Cook-Bateman v Adham [2025] ACTSC 173

1. The plaintiff seeks leave, nunc pro tunc, to commence proceedings for medical negligence against the defendant. The application invokes ss 59 and/or 79 of the Civil Law (Wrongs Act) 2002 (ACT) (Wrongs Act).

2. In brief, on 17 August 2015, the plaintiff’s rectum was perforated during surgery that was performed by the defendant for endometriosis. Six years later, in August 2021, as a result of watching the ABC 730 Report on television, the plaintiff became aware of other claims that had been made against the defendant for medical negligence. The plaintiff obtained legal advice. On 23 August 2021, the plaintiff’s legal representative served a Personal Injury Claim Notice (PICN) on the defendant. On 9 August 2024, the plaintiff filed a Statement of Claim, which contains allegations of medical negligence and breach of contract against the defendant.

3. I was informed by the parties that there is a dispute about whether the Statement of Claim was filed outside the period provided by s 16B of the Limitation Act 1985 (ACT). That issue, which raises novel questions about the proper construction of s 16B, is not before me.

4. Section 51(3) of the Wrongs Act required the plaintiff to serve the PICN by no later than May 2016 (being 9 months after the onset of symptoms of her injury). Section 59(1) of the Wrongs Act provides that the claimant “cannot proceed further with the claim” unless the respondent waives non-compliance (s 59(1)(b)); or the Court authorises the claimant to proceed further despite the non-compliance (s 59(1)(c)). As the defendant has not waived the plaintiff’s non-compliance, the plaintiff cannot proceed further with the claim unless the Court authorises her to do so. Further, because of the limitation issue, there is now plainly an urgent need for the plaintiff to begin the proceeding before completing the pre-court procedures under Ch 5 of the Wrongs Act.

5. It is common ground that the Court should be guided by the interests of justice in determining whether to grant leave under s 59 and/or ss 79 of the Wrongs Act. Counsel for the defendant provided helpful written submissions which listed out the following considerations as relevant to this determination: (i) Whether the granting of the authorisation would be futile; (ii) The length of the delay; (iii) The reasons of the delay; (iv) The prejudice to the plaintiff if authorisation is not given; and (v) The prejudice to the defendant if authorisation is given. See, by analogy, Dordevic v Moore [2017] ACTSC 320 at [59]; Cook v Nominal Defendant [2015] ACTSC 278 at [27] – [29].

6. Of course, the above is not an exclusive list of considerations, and other matters may may be relevant in other cases. Counsel for the plaintiff did not suggest that any other matters are relevant to the determination of the interests of justice in the present case.

7. As to those considerations, in its written submissions, the defendant submitted that the granting of leave would be futile, because the proceedings are time barred by s 16B in any event. The defendant submitted that because the proceedings are time barred, there is no prejudice to the plaintiff in refusing the application. The defendant further submitted that the length of the delay (over five years after the date required) should weigh against the exercise of the discretion in favour of the plaintiff, particularly as the defendant has suffered actual prejudice by reason of the delay in the notification (in particular, in conducting early investigations, and as a result of the unavailability of clinical notes from many of the plaintiff’s treating doctors). Finally, the defendant submitted that the plaintiff’s explanation for the delay (that is, that she was unaware of a possible claim for negligence) should not be given weight in circumstances where that evidence is in the form of assertions by way of information and belief from the plaintiff’s solicitor, and does not include evidence of the plaintiff herself.

8. In oral submissions, counsel for the defendant also submitted that the Court should have regard to the delay that has been occasioned by the plaintiff since the PICN was served in August 2021. He contended that the plaintiff has not provided an adequate explanation for the further delay in filing the Statement of Claim and/ or in seeking the Court’s leave to proceed despite the breach of s 51 of the Wrongs Act.

9. After carefully considering the defendant’s submissions, I have determined that it is in the interests of justice to grant the leave sought by the plaintiff. My reasons for so concluding are set out below.

Relevant provisions

10. The relevant provisions of the Wrongs Act have been comprehensively considered, in particular by McCallum CJ in Ruspandini v Summernats Pty Ltd (No 2) [2025] ACTSC 171 and in Rees-Wlodek v Calvary Healthcare ACT Ltd [2025] ACTSC 162.

11. For present purposes, it is only necessary to note the following: (i) Section 51 of the Wrongs Act requires a claimant to give written notice of a claim (the PICN) within a specified period; (ii) Section 59 of the Wrongs Act provides that if a claimant does not give a complying PICN, the claimant cannot “proceed further with the claim” unless the respondent gives notice that the claim is complying or waives any noncompliance, or the court declares that the claimant “has remedied the noncompliance” or “authorises the claimant to proceed further with the claim despite the noncompliance”; (iii) Various provisions in Ch 5 of the Wrongs Act impose further duties on the claimant, the respondent, other respondents and contributors. For example, a respondent or a contributor must provide a response to the PICN (ss 54 and 58); a claimant must give a respondent copies of various documents in the claimant’s possession and “information reasonably requested by the respondent” concerning a range of specified matters (s 64); a claimant must comply with a reasonable request by a respondent to undergo, at the respondent’s request, a medical examination or an assessment of cognitive, functional or vocational capacity (s 67); and a respondent must give the claimant copies of specified documents in the respondent’s possession (s 69). Detailed provision is made for documents the subject of client legal privilege and suspected fraud (ss 72 and 73); (iv) Section 79(1) of the Wrongs Act states that the court may “give leave to the claimant to begin a proceeding in the court for damages based on a liability for personal injury despite noncompliance with this chapter if the court is satisfied there is an urgent need to begin the proceeding”.

12. As McCallum CJ held in Ruspandini at [18], the purpose of these provisions is: … to create a regime that would serve to resolve claims for damages for personal injury in a manner that would avoid the cost and delays that attend the adversarial system of justice. The obligations of disclosure, cooperation and attempted resolution imposed by Ch 5 are plainly calculated to be less expensive and more efficient than proceedings in court. See also Cleary v Rinaudo [2013] ACTCA 32; 8 ACTLR 71 at [49].

13. Nevertheless, some aspects of the application of the provisions are not straightforward. In particular, whilst s 51 of the Wrongs Act “appears to suggest that the only requirement of a complainant prior to the commencement of legal proceedings is to serve a complying notice of claim”, the provision in s 79(1) for the court to grant leave to a claimant to commence proceedings “despite noncompliance with [Ch 5 of the Wrongs Act]” suggests that “Parliament intended to constrain the commencement of proceedings before all of those steps have been completed (‘despite non-compliance with this chapter’)”: Rees- Wlodek v Calvary Healthcare ACT Limited [2025] ACTSC 162 at [4].

14. Reading the provisions consistently with the purpose described above, in Ruspandini, McCallum CJ held that “a claimant who wishes to begin legal proceedings ‘despite noncompliance’ with the Ch 5 procedures requires leave under s 79(1) of the [Wrongs Act] to begin the proceedings”: Ruspandini at [20].

Determination as to leave

15. As outlined above, the plaintiff has issued a PICN, but did so after significantly after the expiry of the period required under s 51 of the Wrongs Act. As the defendant has not waived non-compliance, the plaintiff requires the authorisation of the Court before she can proceed further with her claim. Further, as other provisions of Ch 5 of the Wrongs Act have not yet been complied with, the plaintiff requires leave nunc pro tunc to permit the filing of her Statement of Claim.

16. The plaintiff should be granted the authorisation and the leave sought for the following reasons.

17. As to urgency: because there is an issue as to whether the claim is statute-barred, there is plainly an urgent need to begin the proceeding. That is the primary consideration under s 79.

18. As to futility: it is not appropriate for me to determine the limitation question in these proceedings. As counsel for the defendant frankly acknowledged, the question of statutory construction which that argument raises has not been determined by this Court. As s 16B is unique to this jurisdiction, limitation authorities from other Australian jurisdictions will not assist. I am not satisfied that the granting of the application will be futile.

19. As to the prejudice to the plaintiff: As I am not satisfied that the granting of the application will be futile, it follows that the plaintiff will suffer real and irremediable prejudice if the application is not granted. The effect of refusing to grant leave would be that the plaintiff’s proceedings would come to an end.

20. As to the reasons for the delay: The defendant’s counsel properly accepted that a plaintiff’s ignorance of possible negligence on the part of a defendant would be a compelling matter favouring a grant of leave. As noted above, the defendant’s primary contention in this respect was that the plaintiff had not established that she was ignorant of a possible claim.

21. The plaintiff’s solicitor has explained that the plaintiff was not aware of the possible claim for negligence until she viewed the ABC program in August 2021. The plaintiff was not put on notice by the hospital, or the defendant, of any potential claim for negligence. As these are interlocutory proceedings, hearsay evidence is admissible. There is no evidence before me that suggests that the evidence of the plaintiff’s solicitor is untrue. Importantly, the nature of the injury is not one which would necessarily put a plaintiff on notice of possible negligence. All surgeries carry unforeseen risks. Whilst the plaintiff was aware that her rectum had been perforated during surgery, she had no basis to infer negligence from this fact alone.

22. Length of the delay and prejudice to the defendant: The length of the delay is substantial. However, I am not satisfied that the defendant has suffered from irremediable prejudice as a result of that delay. The defendant has provided evidence that records of the plaintiff’s previous treating doctors cannot now be obtained. However, the relevance of these documents is at present unclear. Further, at least some of those records (particularly those dating back to 1991/ 1992) would be unlikely to have been available even if the PICN had been served within time.

23. As the defendant’s counsel submitted, there has been further delay since the service of the PICN. Whilst the focus of the decision granting leave will usually be on the delay in filing a PICN, lengthy and unexplained delay after a PICN will not be irrelevant to the grant of leave. However, in the present case, there is an explanation for the delay. As the plaintiff’s solicitor’s affidavit makes clear, the investigation of the plaintiff’s claim was not straightforward, and required the obtaining of clinical records and the briefing of experts before the proceedings could be commenced. Whilst it may be that some of these matters could have been attended to more expeditiously, I do not consider that the delay since the PICN is such as to weigh significantly against a grant of leave.

24. I have carefully weighed each of these matters. Ultimately, the matter which has been the most determinative to my determination has been the prejudice that would be occasioned to the plaintiff if leave is not granted. Section 51 should not operate as a de facto limitation period.

25. The parties agreed that if I did not accept the defendant’s primary position, that is, that leave should be refused, I should make orders granting leave under both ss 59 and 79 of the Wrongs Act (the latter, to ensure that any the claim may proceed despite any breaches of other provisions of Part 5 of the Wrongs Act by either party). Section 59 does not contemplate a grant of leave but confers power to authorise continuation with the pre-court procedures. As it was common ground that I should make that order, it is appropriate to do so. Stay

26. The parties also agreed that I should stay the proceedings for a period of 6 months to enable the parties to comply with their respective obligations under Ch 5 of the Wrongs Act, with liberty to apply in the event that further directions or determinations from the Court are required.

27. Where leave is granted under s 79(1) of the Wrongs Act, the proceedings are automatically stayed “until the claimant complies with this chapter or the proceeding is discontinued or otherwise ends”, unless the court is satisfied that (i) the claimant is suffering from a terminal condition; (ii) the trial of the proceeding should be expedited; and (iii) the court orders the proceeding be given priority in the allocation of a trial date.

28. In oral submissions, counsel for the defendant accepted that the making of an order for a stay may be “otiose”, but nonetheless submitted that a stay should be ordered so as to provide certainty for the future conduct of the matter. The plaintiff agreed that it would be appropriate for a 6 month stay to be ordered.

29. The difficulty with the automatic stay under s 79(3) is that it only operates until the claimant complies with Ch 5, even though the stay is consequent upon non-compliance with Ch 5 by either party. The automatic stay does not appear to apply whilst it is only the respondent who is in breach of obligations under the Chapter. Many of the obligations on the claimant only arise upon a request by a respondent (for example, to provide information reasonably requested by the respondent; or to undergo a medical examination at the respondent’s request). In these circumstances, there may be considerable uncertainty as to precisely when the automatic stay will come to an end.

30. In these circumstances, I consider it appropriate to accede to the joint position of the parties, and to order that the proceedings be stayed for a period of 6 months. However, I strongly encourage the parties to comply with their Ch 5 obligations as expeditiously as possible. Once the Ch 5 procedures have been complied with, the proceedings should be immediately relisted. To this end, I will grant the parties liberty to apply on 48 hours’ notice.

Costs

31. The defendant submitted that the appropriate order is for the plaintiff to pay the defendant’s costs of the application, with such costs not to be assessed or payable until final orders are made in the proceeding.

32. The plaintiff submitted that the appropriate order is for costs to be reserved.

33. The appropriate order is for costs to be reserved. Orders

34. For the above reasons, the following orders are made: (1) Pursuant to s 59 of the Civil Law (Wrongs Act) 2002 (ACT), authorise the plaintiff to proceed further with the claim notwithstanding her failure to give a complying notice of claim. (2) Pursuant to s 79(1) of the Civil Law (Wrongs Act) 2002, I grant leave to the plaintiff nunc pro tunc to begin the proceedings notwithstanding non-compliance with the requirements of Ch 5 of the Civil Law (Wrongs Act) 2002. (3) I order that the proceedings be stayed for a period of six months. (4) The parties have liberty to apply to the court on 48 hours’ notice. (5) The proceedings are listed for mention before the Registrar on 7 November 2025.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate: H Clift Date: 2 May 2025