Whilst it is tempting to draw out the suspense, the short answer is; no – it hasn’t yet and is unlikely to ever do so.

Introduction

In the ACT, Chapter 5 of the Civil Law (Wrongs) Act 2002 (ACT) (the CLWA) sets out the pre-court obligations of parties to a personal injury claim.

Chief Justice McCallum of the ACT Supreme Court delivered judgment on 23 April 2025 in Rees-Wlodek v Calvary Healthcare ACT Limited [2025] ACTSC 162. Her Honour granted the plaintiffs leave to commence proceedings against the public hospital arising from alleged medical negligence, despite non-compliance with the relevant statutory pre-court procedures.

The decision is a reminder that the CLWA is intended to facilitate disclosure and prompt resolution of claims and not create a procedural barrier preventing claimants from accessing a potential cause of action.

Facts

The first plaintiff gave birth to twins on 19 April 2022 in the ACT. One of the twins died three weeks later.

There were ongoing delays encountered by the parties in complying with the relevant pre-court procedures. Despite that non-compliance, the plaintiffs commenced proceedings on 21 October 2024. The defendant filed a conditional notice of intention to respond alleging non-compliance with the pre-court procedures.

On application, the Court ordered a three month stay of the proceedings to allow the parties to comply with the pre-court steps of the CLWA. Despite that order, the plaintiffs further applied for leave to commence the proceeding urgently, because the plaintiffs had each been diagnosed with health concerns.

Issues

The relevant pre-court procedures in Chapter 5 of the CLWA impose obligations on both parties with the intention of crystallising the issues in dispute and facilitating their resolution without the need to resort to legal proceedings.

Although section 51 of the CLWA suggests that the only precondition to commencing proceedings is service of a complying notice of claim, section 79 of the CLWA provides that a claimant cannot bring a proceeding, except with leave in urgent cases, until they have complied with all relevant pre-court procedures under the CLWA including making a determination on liability and attempting to negotiate a resolution.

Decision

McCallum CJ was satisfied that there was an urgent need to commence proceedings because each of the plaintiffs had been diagnosed with several mental health issues arising from the death of their child.  Accordingly, the plaintiffs were granted leave to commence proceedings

Her Honour went on to provide guidance that the clear purpose of Chapter 5 of the CLWA being to encourage and facilitate the resolution of claims for personal injury without the need for litigation and in a manner that is timely and minimises legal costs. The provisions are, however, flexible and designed to accommodate the plethora of disputes governed by the Act, including those that cannot be practically resolved within the time limits contemplated by the Act.

Her Honour’s decision also highlighted that a party can enforce compliance with the pre-court processes by bringing an originating application before the court compelling compliance.

The parties were each ordered to bear their own costs of the application.

Discussion

Rees-Wlodek is the second decision of McCallum CJ which enforced various provisions of Chapter 5 of the CLWA, with different outcomes. In Her Honour’s earlier decision of Maletic v Calvary Healthcare ACT Limited [2022] ACTSC 231 proceedings were commenced with leave due to urgency arising from the imminent expiration of the limitation period, to preserve the plaintiff’s entitlements, but were stayed so that the parties could complete the pre-court procedures.

The approach taken in Rees-Wlodek differs as Her Honour considered the plaintiffs’ psychological injuries sufficient to warrant the proceedings continuing immediately rather than being stayed whilst the pre-court steps were completed.

Since starting this article, McCallum CJ has handed down a further decision in the matter of Ruspandini v Summernats Pty Ltd (No 2) [2025] ACTSC 171 where the plaintiff sought leave to commence proceedings despite purported non-compliance with the CLWA. Her Honour confirmed the views expressed in Rees-Wlodek but ultimately found that there had been no non-compliance and leave was not required.

Practical tips

If served with proceedings without a claimant having completed the pre-court procedures, defendants are recommended to apply to stay the proceedings in order to avail themselves of the investigative avenues in Chapter 5 of the CLWA, namely:

• Obtain a signed statement from the claimant about the incident and the relevant surrounding facts;
• Obtain the claimant’s clinical records directly using the claimant’s CLWA authority;
• Claimants must disclose all factual and expert reports about the incident – regardless of whether they are helpful to their case (albeit statements of opinion can be redacted).

For those reasons, there is merit in also thoroughly utilising those avenues promptly after having been served with a claim under the CLWA, as those processes are no longer available once proceedings are commenced.

Respondents to CLWA claims should also be mindful that they are subject to strict obligations during the pre-court procedures and we recommend seeking legal advice upon receipt of a claim to ensure compliance.

This article was written by Sarah McJannett, Partner, and Kate Torney, Associate.