Royall v Croydon Hospital
[2013] VSC 453
•26 August 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2011 06574
| MEDA ROYALL | Plaintiff |
| v | |
| CROYDON HOSPITAL PTY LTD DR MARK SCHULBERG DR JAMES PETERS MEDICAL BOARD OF AUSTRALIA | First named Defendant Secondnamed Defendant Thirdnamed Defendant Fourthnamed Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 August 2013 | |
DATE OF JUDGMENT: | 26 August 2013 | |
CASE MAY BE CITED AS: | Royall v Croydon Hospital & Ors | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 453 | |
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PRACTICE AND PROCEDURE - Negligence – Whether proceeding an abuse of process – Whether proceeding vexatious – Second group proceeding in respect of same subject matter – Whether two proceedings between same parties in respect of same subject matter – Case management.
PRACTICE AND PROCEDURE – Incorrect defendant – Whether mistake in name of party – Amendment.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A.D.B. Ingram | Melbourne Injury Lawyers |
| For the First and Second Defendants | Mr P. J. Riordan SC with Mr D. Wallis | Tress Cox Lawyers |
| For the Third Defendant | No appearance | |
| For the Fourth Defendant | Mr C. Archibald | Norton Rose Fulbright Australia |
HIS HONOUR:
In this proceeding, the plaintiff alleges that she contracted hepatitis C as a result of treatment she received at the Croydon Day Surgery on 16 January 2009. On 5 December 2011, the plaintiff filed a generally endorsed writ claiming damages from the defendants in respect of her contraction of the hepatitis C virus. The first defendant is sued as the entity that carried on the Croydon Day Surgery in 2009. The second defendant is alleged to be the medical practitioner who conducted the Croydon Day Surgery, and a person who was responsible for supervising the actions of the third defendant. The third defendant is alleged to be the anaesthetist who infected the plaintiff with the hepatitis C virus. The fourth defendant is alleged to be the body corporate responsible for the registration of the third defendant, and also responsible for assessing his fitness to practice.
On 5 December 2012, Lansdowne AsJ extended the period of validity for service of the writ in this proceeding to 5 July 2013. On 24 June 2013, the first and second defendants filed conditional appearances. On 15 July 2013, the fourth defendant filed a conditional appearance.
On 15 May 2012, some five months after the plaintiff commenced the current proceeding, a group proceeding was commenced pursuant to Part 4A of the Supreme Court Act 1986.[1] In the group proceeding, the group members are defined to be the plaintiff
and all other women who:
(a)between January 2008 and mid December 2009 (‘the period’) underwent a procedure for termination of pregnancy (‘termination procedure’) at the Croydon Day Surgery located at 411-415 Dorset Road, Croydon, in the State of Victoria (‘the surgery’); and
(b)for the purposes of the termination procedure at the surgery were administered anaesthetics by Dr James Latham Peters; and
(c)since undergoing the termination procedure at the surgery have for the first time been diagnosed as having hepatitis C or found to be carrying hepatitis C antibodies.
[1]A v James Latham Peters & Ors (S CI 2012 2791).
The first defendant in the group proceeding is the third defendant in the present proceeding. The second defendant in the group proceeding is the second defendant in the present proceeding. The third defendant in the group proceeding is the Australian Health Practitioner Regulation Agency (“AHPRA”). AHPRA is sued as the body which came into existence on 1 July 2010, assuming the assets and liabilities of the Medical Practitioners Board of Victoria.
On 22 March 2013, in the group proceeding, the Court ordered, pursuant to s 33J of the Supreme Court Act, that notice be given to group members of the date by which they must opt out if they did not wish to be bound by any order or judgment in the group proceeding. The date for group members to opt out was 30 May 2013. The plaintiff in the present proceeding did not opt out of the group proceeding.
On 10 May 2013, in the group proceeding, the Court gave leave to AHPRA to file and serve a third party notice against Carol Ann Richards, the first defendant in the present proceeding (Croydon Hospital Pty Ltd), and the Secretary of the Department of Health.
On 14 June 2013, the plaintiff in the group proceeding was given leave to discontinue against Dr Peters (the third defendant in the present proceeding). On the same day, timetabling orders were made in the group proceeding, a mediation was ordered to be completed by 31 October 2013 and the group proceeding was fixed for trial on 3 March 2014 with an estimate of 30 sitting days.
Before the Court this morning are three summonses:
(a)a summons filed 29 July 2013 on behalf of the fourth defendant, in which the fourth defendant seeks that the writ and/or its service upon the fourth defendant be set aside; alternatively that the proceeding against the fourth defendant be permanently stayed or dismissed;
(b)a summons filed 15 August 2013 on behalf of the first and second defendants that seeks orders that the proceeding against those defendants be permanently stayed or dismissed; and
(c)a summons filed 22 August 2013 on behalf of the plaintiff seeking an order in the group proceeding extending the date for group members to opt out until 30 August 2013.
The grounds upon which the fourth defendant seeks the orders sought in its summons are:
(a)the fourth defendant was never a body corporate pursuant to the Medical Practice Act 1994 or responsible for the registration of the third defendant at any time before 1 July 2010;
(b)the writ does not disclose a cause of action or include (pursuant to rule 5.04(2)(b)) a statement sufficient to give with reasonable particularity notice of the nature of the claim against the fourth defendant; and
(c)the plaintiff is a group member in [the group proceeding].
The basis for the orders sought by the first and second defendants in their summons is that “the plaintiff is a group member in [the group proceeding] who did not file an opt out notice … by 30 May 2013”.
In Oliver & Anor v Commonwealth Bank of Australia (No 2),[2] Perram J said:
“It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue”: Henry v Henry (1996) 185 CLR 571 at 591 per Dawson, Gaudron, McHugh and Gummow JJ. Consequently, it lies upon the party bringing the second action to show that is not so: Moore v Inglis(1976) 9 ALR 509 at 514 per Mason J, citing the dissenting judgment of Lord Esher MR in The Christiansborg (1885) 10 PD 141 at 148; Henry v Henry at 591 (footnote 66).
Representative proceedings give rise to complexities in this area because of the possibility that proceedings by the representatives, on the one hand, and separate proceedings brought by those represented, on the other, may infringe the above principle. In this court representative proceedings operate on an “opt-out” basis; that is, persons remain in the class of those represented unless they take the affirmative step of indicating they do not wish to be in that class: Federal Court of Australia Act 1976 (Cth), s 33J(2). Even though that is the case, however, class members are not parties to the proceeding unless they choose to be one of the nominated representative parties: s 33C(1); King v AG Australia Holdings Ltd (formerly GIO Australia Holdings Ltd)[2002] FCA 1560 at [9] per Moore J; Courtney v Medtel Pty Ltd (2002) 122 FCR 168 at 179 [35]–[36] per Sackville J.
Consequently, the view in this court is that the existence of proceedings by a class member (not being a representative party) at the same time as a representative proceeding in which that class member is represented is not necessarily an immediate abuse of process. In Johnson Tiles Pty Ltd v Esso Australia Ltd[1999] FCA 56 per Merkel J, albeit in the context of competing representative proceedings, thought that at least at an early stage the Court should determine which of the proceedings should be permitted and it was not necessarily the case that the proceeding which was filed first should be the proceeding which would go forward: see [14]–[15]. On the other hand, Lehane J thought that, after a party had failed to opt out of a representative proceeding, it was likely that the court would prevent further pursuit of presently subsisting and overlapping ordinary proceedings: Bright v Femcare Ltd(2000) 175 ALR 50 at 83 [101]; [2000] FCA 742 at [101]. Considerations of commonsense and these two decisions suggest, therefore, that it is prima facie vexatious and oppressive for a person who has not opted out of a representative proceeding (when the opt-out time has passed) to maintain ordinary proceedings against the same respondent dealing with substantially the same subject matter. I so conclude.[3]
[2](2012) 205 FCR 540.
[3]Ibid, 541-2 [1]-[3].
With respect, I agree with Perram J.[4]
[4]See further, Clarke & Ors v Great Southern Finance Pty Ltd & Ors (No 2) [2012] VSC 338 (Croft J).
In her affidavit in support of her application for an extension of the time within which to opt out of the group proceeding, the plaintiff details various communications she had with the solicitors acting for the plaintiff in the group proceeding. The plaintiff deposes:
In approximately mid February 2011 I recall receiving a further letter from Slater & Gordon Lawyers advising me that given the number of women who had been infected with hepatitis C at the Croydon Day Surgery, it was likely that proceedings would be brought as a class action. I was annoyed with this letter as I had previously provided instructions that I did not wish to be represented by them and I telephoned the offices of Slater & Gordon and reiterated my instructions that I did not wish to be represented by them and wished to opt out of the class action.
As I had provided clear instructions to Slater & Gordon Lawyers, it was my belief that I had met any obligation that was upon me in respect of opting out of the class action. I did not know that I was required to complete any other form and it was my belief that Slater & Gordon Lawyers acting upon my instructions would have filed an ‘opt out’ notice if required.
Furthermore I did not receive any further letters from Slater & Gordon advising me that a class action was to be brought and I was not informed that I would need to ‘opt out’ of the class action. I did, however, receive a letter from Slater & Gordon stating that they were no longer acting on my behalf.
I did not see any published notification of the requirement to ‘opt out’ myself.[5]
[5]Plaintiff’s affidavit sworn 22 August 2013 [11]-[14].
Efficient case management practices and the principles underpinning the Civil Procedure Act 2010 might tell in favour of the plaintiff remaining a group member at the expense of being permitted to pursue her own individual action. If the plaintiff had issued this proceeding after the opt out date in the group proceeding had passed, I might have taken this step. However, in the circumstances of this case, I do not think it appropriate to override the plaintiff’s choice of legal representation made prior to the commencement of the group proceeding.
Ideally, one would not want underlying liability issues that are common to the present proceeding and the group proceeding to be litigated twice. While the present proceeding is at an early stage, and not moving with any great pace, it remains theoretically possible that the timetabling of its interlocutory processes could be managed so that the present proceeding is heard at the same time and by the same judge as the group proceeding.
While the plaintiff is a group member in the group proceeding and while it is vexatious in the technical sense for her to remain so when she has her own individual action, I do not propose to accede to the defendants’ applications to dismiss or stay the present proceeding on that basis. As I have said above, in my view, the plaintiff is entitled to maintain her individual proceeding (issued earlier in time) with lawyers of her choice acting for her.
The issue of vexatiousness may be remedied by an appropriate order being made in the group proceeding. One possibility is extending the date for the plaintiff to opt out to 30 August 2013 as suggested by the plaintiff. A second possibility is to redefine the group members to exclude from the group any women who had, as at 15 May 2012, commenced an individual proceeding relating to the contraction of hepatitis C from treatment received at the Croydon Day Surgery. A third possibility would be to make an order under ss 33KA and/or 33ZF of the Supreme Court Act that the plaintiff cease to be a member of the group. Since the order is to be made in the group proceeding, in addition to the parties in the present proceeding, I will hear the parties in the group proceeding as to the appropriate form of order – the parties in the group proceeding being represented before me this morning in other applications.
I turn now to the fourth defendant’s complaints concerning:
(a)the fact that it was never responsible for the registration of the third defendant; and
(b)the lack of particularity in the general endorsement.[6]
[6]Cf rule 5.04(1)(b) of the Supreme Court (General Civil Procedure) Rules 2005.
In support of the orders it seeks in its summons, the fourth defendant relies upon an affidavit of Nicole Joy Wearne sworn 29 July 2013. In that affidavit, Ms Wearne deposes:
Prior to 1 July 2010, by operation of the Medical Practice Act 1994, the Medical Practitioners Board of Victoria (the MPBV) was responsible for the registration of medical practitioners in Victoria and for the assessment of their fitness to practice.
On 1 July 2010:
(a)the MPBV was abolished pursuant to s 29 of the Statute Law Amendment (National Health Practitioner Regulation) Act 2010 (Vic);
(b)the fourth defendant was established pursuant to s 31(1) of the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) (the HPR National Law); and
(c)the Australian Health Practitioner Regulation Agency (AHPRA) was established pursuant to s 23 of the HPR National Law.
Pursuant to s 295(1)(a) of the HPR National Law, the liabilities of the MPBV were taken to be of AHPRA.[7]
[7]Paragraphs [9]-[11].
There is no doubt that in naming the fourth defendant, the plaintiff has identified the wrong body responsible for the professional registration and supervision of the third defendant. Ms Wearne’s affidavit discloses this is so; the legislative framework discloses this is so; and the pleadings in the group proceeding disclose this is so. In the circumstances, I will grant leave to the plaintiff to amend her writ to name the correct fourth defendant, the Australian Health Practitioner Regulation Agency.
I turn now to the fourth defendant’s last point, the asserted inadequacy of the general endorsement. While the general endorsement is not a model of particularity in identifying the claim to be made against the fourth defendant, in my view it is sufficient to give notice with reasonable particularity of the nature of the claim. In any event, if it was necessary, I would exercise my discretion under rule 2.01 to permit an appropriate amendment of the general endorsement. I do not doubt that the fourth defendant understands the nature of the claim made against it by the plaintiff. In my view, the most appropriate course is to order the plaintiff to deliver a statement of claim. A statement of claim will set out the cause of action or causes of action relied upon by the plaintiff with greater particularity than a general endorsement.
Accordingly, and for these reasons:
(a)the applications by the defendants to dismiss or stay the proceeding, and the application by the fourth defendant to set aside the writ and/or its service upon the fourth defendant, will be dismissed;
(b)there will be an order in the group proceeding, the effect of which order will be that the group proceeding does not continue to be brought on behalf of the plaintiff; and
(c)there will be orders permitting the plaintiff to amend the name of the fourth defendant, and requiring the plaintiff to file and serve a statement of claim.
I will hear the parties further on the precise form of orders.
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