Although this passage refers to the High Court's role as the final court of appeal, the observations have been treated as applicable to an intermediate court of appeal: Wykes v Samilk Pty Ltd [No 2], NSWCA, unreported, 18 August 1998, at 10. See also L Shaddock & Associates Pty Ltd v Council of the City of Parramatta [No 2] [1982] HCA 59; (1983) 151 CLR 590, at 594-597.

28. I will then give the plaintiff leave to file a further Notice of Discontinuance after I make the orders and, as these proceedings have been necessitated by the defendant's application, they should bear the costs.

1. The application itself is based on s 63 of the Health Act 1993 (ACT) (the Health Act). That section provides, that so far as is relevant for this purpose, the members of a clinical privileges committee are not personally liable for anything done or omitted to be done honestly and without recklessness in the exercise of a function under the Act.
2. There was, in these proceedings, no allegation of dishonesty or recklessness and the defendants contend, and the plaintiff appears to consent, at least does not oppose, that the proper defendant is not the members of the committee but the Territory, for s 63(3) provides that any civil liability that would otherwise attach to a member of a clinical privileges committee attaches to the Territory. The use of the word "attach" might suggest that, in fact, the liability has been transferred effectively to the Territory and that the members cannot be held liable in those circumstances.
3. Thus, Mr G McCarthy, who appears for the defendants, contends that the Territory should, at all relevant times, have been the defendant in the proceedings for the liability attaches to it and not to the individual members of the clinical privileges committee who were formerly named defendants.
4. This would not change the outcome of the proceedings, a relevant factor in all the circumstances, particularly as I had, I confess, assumed that the individually named defendants would have been indemnified by the Territory, and who were, at the hearing, represented by the ACT Government Solicitor. It will only change the name of the parties and, in compliance with s 63 of the Health Act, the actual person to whom the liability of costs that I had awarded actually attaches. Indeed, to that extent, it may be arguable that I could not make an award of costs against the named individual defendants if I were to give full effect to that section.
5. In this sense, there is some similarity between this application and the application of the inherent power of the court to substitute a party to ensure that the proper party is amenable to the court's order.
6. This can be seen in cases where the order includes a party who can have no liability, such as for costs. See, for example, Herman, Ex parte; Mathieson (No 2), Re (1960) 78 WN (NSW) 6. Similarly, where the party has changed its legal status, such as by a corporate restructure, as in Mercer Alloys Corporation & Anor v Rolls Royce Ltd [1972] 1 All ER 211.
7. Accordingly, I am prepared to make the appropriate orders.
8. The proposed orders are, however, not sufficient to the task that is required. While the proposal seems like a consensual, and what might be termed "friendly", rearrangement of the proceedings, it should, nevertheless, proceed properly.
9. Thus, r 241 of the Court Procedures Rules requires an amended application to be filed and the sealed copy served on the new defendant. As the application is made by the defendants, I see no reason to dispense with this rule. I do note, however, that Mr McCarthy announced his appearance this morning also for the Territory but, nevertheless, it seems to me that there is no occasion for dispensing with that rule.
10. Given, however, that the Territory is clearly supportive of the application, I have no doubt that it will facilitate the process under s 33 of the Court Procedures Act 2004 (ACT). The amended summons can be served on the Chief Solicitor; that should make service easy. Thereafter, the Territory can, no doubt speedily, file and serve a Notice of Intention to Respond. Once that is done, the proceedings are then properly commenced with the new defendant.
11. I was also asked to amend my reasons to reflect the new parties. I was initially reluctant to do that as it seemed to me that the time had passed and this could not be retrospectively effected.
12. As was pointed out in Philip Morris Ltd v Bridge Shipping Pty Ltd & Ors [1994] VicRp 51; [1994] 2 VR 1 (at 8), however, the addition of a party makes that party a party as from the date of commencement of the proceedings.
13. In addition, the reality of the situation has now been recognised and the change will not affect any substantive rights. As I have not heard any significant argument on the subject, I will make the amendments asked for on this occasion, but consider that this is no precedent for such changes in the future when full argument might persuade me otherwise.
14. These procedures now require the plaintiff to take certain steps. As the benefit of these steps are all for the defendants and the Territory and this application should have been made a long time ago, it seems to me that the defendant parties should bear the costs of these steps and, in the circumstances, on an indemnity basis.
15. Accordingly, I will order that:

(1) the plaintiff have leave to withdraw the Notice of Discontinuance filed on 14 March 2011. Such notice to be deemed to have been withdrawn on 30 August 2011;

(2) the first defendant and the second defendants be removed as parties under r 230 of the Court Procedures Rules 2006 (ACT);

(3) the Australian Capital Territory be included as the defendant under r 220 of the Court Procedures Rules 2006 (ACT);

(4) the title of the proceedings be amended accordingly;

(5) the plaintiff file an Amended Originating Application within seven days and serve a sealed copy within seven days thereafter on the Australian Capital Territory;

(6) the Australian Capital Territory file and serve a Notice of Intention to Respond within seven days of service on it of the Amended Originating Application;

(7) the plaintiff file and serve a Notice of Discontinuance in these proceedings within seven days of service on it of the Notice of Intention to Respond on the Australian Capital Territory;

(8) upon the filing of the Notice of Intention to Respond, the court issue a Corrigendum in respect of the decisions in this matter numbered [2011] ACTSC 39 and [2011] ACTSC 43 as follows.

(a) In [2011] ACTSC 39, the following amendments be made:

(i) the title of the proceedings be altered to reflect the change of parties;

(ii) in order 3(b) the word "defendant's" be substituted for the word "defendants'";

(iii) in order 3(d) the word "defendant" be substituted for the word "defendants'";

(iv) in paragraphs 4, 6, 57, 121, 124(3)(b) and 124(3)(d) the words "defendants'" be substituted by "defendant's";

(v) in paragraphs 4, 6, 56, 70, 82, 105, 106, 110, 111, 112 and 120 the word "defendant" be substituted for the word "defendants";

(vi) in paragraphs 4 and 5 the words "first defendant," be omitted;

(vii) in paragraphs 41 and 47 the words "Dr O'Leary" be substituted for the words "the first defendant, Dr O'Leary";

(viii) paragraph 54 be varied by omitting "As to the parties to the Originating Application, Dr O'Leary was made a party as acting chair of the committee and as the person who appears to have made, or at least communicated, the decision to Dr Gupta, but who did not attend the relevant meeting, and the second defendants were the members of the committee who deliberated on Dr Gupta's application" and the following substituted, "Dr O'Leary was acting chair of the committee and the person who appears to have made, or at least communicated, the decision to Dr Gupta but who did not attend the relevant meeting of the members of the committee who deliberated on Dr Gupta's application";

(ix) paragraphs 113, 114, 116 and 118 be varied by substituting for the words "defendants" the initials "MDAAC"; and

(x) paragraphs 116 and 118 be varied by substituting the words "the other members of the MDAAC" for "the second defendants".

(b) In [2011] ACTSC 43, the following amendments be made:

(i) the title of the proceedings be altered to reflect the change of parties;

(ii) in paragraphs 10 and 11 the word "defendant" be substituted for the word "defendants"; and

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Counsel for the plaintiff: No appearance (29 August 2011)

Solicitor for the plaintiff: Williams Love & Nicol Lawyers

Solicitor for the defendant: ACT Government Solicitor