Martinsen v ACT [2025] ACTSC 130

Catchwords: CIVIL LAW – PRACTICE AND PROCEDURE – claim for damages for personal injury – where proceedings commenced before completion of the requirements of Ch 5 of the Civil Law (Wrongs) Act 2002 (ACT) – where proceedings commenced to avoid expiration of limitation period — consideration of requirement for leave to commence proceedings Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT), ss 29(3), 61(b), 61(f)(i), 79, ch 5 Parties: Jessica Mary Martinsen (Plaintiff) Australian Capital Territory (Defendant) Representation: Counsel I Hall (Plaintiff) J Payne (Defendant) Solicitors Maliganis Edwards Johnson (Plaintiff) ACT Government Solicitor (Defendant) File Number: SC 414 of 2024 McCALLUM CJ: EX TEMPORE REASONS (REVISED)

1. These are proceedings for medical negligence. The proceedings were commenced on 11 December 2024. The plaintiff claims damages arising from her treatment at the Canberra Hospital for the condition of hyperparathyroidism. The application before the Court is for leave pursuant to s 79 of the Civil Law (Wrongs) Act 2002 (ACT) nunc pro tunc to commence the proceedings in circumstances where, although the plaintiff has completed all of the requirements imposed upon her by ch 5 of the Act, the defendant has not.

2. The application is supported by a carefully-drawn affidavit affirmed by Ms Isobel Hall, who sets out the steps taken by the plaintiff to inform the defendant of the nature of the claim and otherwise comply with the requirements of ch 5.

3. Ms Hall took the view that the limitation period for the plaintiff’s claim might expire in about January 2025 on the basis that it was around January 2022 when the plaintiff first discovered that she was suffering from persistent hyperparathryoidism and osteopenia, which she alleges was contributed to or exacerbated by the treatment she received. That reflects the pleading in the originating claim that, on 31 January 2022, the plaintiff attended upon her general practitioner and was referred for a bone scan to check for osteoporosis. On that analysis, Ms Hall was required to commence the proceedings urgently to obviate the risk of their being statute barred.

4. Leave, if required, should clearly be granted in the circumstances.

5. Section 79(1) of the Civil Law (Wrongs) Act provides that the court on an application by a claimant may give leave to the claimant to begin a proceeding for damages based on liability for personal injury despite non-compliance with ch 5 if the court is satisfied that there is an urgent need to begin the proceedings. This Court has taken the view that such leave may be granted nunc pro tunc and that is the order sought today.

6. All that remains to be completed from the requirements of ch 5 is for the defendant to provide, pursuant to s 61(b), a written notice stating whether liability is admitted or denied and further, pursuant to s 61(f)(i), to make a written offer or counter-offer of settlement, setting out in detail the basis on which the offer is made.

7. Section 29(3) provides that, if leave is given, the proceeding begun by leave is stayed until the claimant complies with ch 5. The scheme of the legislation appears to contemplate that that will include responding to steps which, in these proceedings, have not been taken by the defendant. I am informed by the parties that the completion of those steps should take no more than four weeks.

Orders

8. For those reasons I make the following orders: (1) Pursuant to s 79 of the Civil Law (Wrongs) Act, the plaintiff is granted leave to commence and maintain her civil proceedings in the Supreme Court of the Australian Capital Territory (SC 414 of 2024), with such orders made nunc pro tunc and taking effect from 6 December 2024. (2) Note the effect of s 79(3) is to stay the proceedings until the requirements of ch 5 have been complied with or completed. (3) Vacate the listing before the Registrar on 14 April 2025. (4) List the matter for directions before the Registrar on 12 May 2025 at 9:30 am. (5) Costs of and incidental to this application be the plaintiff’s costs in the cause.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: