Sawkins v Australian Capital Territory - [2023] ACTSC 73

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Sawkins v Australian Capital Territory
Citation:	[2023] ACTSC 73
Hearing Date:	10 March 2023
DecisionDate:	10 March 2023
Before:	Mossop J
Decision:	See [22]
Catchwords:	PRACTICE AND PROCEDURE – Application to rely on further expert reports, amend defence and to require experts to give evidence in conclave – where application made in close proximity to hearing – where further expert reports have caused defendants to abandon prior concession as to causation – where defendant had previously indicated that only further reports as to quantum would be sought – whether leave should be granted to allow reliance on further reports – application allowed – defendant to pay plaintiff’s costs of application on solicitor and client basis
Legislation Cited:	Court Procedures Rules 2006 (ACT), rr 507, 1611, 1205, 1211, 1241, 1401
Cases Cited:	Pryce v Dunlap [2016] ACTSC 338 Smith v Children Australia Inc [2022] ACTSC 310
Parties:	Robert Sawkins (Plaintiff) Australian Capital Territory (Defendant)
Representation:	Counsel D Hooke SC with K Kumar (Plaintiff) M Windsor SC (Defendant)
Solicitors United Legal (Plaintiff) ACT Government Solicitor (Defendant)
File Number:	SC 528 of 2021

MOSSOP J:

Introduction

This matter is a medical negligence claim listed for hearing on 20 March 2023 for five days. The matter was listed in July 2022 with the consent of the parties. One issue between the parties is whether the lumbar puncture procedure carried out on the plaintiff caused either a lumbar haematoma and a lower thoracic haematoma, or just a lumbar haematoma.

The matter before me involves two applications in proceeding made by the defendants. Both applications are opposed by the plaintiff. Those applications variously seek the various orders which may be summarised as follows:

A. Application in proceeding dated 13 February 2023

1. That the defendant be granted leave pursuant to r 1205(1)(g), or alternatively r 1241(3)(a) to rely on two reports:

a. Report of Professor Marcus Stoodley, dated 15 October 2022; and,

b. Report of Dr Scott Dunkley dated 5 January 2023.

2. That the defendant be granted leave to amend its defence pursuant to r 507.

B. Application in proceeding dated 6 March 2023

1. That the defendant be granted leave pursuant to r 1205(1)(g), or alternatively r 1241(3)(a) to rely on two supplementary medical reports:

a. Supplementary report of Professor Marcus Stoodley, dated 19 February 2022; and,

b. Supplementary report of Professor Neil Simon dated 3 February 2023.

2. That the court order that:

a. The experts variously give conclave evidence in different groups; and,

b. That the expert neurosurgeons attend a joint conference and be required to form a joint report.

As I understood the applications, the orders relating to the joint conference and the joint report were only required in the event that the additional medical reports were permitted to be relied upon.

These reasons are prepared in circumstances where it is necessary to urgently make a decision on the applications because the hearing date is only four business days away. They…

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: [2023] ACTSC 73
Decision Date: 10 March 2023

CaseChat Overview and Summary

In the case of Sawkins v Australian Capital Territory, the plaintiff, Sawkins, brought an action against the defendant, the Australian Capital Territory, alleging personal injury caused by a road traffic accident. The case was heard in the Federal Court of Australia, where Sawkins sought compensation for the injuries sustained. The defendant initially conceded to the causation of Sawkins' injuries but later sought to rely on additional expert reports that contradicted this earlier concession. The defendant also sought leave to amend its defence and to require experts to give evidence in conclave. The primary legal issue before the court was whether the defendant should be granted leave to rely on the further expert reports, amend its defence, and require experts to give evidence in conclave, particularly given the timing of the application which was made shortly before the hearing. The court had to consider the impact of the new reports on the earlier concession and whether the application was made in good faith and with a reasonable prospect of success.

The court carefully considered the circumstances surrounding the application, including the timing and the potential impact on the plaintiff. It was noted that the defendant had previously indicated that only further reports as to quantum would be sought, but the new reports fundamentally challenged the earlier concession regarding causation. The court balanced the need for a fair trial against the potential prejudice to the plaintiff if the application was allowed. Ultimately, the court found that the application should be granted as the defendant had a reasonable prospect of success and the application was made in good faith. The court also noted the importance of allowing the defendant to present its best case and the potential unfairness of not considering the new evidence. However, the defendant was ordered to pay the plaintiff’s costs of the application on a solicitor and client basis.

The court's decision highlighted the importance of timing and good faith in applications to amend defences and rely on additional expert evidence. The defendant's application was allowed, but the court emphasised the need for parties to act reasonably and in good faith, particularly when making applications close to the hearing date. The court's decision also underscored the importance of allowing parties to present their best case while ensuring that the opposing party is not unfairly prejudiced. The orders of the court included the allowance of the application on the terms that the defendant would pay the plaintiff’s costs of the application.

Orders

Orders of the court

See [22]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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