van Rensburg v ACT [2026] ACTSC 95

1. Ms van Rensburg brings a claim for damages against the Territory and four general practitioners for their part in the delayed diagnosis of her multiple sclerosis condition. At various times, she consulted each of the general practitioners, and other doctors employed by the Territory, for advice about medical matters before she was ultimately diagnosed with multiple sclerosis.

2. Ms van Rensburg claims a worsened outcome as a result of the acts or omissions of each of the defendants in their assessment of her medical condition and their failure to diagnose multiple sclerosis at an earlier time. She commenced these court proceedings on 18 October 2024 and they are listed for hearing commencing on 2 June 2026, which is only seven weeks away.

3. On 25 February 2026, Ms van Rensburg’s solicitors served an expert report prepared by Dr Andrew Gleason, neuropsychiatrist and psychogeriatrician. The report is dated 4 February 2026 and it was received on the day it was served.

4. On 10 April 2026, I heard an application made by Ms van Rensburg for an order extending the time allowed by previous directions for the service of expert evidence. The effect of the order she seeks is to render the service of all of Ms van Rensburg’s expert material, including the recently served report of Dr Gleason, compliant with the Court’s directions. As things presently stand, Ms van Rensburg’s expert material was due to be served on or before 14 April 2025, with her evidence in reply to be served on or before 10 August 2025. At issue between the parties is not the service of the earlier evidence relied upon by Ms van Rensburg, but the late service of the report of Dr Gleason with reference to the Court’s previous directions. In support of the application, she reads the affidavit of Heather Ross, solicitor, sworn on 17 March 2026.

5. The first, second and fourth defendants oppose Ms van Rensburg’s application. The third and fifth defendants adopt a neutral position, principally because they have resolved their dispute with Ms van Rensburg. At the application hearing, the first defendant tendered, without objection, a letter dated 9 April 2026 from Wotton Kearney, the solicitor for the second and fourth defendants, addressed to Ms van Rensburg’s solicitor and an attached report of Dr Fernando Roldan dated 26 May 2025. The letter makes clear Dr Roldan, who is a clinical psychologist with neuropsychological expertise, was engaged jointly by the defendants. The letter does not purport to serve the report but simply to disclose it. Wotton Kearney suggests the disclosure of Dr Roldan’s report obviates the need for any further neuropsychological assessment of Ms van Rensburg. The applicable rules

6. Ms van Rensburg makes her application in reliance on r 1205 of the Court Procedures Rules 2006 (ACT), or in the alternative, r 1401. Each of those rules deal with the Court’s direction making power. Rule 1401 permits the making of a direction at any stage of a proceeding, even though the direction may be inconsistent with another provision of the Rules. Rule 1205 deals with the direction making power in the narrower sense as it applies to expert evidence. As with r 1401, although not expressly stated, it appears to be a power that may be exercised at any stage of proceedings.

7. Under either rule, the making of directions about the conduct of proceedings is an inherently discretionary exercise. Although the discretion afforded by r 1401 is broad, r 1401(3) expressly provides that interests of justice considerations are paramount. With similar effect in respect of r 1205, the purposes of pt 2.12 of the Rules set out at r 1200 refer to interests of justice considerations.

Which rule applies?

8. On the basis that it deals expressly with directions in relation to expert evidence, and more particularly in r 1205(1) with a direction about the time for service of expert reports, r 1205 governs the making of directions of the kind Ms van Rensburg seeks. To the extent r 1401(4)(h) also deals with directions requiring the service or exchange of expert reports, it does so “in relation to a hearing of a proceeding”.

9. The defendants concede the circumstances warranting the making of a direction about the service of expert evidence under r 1205 do not require the demonstration of exceptional circumstances as are required under r 1241 as it applies to the service and admission of reports into evidence at hearing.

What are the principles guiding the making of a direction under r 1205?

10. As McCallum CJ highlighted in Smith v Children Australia Inc [2022] ACTSC 310 at [3] – [4], the Court must be guided by s 5A of the Court Procedures Act 2004 (ACT) providing for the just resolution of disputes as quickly, inexpensively and efficiently as possible and, in similar terms, to para 1 of the Supreme Court of the ACT, Practice Direction No 2 of 2014: Case Management in Proceedings Commenced by Originating Claim, 26 September 2024 referring to the “just resolution of the real issues in proceedings with a minimum of delay and expense”.

11. In Milhem v Sam’s Carpentry Pty Ltd (in liquidation) [2023] ACTSC 51 at [25], Baker J identified factors of significance in deciding whether to permit an extension of time to serve an expert report under r 1205: The following factors are of particular significance in determining whether to grant leave to permit an extension of time to serve an expert report under r 1205: i. Whether there will be prejudice to the respondent if leave is granted to permit late service of the expert report; ii. Whether there will be prejudice to the applicant if leave is not granted to permit late service of the expert report; iii. Whether there has been a reasonable explanation for the failure to comply with prior directions of the Court: Hinchcliffe v Carters Transport Australia Pty Ltd [2017] ACTSC 223 at [14] - [15] (Mossop J). The Court “must be fully informed of the reasons for any change in position, even if this requires an admission that some of those reasons are the applicant's fault”: Glover v Fuller [[2022] ACTSC 144] at [9]; and iv. Whether the grant of leave will jeopardise a listed hearing date. Where an application is brought at a time that is “likely to kybosh the hearing, the Court should be slow to grant leave having regard to the clear purpose of the special rules about the service of expert reports”: McCloskey v Nexis Accountants Pty Ltd [2023] ACTSC 41 at [14] (McCallum CJ).

12. Her Honour did not consider the list to be exhaustive and accepted what may be significant will vary from case to case.

The matters of particular relevance in this case

13. At the heart of the dispute here is the reliance sought to be placed on the opinion of Dr Gleason. There is merit in having regard to some relevant portions of the medical evidence.

14. Dr Gleason noted the symptom that concerns Ms van Rensburg most is she feels her mind is going. He recorded: She has fluctuating difficulty recalling recent events. She stated that she merges different memories and people will look at her, “and think I’ve gone loopy”. She stated that she has difficulty finding words, although often simple rather than complex ones. She forgets words in meetings but has found ways to talk around this. She struggles to hold a lot of information in her brain at once. Her thinking seems slow. She struggles to comprehend complex documents. She must run these through artificial intelligence software to summarise them, as she cannot understand them anymore. She is worried that work will find out about her symptoms. She stated that she does not go anywhere alone as she is worried she will get lost. Even if she goes to the shopping centre, she will not go into a shop without someone with her. The only time she is alone outside the house is when she is at work. She will go to the coffee shop across the road from work, but not further.

15. Dr Gleason diagnosed major depressive disorder in partial remission, mild neurocognitive disorder due to multiple sclerosis, psychotic disorder due to multiple sclerosis with hallucinations. It is these diagnoses and the treatment recommendations that flow from them which Ms van Rensburg seeks to rely upon.

16. It is relevant to note Ms van Rensburg was assessed by a consultant physician, Associate Professor Michael Vagg, who reported on 6 June 2025. At the time of his assessment, Dr Vagg found Ms van Rensburg showing no signs of a diagnosable psychological disorder. He said, “she is not currently depressed”. He also observed, “it is likely that Ms van Rensburg and her family will require formal psychological support as her disease progresses”. Thus, whilst it was anticipated by Dr Vagg as at June 2025 there would be a progression of her condition requiring psychological support, the diagnosis now available to Ms van Rensburg via the opinion of Dr Gleason was not available at a previous time.

17. It is relevant at this point to also have reference to the opinion of Dr Roldan in his report dated 26 May 2025. Of interest his assessment was conducted at a very similar time to that of Dr Vagg. Dr Roldan comprehensively summarised Ms van Rensburg’s previous medical attendances and assessments. He also performed some psychometric testing. Dr Roldan considered Ms van Rensburg to have performed rather poorly on a number of psychometric tests designed to assess for cognitive performance validity. He observed: I am reluctant to conclude that these data reflect deliberate underperformance and I am more inclined to suggest that while aspects of Ms van Rensburg’s test scores for me may fail to accurately reflect her current level of cognitive functioning, this may have been the result on fluctuations in effort and concentration associated with physical discomfort and fatigue.

18. Dr Roldan accepted Ms van Rensburg was likely to experience deficits in cognitive function as a result of her multiple sclerosis.

Should Ms van Rensburg be permitted to rely upon the report of Dr Gleason?

19. Mr Julienne, who is Ms van Rensburg’s counsel, points to the very significant prejudice she may suffer at hearing if she is not permitted to rely upon the opinion of Dr Gleason. He acknowledges the hearing date is only seven weeks away but suggests that should be sufficient time for the defendants to secure any evidence they wish to obtain in reply. He notes no issues of actual prejudice are raised by the defendants. He points to the evidence of Dr Gleason going to the core of Ms van Rensburg’s claim.

20. The primary submissions for the defendants are from Mr Wilson who is counsel for the first defendant, the ACT. Mr Sharwood, counsel for the second and fourth defendants, essentially adopts those submissions. Mr Wilson acknowledges there is no evidence of actual prejudice relied upon, but points to the presumptive prejudice suffered as a consequence of the delay in providing the report of Dr Gleason and the proximity to the hearing date. He concedes enquiries have been made in relation to securing evidence in reply and, without going into the detail of those enquiries, there is a likelihood the defendants will be able to secure responsive evidence from a psychiatrist in time for the hearing to proceed as currently timetabled. Mr Wilson accepts exceptional circumstances are not required and points to the defendants’ desire to retain the current hearing date. He queries the adequacy of the explanation provided by Ms van Rensburg for the delay in procuring the opinion of Dr Gleason.

21. It is clear to me from my review of the medical material Ms van Rensburg’s multiple sclerosis condition is progressive, and a component of the progression is cognitive decline. I accept the prospect of a progression of her condition should have been apparent to those advising her and, with the benefit of hindsight, should perhaps have led them to consider the possibility of a review of her cognitive decline at some earlier time. Having said that, the affidavit evidence of Ms Ross makes clear the trigger for concern as to the level of cognitive decline was Ms van Rensburg’s interaction with her advisers at a private mediation held on 30 September 2025. Thereafter, it appears steps were taken relatively promptly to arrange the assessment with Dr Gleason. His report was served as soon as it was received.

22. Unfortunately, although the opinion of Dr Roldan may have alerted Ms van Rensburg’s advisers to the need for a cognitive assessment, it was not made available to them until the day of the application hearing. The opinion was available to the defendants from May 2025 and there can be no suggestion they were not aware of the prospect of cognitive decline impacting Ms van Rensburg at some relevant time.

23. In the circumstances, I consider it appropriate to allow Ms van Rensburg to rely upon the opinion of Dr Gleason primarily for the following reasons: (a) There will clearly be prejudice to the case presented by Ms van Rensburg if his opinion is excluded. (b) There is unlikely to be any prejudice to the defendants assuming they are afforded the opportunity to obtain responsive evidence. (c) As to presumptive prejudice, it should not be given any weight in this case noting the forensic decision made by the defendants to withhold the report of Dr Roldan until the day of the application hearing. (d) Whilst a hindsight view leads me to conclude the issue of cognitive decline is one that Ms van Rensburg’s advisers may well have identified at an earlier time, I am satisfied the identification of the need was triggered by her performance at the mediation in late September 2025. (e) It does not appear to me the grant of leave is likely to jeopardise the upcoming hearing.

Orders

24. I therefore make the following orders: (1) Order six of the orders made on 31 January 2025 is varied to extend the date for service of the plaintiff’s expert evidence to 25 February 2026. (2) The plaintiff has leave to file an amended statement of particulars in the form annexed to the affidavit of Ms Heather Ross sworn on 17 March 2026. (3) The defendants have leave to serve the report of Dr Fernando Roldan dated 26 May 2025 together with any other evidence in reply to the opinion of Dr Andrew Gleason on or before 27 May 2026. (4) The costs of the application are costs in the cause.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: Date: