Allen v ACT

[2025] ACTSC 48

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Allen v ACT

Citation: 

[2025] ACTSC 48

Hearing Date: 

21 February 2025

Decision Date: 

21 February 2025

Before:

McCallum CJ

Decision:

(1) Proceedings stayed for a period of six months until 21 August 2025 to allow the parties to comply with the requirements of ch 5 of the Civil Law (Wrongs) Act 2002 (ACT).

(2)    The costs of the application in proceeding are cost in the cause.

Catchwords: 

CIVIL PROCEDURE – Originating Claim – claim for damages for medical negligence – where proceedings commenced before plaintiff had complied with the requirements of Ch 5 of the Civil Law (Wrongs) Act 2002 (ACT) – where plaintiff has complex medical condition requiring further surgery – application for stay of proceedings pending completion of the required steps

Legislation Cited: 

Civil Law (Wrongs) Act 2002 (ACT), ch 5, s 79

Cases Cited: 

Maletic v Calvary Healthcare ACT Limited [2022] ACTSC 231

Parties: 

Joy Allen ( Plaintiff)

Australian Capital Territory ( Defendant)

Representation: 

Counsel

A Porthouse ( Plaintiff)

B Stoney ( Defendant)

Solicitors

Longton Compensation Lawyers ( Plaintiff)

ACT Government Solicitor ( Defendant)

File Number:

SC 365 of 2024

McCALLUM CJ:       

EX TEMPORE REASONS (REVISED)

1․The plaintiff in these proceedings seeks damages for medical negligence arising out of two separate incidents of spinal surgery performed in the Australian Capital Territory, the first in 2019 and the second in 2021. The defendant has filed an application in proceeding seeking a stay of the proceedings to allow the parties to comply with the requirements of ch 5 of the Civil Law (Wrongs) Act 2002 (ACT).

2․I had occasion to consider a similar application in the matter of Maletic v Calvary Healthcare ACT Limited [2022] ACTSC 231. In that decision, I noted that the Civil Law (Wrongs) Act requires a claimant, before commencing proceedings, to undertake a number of steps. Ordinarily those steps would be taken as a predicate to the commencement of proceedings, failing which the plaintiff would need to seek leave to commence the proceedings. That is the effect of s 79 of the Civil Law (Wrongs) Act, which provides that the court on application by a claimant may give leave to the claimant to begin proceedings despite non-compliance with ch 5 if satisfied that there is an urgent need to begin the proceeding.

3․In the present case, as in Maletic, the originating claim or statement of claim was filed without any such application for leave having been made and the defendant thereupon lodged its application seeking to have the proceedings stayed for a period of six months to allow the complainant to comply with the requirements of ch 5.

4․The period of six months allowed under the Civil Law (Wrongs) Act for the parties to exchange information and explore the possibility of resolving proceedings prior to the commencement of proceedings is a paradigm. Of course, like any paradigm, it is one that cannot always be met. The evidence before me shows that the circumstances of the plaintiff’s surgery in these proceedings are complex and that she still faces not only the prospect of further surgery (for which she is currently on a waiting list) but also the need to await the resolution or stabilisation of her medical condition following that surgery. In the circumstances of this case, it is clear that the proceedings should be stayed to allow the steps under ch 5 to be explored.

5․I am grateful to the parties for adhering to the expectations of the Court set out in Maletic and putting that material before the Court to enable this assessment to be undertaken by the Court.

Orders

6․For those reasons, I make the orders set out in the proposed consent orders filed by the parties with the exception that I will change the date in order 1 to 21 August 2025: 

(1)Proceedings stayed for a period of six months until 21 August 2025 to allow the parties to comply with the requirements of ch 5 of the Civil Law (Wrongs) Act 2002 (ACT).

(2)The cost of the application in proceedings are cost in the cause.

(3)The defendant is to file and serve its defence on or before 18 September 2025.

(4)List the matter in the civil applications list before the Registrar at 9:45am on 26 September 2025.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: