Rees-Wlodek v Calvary Healthcare ACT Limited [2025] ACTSC 162

Circumstances in which the claim arises

6. The first plaintiff, Mrs Rees-Wlodek, gave birth to the twins on 19 April 2022. As is obvious, that is now over three years ago. One of the twins died three weeks later as a result of injuries sustained during the birth.

7. Mrs Rees-Wlodek retained solicitors (not the solicitors presently on the record) to act on her behalf to make a claim in medical negligence. That solicitor gave notice of Mrs Rees- Wlodek’s claim on 7 December 2022. The respondent did not give the required response within the required period and was accordingly conclusively presumed to be satisfied that the notice was a complying notice of claim, in accordance with the deeming provision in s 54(3) of the Act. The respondent advised Mrs Rees-Wlodek accordingly and, at the same time, requested further information. Some further steps were taken but there appears to have been little real progress in the claim until 8 February 2024, when both plaintiffs retained United Legal, the solicitors now on the record.

8. United Legal encountered difficulties obtaining information from either the previous solicitor or the respondent as to whether a complying notice of claim had been received by the respondent. On 16 April 2024, presumably taking a cautious approach and seeking to keep the claim progressing, they provided a second notice of claim in respect of Mrs Rees-Wlodek. On 15 July 2024, United Legal served a notice of claim on behalf of the second plaintiff, Mr Rees-Wlodek. That notice was out of time. In response to a request from the respondent, an explanation for the delay was provided (that Mr Rees- Wlodek was suffering from depression as a result of the death of the twin and the alleged negligence of the hospital).

9. On 23 September 2024, the plaintiffs served a liability report from Professor Edward Weaver OAM. On 28 October 2024, the defendant requested further particulars, in response to which the plaintiffs served psychiatric reports from Dr Eli Kotler.

10. On 31 October 2024, concerned at the ongoing delay in the completion of the ch 5 steps, the plaintiffs commenced proceedings by filing a Statement of Claim. That process was served on the defendant on 6 November 2024. In response to the statement of claim, the defendant filed a conditional notice of intention to respond alleging non-compliance with the requirements of ch 5.

11. The proceedings first came before the Court on 9 December 2024. On that occasion, the Deputy Registrar took the view that, if the defendant sought a stay of the proceedings pending compliance with the requirements of ch 5, it would need to bring an application. She directed the defendant to file and serve any application seeking a stay by 13 December 2024. The defendant filed an application for a stay slightly late, on 16 December 2024. The only significance of that fact is that it effectively took the matter into the period of the summer break.

12. The defendant’s application came before the Court on 6 February 2024. On that date, the proceedings were stayed by consent for a period of three months “to allow the required pre-court steps of Chapter 5 of the Civil Law (Wrongs) Act 2002 (ACT) (the Act) to be taken by the parties.” On the same date, and despite that order, the Registrar granted leave to the plaintiffs to file and serve an application seeking leave to commence the proceeding. That is the application I determined on 21 March 2025.

Requirement for leave

13. As already noted, the plaintiffs contend that leave was not required. They noted that s 51 refers only to a notice of claim. Section 51(1) provides: Before a claimant brings a proceeding against someone else (a respondent) based on a claim in relation to a personal injury, the claimant must give the respondent written notice of the claim.

14. The plaintiffs submitted that, absent clear language, it cannot be concluded that Parliament intended that a plaintiff must comply with the entirety of ch 5 before commencing proceedings.

15. There are indications for and against that conclusion. The clear purpose of the Act is to encourage and facilitate the resolution of personal injury claims without the need for litigation. To that end, ch 5 imposes obligations on each party to provide documents and information and to respond to the other party within specified time frames.

16. Chapter 5 is divided into four parts. Part 5.1 is preliminary.

17. Part 5.2 specifies the procedures for making a claim. Section 51 specifies the information that must be included in a notice of claim. Section 52 makes provision for a respondent to give a preliminary response to a notice of claim seeking further information if it cannot decide on the information in the notice of claim whether it is properly a respondent to the claim. That section further provides for the claimant either to provide the further information sought or to insist (my word) that it considers the respondent to be properly a respondent to the claim and requires it to respond to the claim in accordance with s 54. Section 53 protects a respondent by making plain that an admission that it is properly a respondent to the claim is not an admission of liability.

18. Section 54 requires a respondent to respond to a notice of claim. As with s 51, that section specifies the information that must be included within a response. Sections 55 to 58 make provision for the addition of other respondents.

19. Section 59 is important. That section provides: Claimant’s failure to give complying notice of claim (1) If a claimant does not give a complying notice of claim, the claimant cannot proceed further with the claim unless— (a) the respondent to whom notice of the claim was purportedly given— (i) has given the claimant a written notice to the effect that the respondent is satisfied the notice is a complying notice of claim or the claimant has taken reasonable action to remedy the noncompliance; or (ii) is presumed, under section 54 (3) (Respondent’s response to notice of claim), to be satisfied the notice is a complying notice of claim; or (b) the respondent has waived any noncompliance; or (c) the court, on application by the claimant— (i) declares that the claimant has remedied the noncompliance; or (ii) authorises the claimant to proceed further with the claim despite the noncompliance. (2) An order of the court under subsection (1)(c) may be made on conditions the court considers necessary or appropriate to minimise prejudice to a respondent from the claimant’s noncompliance.

20. Two things may be noted about that section. First, while it refers to an application by a claimant to the court, it is silent as to whether any such application is to be brought before or after the commencement of substantive proceedings claiming damages for personal injury. It is helpful in that context to consider two of the definitions provided in the definitions section, s 49 of the Act.

21. In that section, the term “claim” is defined to mean: a claim (however described) for damages based on a liability for personal injury, whether the liability is based in tort or contract or on another form of action (including breach of statutory duty), and, for a fatal injury, includes a claim for the dead person’s dependants or estate.

22. The section defines the term “court” as follows: court, in relation to a claim, means— (a) if a proceeding based on a claim has been begun—the court hearing the proceeding; or (b) if no proceeding based on the claim has been begun—a court with jurisdiction to hear the claim.

23. That definition indicates that the term “claim” applies both before and after the commencement of proceedings. As a consequence of that definition, the content of the prohibition in s 59 (“the claimant cannot proceed further with the claim”) is unclear, as it could refer to both the pre-trial processes and proceedings in court.

24. Secondly, s 59 provides a remedy for a claimant faced with the contention that their notice of claim is noncomplying. The section contemplates that a respondent who has previously accepted that a notice is complying or who has failed to respond to a notice of claim loses its entitlement to take the point that the notice is non-complying. Alternatively, a respondent can waive compliance. However, in the event of a stalemate, a claimant can seek appropriate relief from the court, whether or not substantive proceedings claiming damages have yet been commenced.

25. Section 61 imposes obligations on a respondent to attempt to resolve a claim within six months after receiving a complying notice of claim.

26. During argument of the present application, Mr Richards, who appears for the plaintiffs, informed me that a view has been taken within the profession, either based on the wording of that section or as a result of my decision in Maletic v Calvary Healthcare ACT Limited [2022] ACTSC 231, that a claimant cannot commence proceedings earlier than six months after receiving a complying notice of claim. Nothing in either the wording of the Act or my decision says so in terms.

27. Section 62 of the Act makes provision for costs consequences if either party does not comply with the provisions of pt 5.2 (which contains sections 51 to 62).

28. Part 5.3 of the Act imposes obligations on both parties to provide information and documents to each other and facilitates the process of obtaining expert reports (including contemplating the possibility of a single expert report).

29. Part 5.4 is headed “Other provisions – pre-court procedures”. That part relevantly includes ss 78 and 79. Section 78 confers power on the court to order a party that has failed to comply with a duty imposed by pt 5.2 or 5.3 to take action to remedy the non-compliance. For the reasons explained above in respect of s 59, the power under s 78 appears to be available whether or not the claimant has commenced substantive proceedings for damages for personal injury.

30. Section 79 provides: Need for urgent proceeding (1) The court, on application by a claimant, 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. (2) The order giving leave may be made on conditions the court considers appropriate having regard to the circumstances of the case. (3) If leave is given, the proceeding begun by leave is stayed until the claimant complies with this chapter or the proceeding is discontinued or otherwise ends. (4) However, the proceeding is not stayed if— (a) the court is satisfied that— (i) the claimant is suffering from a terminal condition; and (ii) the trial of the proceeding should be expedited; and (b) (b) the court orders the proceeding be given priority in the allocation of a trial date. (5) If, under subsection (4), the proceeding is not stayed, this chapter (other than this section) does not apply in relation to the personal injury.

31. As explained at the outset of this judgment, there is a tension between, on the one hand, the terms of s 51, which suggests that the only precondition to commencing proceedings is the service of a complying notice of claim, and the terms of s 79, which contemplates that a claimant cannot bring a proceeding except in an urgent case (and then only with leave) until they have complied with all of their obligations under ch 5.

32. It was not necessary to resolve that tension in the present case because I was satisfied that there was an urgent need to begin the proceeding. The basis for the application was that each of the plaintiffs has been diagnosed with several mental conditions resulting from the defendant’s alleged negligence and the death of their daughter. Dr Kotler has provided a report in respect of each plaintiff. Each is recorded as having frequent suicidal thoughts.

33. As noted by Mr Montagnino in his affidavit sworn in support of the application for leave, by the time the plaintiffs served their liability report from Dr Weaver on 23 September 2024, it had been approximately one year and nine months since Mrs Rees-Wlodek’s first notice of claim was served and over five months since her second notice was served; it had been over two months since Mr Rees-Wlodek’s notice was served and over one month since he had provided an explanation for his delay in giving notice. Mr Montagnino accordingly assumed that the defendant had found the notices of claim to be compliant and were carrying out investigations.

34. The plaintiffs were assessed by Dr Kotler on 1 and 2 October 2024 respectively. On 25 and 28 October 2024, Mr Montagnino received requests for further information pursuant to s 64 of the Civil Law (Wrongs) Act. He responded to those requests by serving Dr Kotler’s reports. Three days later, he filed the Originating Claim and Statement of Claim.

35. As already noted, the defendant’s application for a stay was not filed until 16 December 2024. Mr Montagnino did not see the application until he returned from the summer break. By that time, without conceding any non-compliance with ch 5, he considered it expedient to consent to the stay (as half the period of the stay sought had already passed).

36. The defendant neither opposed nor consented to the grant of leave. In light of the period of time that has passed since the death of the plaintiff’s daughter, allegedly as a result of the defendant’s negligence, and the mental state of each plaintiff, I was persuaded that there was an urgent need to commence proceedings.

Entitlement to commence proceedings

37. Accordingly, the following observations are made only by way of obiter dicta. Mr Richards urged the Court to provide a definitive judgment to quell confusion within the profession as to the proper approach. It is undesirable to attempt to do that in a case in which the issue does not arise for determination.

38. Accordingly, I confine myself to the following observations. The clear purpose of ch 5 of the Civil Law (Wrongs) Act is to encourage and facilitate the resolution of claims for personal injury without the need for litigation and in a manner that is timely and that minimises legal costs. However, the provisions of ch 5 are sufficiently flexible to accommodate the many different kinds of disputes governed by the Act, including those that cannot practically be resolved within the time limits contemplated under the Act. To that end, the Act does contemplate the commencement of proceedings prior to the completion of the pre-court procedures.

39. Two things may be said about that. First, I accept, as submitted by Mr Richards, that absent clear wording in the Act, it should not be construed to mean that proceedings commenced without leave are a nullity. Conversely, however, I remain of the view that s 79 does impose a requirement to seek leave. The effect of granting leave is to stay the proceedings until the claimant complies with ch 5 or the proceeding is discontinued or otherwise ends: s 79(3). It is clear from that provision that, while proceedings may be commenced (with leave) before the completion of the ch 5 steps, the two processes should not ordinarily run side by side unless the parties consent to that course.

40. Mr Richards submitted that, if the Act was construed so as to preclude a claimant from commencing proceedings until all of the requirements of ch 5 had been complied with (including those imposed on the respondent), a claimant would have no power to compel a recalcitrant respondent to “play ball”. That is not correct. As already noted, a claimant can apply under s 59 for authority to proceed further with the claim despite the noncompliance. In the case of a failure by a respondent to complete the steps required of them, an application can be brought under s 78 of the Act to compel compliance.

41. Mr Richards submitted, in effect, that the right to bring an application under s 78 is not to the exclusion of the right to begin substantive proceedings claiming damages. His central argument was that s 51 is clear in referring only to the need to serve a (complying) notice of claim. He submitted that the remaining obligations under ch 5 can sit alongside legal proceedings.

42. The respondent responded with what was in effect a floodgates argument, contending that, if the legislation were construed in that way, “more and more matters will come directly to court without having to seek leave well and truly before the limitation period expires”. The respondent submitted that this would deprive respondents of the opportunity to investigate claims adequately and provide a response.

43. While the wording of s 51 (sitting alongside s 79) is confusing, the better view would appear to be that leave is required to commence proceedings before the ch 5 processes are complete but that the claimant can enforce compliance by bringing an application under s 78 to compel a defendant to comply with its obligations.

Orders

44. For those reasons I made the following orders: (1) Pursuant to s 79(1) of the Civil Law (Wrongs) Act 2002 (ACT), I grant leave to the plaintiffs nunc pro tunc to commence proceedings. (2) I order the costs of today’s application to be each party’s cost in the cause.

I certify that the two preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: