Waller v Flinders Medical Centre and Burns (No 1) No. DCCIV-98-1796

In Waller v Flinders Medical Centre and Burns (No 1), the plaintiff sought damages for medical negligence against the Flinders Medical Centre and Richard Burns. The plaintiff had initially commenced proceedings for pre-action discovery under Rule 60.01(1)(b) of the District Court Rules, but subsequently sought to amend the summons to pursue a substantive claim for damages. The defendants argued that the action was a nullity due to the improper use of the pre-action discovery procedure and the unauthorised joinder of Burns as a defendant. The court had to determine whether the defendants' application to strike out the proceedings and amend the summons should be allowed, and if so, on what terms.

The court held that while the use of the action for a substantive claim and the joinder of Burns without proper procedure were serious irregularities, they did not render the proceedings a nullity. Instead, the court could validate the proceedings under Rule 3.04(c) on certain conditions. The court revoked the earlier fiats that allowed these irregularities, validated the proceedings from the date the first statement of claim was served on 16 August 2001, and granted leave to amend the summons. The amendments to the summons were to relate back only to the date of service of the first statement of claim. The court also validated the joinder of Burns from the same date and allowed service of the amended summons to be dispensed with. The court further allowed Kenneth James Waller to be joined as a second plaintiff by consent.

The court dismissed the defendants' application but reserved the question of costs. It also made orders for the application of Rule 46A to all further pleadings, required the action to proceed to trial, and set a deadline for the amendments. The court reserved the costs of the plaintiff’s application and the amendments for further consideration.