Mooney v Alfred Health
[2020] VSC 114
•28 February 2020
| 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 first question to consider is whether the plaintiff has taken reasonable steps to serve the writ. If not, it then becomes necessary to consider whether there was “some other good reason” for making the order to extend time for service of the writ: Soper v Matsukawa (“Soper”); Battersby;
(f)The plaintiff carries the onus of showing that there is a good reason for extending the time to serve the writ (Soper at 952; Madgwicks at 6; Savcor at [41]); the applicant’s burden is no greater if the limitation period has expired between the date of issue of the writ and the date on which the application is made: Findlay at 187;
(g)Whether there is good reason depends on all the circumstances of the case: Dagnell at 165; Kleinwort Benson Ltd v Barbrak Ltd& Ors [1987] AC 597 at 622-3 (“Kleinwort”); and it is not possible to define or circumscribe the scope of the expression “good reason”: Kleinwort;
(h)Where the application is made after the period for service has expired, the reason must be one of substance (Savcor at [41]);
(i)The selection of relevant factors to establish that there is a good reason for making the order, and the significance to be given to each of the factors, are matters of discretion (Soper at 954);
(j)The fact that the plaintiff decides not to serve the writ whilst some other case is tried, or to await some future development, is generally not a good reason to justify extending time for service. Madgwicks at 4 and 5; Savcor at [42]); Dagnell at 165-168. It is for the Court and not for one of the litigants to decide whether there should be a stay, and it is not right that people should be left in ignorance that proceedings have been commenced against them if they are there to be served: Battersby at 32;
(k)It is a relevant factor against the exercise of the discretion that the renewal of the writ might deprive the defendant of a limitation defence where the plaintiff has been aware that the passage of time might be dangerous: Battersby at 31–2; Madgwicks at 7; Soper at 953; see also Finlay v Littler [1992] VicRp 59; [1992] 2 VR 181 at 187 (“Finlay”).
(l)It is a relevant factor against the exercise of the discretion that the defendant was unaware of and had no reason to expect that a writ had been issued against them: Madgwicks at 7; Kleinwort at 623–4).
(m)The lapse of time is itself generally to be regarded as prejudicial to the defendant (Madgwicks at 7; Finlay at 188). In this contest, the relevant delay is to be measured from the time at which the plaintiff’s cause of action arose (Tyson v Morgan [200] 1 Qd R 100 at 104.50);
(n)Any delay in making the application to extend the time for service of the writ is a relevant factor against the exercise of the discretion (Finlay at 187); delay preceding (as well as following) the issue of the writ is material (Soper at 953);
(o)The expiration of the limitation period will not in itself constitute a good reason for extending the validity of the writ (Finlay at 187), although it is relevant (Soper at 952); and
(p)It may be appropriate to have regard to the balance of hardship: Kleinwort at 622; Van Leer Australia Pty Ltd v Palace Shipping KK [1981] HCA 11; (1981) 180 CLR 337 at 343 and 346 (“Van Leer”) (adopting the approach of Bray CJ in Victa Ltd v Johnson (1975) 10 SASR 496 at 502 (“Victa”)).
There have been no attempts by the plaintiff to serve the writ. This is an application on the basis that there is some ‘other good reason’ for the plaintiff to obtain an extension of the validity of the writ.
The plaintiff submits that the ‘good reason’ to extend the writ is to enable the plaintiff to obtain further expert opinion to determine whether she has a viable legal claim.
It is well known that medical negligence matters are likely to be complex and may require reports from experts in numerous different disciplines. It is also well known that the relevant issues may not always be immediately apparent. It might only be after obtaining an initial opinion that a relevant line of inquiry becomes evident.
Such is the case in this matter, where although various opinions from experts have been sought, further evidence is required before the plaintiff can assess her prospects of success.
In medical negligence claims, the limitation period of three years can readily expire prior to all investigations being complete. It may then be necessary for a plaintiff to preserve his or her rights by issuing a generally endorsed writ, while investigations continue.
It may also be the case that the period of 12 months in which to serve the writ is insufficient to complete those investigations. In those circumstances it is appropriate to seek an extension of the validity of the writ and, if the appropriate grounds are made out, for the Court to exercise its discretion to extend the writ.
I am concerned to ensure that there does not develop an assumption amongst legal practitioners that an application for an extension of validity of the writ will automatically be granted by this Court.
The fact that the application was filed at 3.33pm on the day that the writ expired suggests that there may have been a somewhat presumptive view taken as to the likelihood of an extension of time being granted. Given the date and time of the filing of the application, there was no prospect that the application could be dealt with prior to the expiry of the writ, thus removing from the plaintiff the option, in the event that the application was not granted, of serving her writ before it became stale.
The plaintiff retained her solicitor in June 2017. Her injury occurred in or around February 2016. I make no finding in this matter as to whether her cause of action arose at that time, or whether it was necessary for a writ to be issued in February 2019 to preserve her rights pursuant to the Limitation of Actions Act 1958 (Vic).
Her solicitor considered it was appropriate to file a writ on 21 February 2019. Having formed this view, her solicitor should have apprehended that the period in which investigations of the claim would need to be completed was around 32 months, being 20 months between the date the plaintiff retained her solicitors and the date the writ was filed, and 12 months from the date of filing the writ before it would have to be served.
That investigation would necessarily involve obtaining medical records and scans, reviewing those records, identifying appropriate experts, obtaining expert opinions, reviewing those opinions and, potentially seeking advice from counsel, and drawing pleadings. Identifying and retaining an appropriate expert can take some time, and once retained it can be many months before an expert provides a report.
At any of those stages, unavoidable delays can occur. It is for this reason that it is imperative that a claim such as the plaintiff’s progresses promptly.
The affidavit material in support of the plaintiff’s application is confidential, as it discloses aspects of the plaintiff’s case which might not ultimately form part of her legal claim.
However I am satisfied that the plaintiff is not yet in a position to determine whether her claim has reasonable prospects of success.
I consider that determining whether there is medical evidence to support a finding of liability and causation in her claim is an appropriate part of preparing her claim and that without that information she may not be able to satisfy her obligations pursuant to the Civil Procedure Act2010 (Vic) (‘Civil Procedure Act’) that she has a proper basis for bringing her claim.
The overarching objective of the Civil Procedure Act is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Proceeding with a claim that is not founded on evidence and is doomed to fail or be withdrawn would not be consistent with those objectives. It would incur unnecessary costs for both plaintiff and the defendant, as well as place a burden on Court resources and potentially cause unnecessary distress for the individual doctors involved with the plaintiff’s care at the defendant hospital who believe they are facing a civil action, only to have it subsequently withdrawn.
This does not mean that a plaintiff can take all the time she pleases to investigate her claim, nor does it mean that every aspect of liability and causation needs to be thoroughly exhausted before she ought be required to elect to either proceed, or allow her writ to go stale. The Court can and will consider the circumstances of each case on its merits and exercise its discretion appropriately.
In this case I am particularly troubled by two lengthy periods of delay. Firstly, I am concerned about a period of eight months between when the solicitor for the plaintiff obtained the plaintiff’s medical records, and when they reviewed those records. There is no explanation provided and the solicitor notes that this delay was regrettable.
Secondly, I am troubled by the periods between the solicitor reviewing the medical records in July 2018, identifying in February 2019 that certain records were missing, and obtaining those records in May 2019. This delay meant that expert opinion on those records could not be obtained until after May 2019, nearly a year after the medical records were obtained.
On the evidence before me it appears that at least part of this second delay was due to the defendant not providing those medical records at the time of the initial request, and subsequently delaying the provision of said records despite repeated follow up requests.
Were it not for the fact that part of the delay in progressing this case appears to rest at the feet of the defendant, I would be inclined to dismiss the application, notwithstanding that, because the application has been brought so late, the plaintiff would be shut out from serving her writ should she have chosen to do so.
Parliament has set limitation periods for the time in which claims must be filed, and the rules of the Court establish the time in which they must be served.
If practitioners routinely find that they are unable to comply with the periods set, then work practices must be examined and, if necessary, changed. A period of 32 months should, save in the most exceptional circumstances, be sufficient to investigate a personal injury claim of this nature. If it is not, a timely application to extend the period of validity of writ should be brought which preserves the plaintiff’s options in the event that the application is not granted.
In the circumstances of this case I am satisfied that it is appropriate to extend the validity of the writ for six months from 21 February 2020.
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