Tanaskovic v ACT [2025] ACTSC 202

In the present proceeding, the plaintiff claims damages arising from the death of his wife during a procedure carried out at the Canberra Hospital. The death occurred on 22 February 2019. The plaintiff evidently first consulted his current solicitor in April 2019, but that was in respect of administration of his wife’s estate. The death was one as to which the Coroner was required to determine the manner and cause of death. As I think is common knowledge in the Territory, the Coroner’s office has a significant burden of work which means that there are delays in the completion of such inquiries. In the present case the Coroner has, at various times, communicated with the plaintiff as to the steps that were being taken. However, it was not until 22 April 2024 that the solicitor received an email from the Coroner’s office advising that an expert had been engaged to review certain images which might shed light on the circumstances in which the plaintiff’s wife died.

Then, on 28 January 2025, the solicitor received an email from the Coroner’s office attaching the report of an expert. The affidavit in support of the application states, and it is not disputed, that it was as a consequence of the review of that report that the prospect of a claim against the Territory was identified or, in the language of the affidavit (and the statute), that the Territory was identified as a respondent to the claim.

Counsel’s advice was sought and, in due course, the originating claim and statement of claim were filed on 20 February 2025, the second last day on which proceedings were able to be commenced in accordance with the limitation period of six years. It is common ground that that is the limitation period that applies.

There may be room for argument as to the date on which that limitation period commenced to run. I am nonetheless satisfied that it was appropriate for the solicitor for the plaintiff, taking a prudent approach, to commence proceedings on or before 21 February 2025.

Before commencing the proceedings, the plaintiff sought the Territory’s agreement not to plead any available limitation defence but that agreement was not forthcoming within the timeframe I have outlined. Accordingly, the plaintiff commenced the proceedings. I am satisfied that it is appropriate to grant leave in accordance with s 79(1). The parties agree that, in that event, costs should be costs in the cause.

Order 2 in the application seeks a stay of the proceedings. Section 79(3) of the Civil Law (Wrongs) Act provides that, if the Court gives leave to a claimant to begin a proceeding despite noncompliance with Chapter 5, the proceeding begun by leave is stayed until the claimant complies with Chapter 5 or the proceeding otherwise comes to an end. Accordingly, it is not necessary to grant a stay. The parties agree, however, that the period of six months is a reasonable period to anticipate compliance with Chapter 5. Accordingly, I am satisfied that it is appropriate to stand the proceedings over to 14 October 2025 before the Senior Deputy-Registrar.