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1. On 1 May 2026, I made orders for the disposition of the plaintiffs’ application for leave to commence proceedings. I reserved the publication of my reasons which are set out below.

2. Adam Burgess died on 1 May 2017. Prior to his death, he was receiving treatment from persons including Dr David Hardman, who is the first defendant, and from other medical service providers at the Canberra Hospital.

3. These proceedings are brought by the wife and two daughters of Mr Burgess. The family asserts Mr Burgess received inadequate care from Dr Hardman and from the hospital and the inadequate care materially contributed to his death. They, in turn, each allege injury in the nature of psychological injury as a result of his untimely death and they claim damages as a result.

4. There is an inquest into the death of Mr Burgess that is continuing notwithstanding the ninth anniversary of his death has now passed.

5. The substantive proceedings were commenced with the filing of an originating claim and statement of claim on 20 October 2025.

6. The application before me is brought by the family and it was lodged on 6 February 2026. By this application, the family seek orders for leave to commence proceedings pursuant to s 79 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act), notwithstanding non-compliance with the pre-court procedures set out in ch 5 of that Act. They also seek a stay of the proceedings.

History of the proceedings to date

7. The applicants read an affidavit of Ahmad Awarki, solicitor, sworn on 5 February 2026. The defendants read an affidavit of Lisa Harrop, solicitor, affirmed on 29 April 2026.

8. Mr Awarki attests to the following relevant matters: (a) The basis of the claim is that Mr Burgess’ condition was misdiagnosed and he was subject to a surgical procedure in the form of bilateral first rib resections he did not require. The surgical procedure resulted in his death. (b) The ACT coroner is yet to finalise their findings. (c) The family (the first and third plaintiffs) retained their current solicitors in May 2023 and notifications pursuant to the CLW Act were issued in July 2023. (d) In November 2023, the defendants raised some non-compliance issues under ch 5 in relation to the claim notification. (e) The plaintiffs’ solicitors did not respond until almost two years later in September 2025. (f) After proceedings were commenced, the plaintiffs’ solicitors received correspondence from the defendants indicating they considered the first and third plaintiffs were still non-compliant with ch 5. (g) The second defendant did not provide instructions to his firm until 14 October 2025, and a personal injury claim notification was not issued on behalf of that client until March 2026. (h) The third plaintiff turned 18 on 23 October 2022 and proceedings were commenced prior to 23 October 2025 to avoid any limitation argument in relation to her claim.

9. Ms Harrop’s affidavit includes the following: (a) A notice of claim in relation to the second plaintiff was received on 26 March 2026. (b) The plaintiffs were non-compliant with their obligations under ch 5 when the originating process was filed. (c) The defendants have been deprived of the opportunity to fully investigate and potentially resolve the claim prior to the commencement of proceedings. (d) The coronial proceedings are yet to be finalised.

10. The application in proceeding was initially returnable on 27 March 2026 but it was adjourned by agreement to afford the defendants an opportunity to consider the plaintiffs’ recently filed affidavit evidence.

11. On 30 April 2026, the parties provided proposed consent orders for the disposition of the application and requested the orders be made in chambers. I declined to make in chambers orders and requested the parties appear before me to address some residual concerns I had about the status of the matter and the orders proposed. Is there a continuing non-compliance with ch 5?

12. I am satisfied there was a continuing non-compliance on the part of the plaintiffs with the requirements of ch 5 at the time the proceedings were commenced. The late service of the claim notification on behalf of the second defendant is of itself sufficient to demonstrate such non-compliance, noting it was only served on 26 March 2026. Was there an urgent need to commence proceedings in October 2025?

13. The question may be answered affirmatively noting the age of the third defendant and the operation of s 30 of the Limitation Act 1985 (ACT). Is it appropriate to grant leave to commence proceedings?

14. The decision whether to grant leave pursuant to s 79 of the Civil Law (Wrongs) Act is a discretionary exercise. In Maletic v Calvary Healthcare ACT Ltd [2022] ACTSC 231, in considering an application pursuant to s 79, McCallum CJ observed the urgency created by the imminent expiry of a limitation period was the type of situation that may warrant a grant of leave under s 79. The Chief Justice noted the legislative intent of the chapter was to constrain the commencement of proceedings in circumstances where there was not an urgent need to begin them. Her Honour noted, given the clear statutory obligation imposed on parties by s 5A of the Court Procedures Act 2004 (ACT) to facilitate the timely and efficient disposal of proceedings, and the purposes of ch 5 consistent with that obligation, such an order could not be made as a matter of formality by consent or short minutes. In summary, noting the obligations imposed upon parties by those provisions, it is necessary to demonstrate, notwithstanding a relevant non-compliance, it is in the interests of justice to give leave to commence proceedings.

15. In this case, in respect of the plaintiffs, there is a significant unexplained delay on the part of their legal advisers in prosecuting these claims. I accept there is an ongoing coronial inquest, but the parties have not addressed why it is continuing some nine years after Mr Burgess’ death, nor whether there is any clear indication as to when it may finish. They have also not explained the relationship, if any, between the protracted coronial process and their impaired capacity to comply with the Chapter 5 pre-court obligations.

16. The defendants’ solicitor attests to having “been deprived of the opportunity to fully investigate and potentially resolve the claim prior to the commencement of the proceedings as it ordinarily would be afforded in accordance with chapter 5 of the Act”. That statement is a little difficult to understand. The defendants have been on notice of the claims made by the first and third plaintiffs since October 2023. True it is they sought some further particularisation of the claim notification to which they received no response. Other than a single letter sent on 12 April 2024, they elected not to pursue a response. They did not seek to exercise the powers available to them under section 78 of the CLW Act to compel a response. To the extent the defendants have been deprived of the opportunity to fully investigate and potentially resolve the claim, it is in no small part a function of their own lack of forensic diligence.

17. Notwithstanding parties on both sides of the matter have not pursued the progression and resolution of these claims with any sign of alacrity, I consider it appropriate in the interests of justice to grant leave to commence proceedings retroactively – principally with a view to avoiding limitation issues that may otherwise arise.

18. The proposed form of consent orders deals also with the issue of a stay and seeks to align the stay of proceedings pursuant to s 79(2) with the conclusion of the coronial inquest. It is unclear to me why the two court processes cannot continue in tandem. The findings of the coroner have no binding effect for the purposes of these proceedings.

19. I asked the parties for an indication of the time required to address any residual non-compliance issues under ch 5. Having heard the submissions, I consider a stay of four months is appropriate.

Orders

20. I made the following orders: (1) Pursuant to s 79(1) of the Civil Law (Wrongs) Act 2002 (ACT), the plaintiffs are granted leave nunc pro tunc to commence proceedings on 20 October 2025. (2) Pursuant to s 79(2) of the Civil Law (Wrongs) Act 2002 (ACT), the proceedings are stayed until 1 September 2026. (3) The matter is listed for directions before the registrar at 9:30 am on 7 September 2026. (4) The costs of and incidental to the application are costs in the cause.

I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller.

Associate: Date: