Royall v Croydon Hospital - [2013] VSC 453

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

---

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

---

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.

---

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…

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.

Continue reading Royall v Croydon Hospital

Details

AGLC: Royall v Croydon Hospital [2013] VSC 453
Case: [2013] VSC 453
Decision Date: 26 August 2013

CaseChat Overview and Summary

The plaintiff, Royall, brought an action against Croydon Hospital for negligence. The plaintiff had previously commenced a group proceeding against the same hospital for the same subject matter. The court was required to determine whether the second proceeding constituted an abuse of process or was vexatious, as well as whether it was permissible for two proceedings between the same parties in respect of the same subject matter to exist simultaneously. Additionally, the court had to decide whether a mistake in the naming of a defendant in the writ could be amended.

The court found that the second proceeding was not an abuse of process or vexatious, as the plaintiff had a legitimate interest in pursuing their claim. The court also held that it was permissible for two proceedings to be conducted in respect of the same subject matter between the same parties. Furthermore, the court allowed an amendment to the writ to correct the mistake in the naming of the defendant. The court's decision was based on the principles of case management and the need to ensure that justice was served in an efficient and effective manner.

The court ordered that the second proceeding could proceed, and that the amendment to the writ be allowed. The court emphasised the importance of ensuring that the interests of justice were served, and that the proceedings were conducted in a manner that was fair and efficient. The court also highlighted the need for parties to take care in the drafting of their writs to avoid mistakes in the naming of defendants. The decision in this case provides guidance for parties and their legal representatives in relation to the conduct of proceedings in the Supreme Court of New South Wales.

Orders