.12 of the Supreme Court (General Civil Procedure) Rules 2015. This rule allows for the extension of the writ's validity when the defendant has delayed in providing certain documents, or where there are other exceptional circumstances that justify such an extension.

The primary legal issue for the court was whether the plaintiff's significant delay in identifying, obtaining, and reviewing expert reports justified the exercise of the court's discretion to extend the writ's validity. The court also had to consider whether the defendant's delay in providing certain medical reports constituted exceptional circumstances warranting an extension. The court's task was to weigh these factors against the overarching principle that the granting of an extension should not unduly prejudice the opposing party.

The court determined that, in the context of medical negligence claims, the delay in obtaining and reviewing expert reports could be a valid reason for extending the writ's validity, particularly when the delay was not entirely attributable to the plaintiff. The court found that the defendant's delay in providing certain medical reports constituted exceptional circumstances. It was noted that the defendant's actions contributed to the plaintiff's delay, and the court had regard to the potential prejudice to the plaintiff if the writ were not extended. Consequently, the court exercised its discretion under rule 5.12 to extend the writ's validity, allowing the plaintiff to proceed with the medical negligence claim. The court's decision acknowledged the complexity of medical negligence cases and the importance of allowing the plaintiff a reasonable opportunity to prepare their case.

Orders