Cox v Keys

Case [2012] NSWCA 268


Court of Appeal

New South Wales

Case Title: Cox v Keys
Medium Neutral Citation: [2012] NSWCA 268
Hearing Date(s): 7 August 2012
Decision Date: 28 August 2012
Jurisdiction:
Before: McColl JA at [1]; 
Macfarlan JA at [2]
Decision:

(1) Grant leave to appeal in relation to the claim against Dr Lees.

(2) Otherwise dismiss the application for leave to appeal.

(3) Direct that within 14 days of the date of this judgment, the applicant file and serve a Notice of Appeal in the form provided to the Court, limited to the grounds and proposed orders relating to the applicant's claim against Dr Lees.

(4) Order that the order of Elkaim DCJ made on 1 September 2011 dismissing the applicant's Notice of Motion be set aside insofar as it related to the applicant's claim against Dr Lees.

(5) Allow the appeal in relation to the applicant's claim against Dr Lees.

(6) Order that the time for the applicant to file and serve a Statement of Claim against Dr Lees in the form already filed be extended to the date one month from the date of this judgment.

(7) Order Dr Lees to pay the applicant's costs of his application for leave to appeal, and appeal, in relation to Dr Lees.

(8) Order the applicant to pay the costs of Drs Keys and Yuen of the application for leave to appeal (including the concurrent hearing of the appeal that would have lain if leave had been granted).

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: LIMITATIONS - Limitation Act 1969 ss 58, 60G - applicant seeks extensions of time to bring proceedings against general practitioners and radiologist - whether primary judge erred in refusing to grant extensions sought - whether "just and reasonable" to grant extensions - whether primary judge entitled to take into account that damages likely to be minimal against one practitioner - whether general practitioners would be prejudiced in defending proceedings by absence of clinical notes and inability to recall consultations - whether radiologist would be prejudiced by absence of x-ray request form
Legislation Cited: Limitation Act 1969
Supreme Court Act 1970
Cases Cited: Allen v Drayton Coal Pty Ltd [1995] NSWCA 14
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541
Cavanagh v New South Wales [2008] NSWCA 350
Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56
House v R [1936] HCA 40; 55 CLR 499
Sorrenti v Crown Corning Ltd & ACI Operations Pty Ltd (1986) 7 NSWLR 77
Warren v Coombes [1979] HCA 9; 142 CLR 531
Texts Cited:
Category: Principal judgment
Parties: Barry Charles Cox (Applicant/Appellant)
John…

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AGLC
Cox v Keys [2012] NSWCA 268
Case
[2012] NSWCA 268
Decision Date

CaseChat Overview and Summary

The applicant, Cox, sought extensions of time under the *Limitation Act 1969* to commence proceedings against general practitioners, Drs Keys and Yuen, and a radiologist. The primary judge had refused to grant these extensions. Cox appealed this decision to the Court of Appeal of New South Wales, with McColl and Macfarlan JJA presiding.

The central legal issues before the Court of Appeal were whether the primary judge erred in refusing to grant the extensions of time, and whether it was "just and reasonable" to grant such extensions. Specifically, the court considered whether the primary judge was entitled to take into account the likelihood of minimal damages against one practitioner, and whether the general practitioners would be prejudiced in their defence by the absence of clinical notes and their inability to recall consultations. The potential prejudice to the radiologist due to the absence of an x-ray request form was also a consideration.

The Court of Appeal allowed the appeal in relation to the claim against Dr Lees, one of the general practitioners. The court found that it was just and reasonable to grant an extension of time for the applicant to file a Statement of Claim against Dr Lees. However, the application for leave to appeal in relation to the claims against Drs Keys and Yuen was dismissed. The court set aside the primary judge's order dismissing the applicant's Notice of Motion concerning Dr Lees and extended the time for filing the Statement of Claim against him.

Orders

Orders of the court

(1) Grant leave to appeal in relation to the claim against Dr Lees.

(2) Otherwise dismiss the application for leave to appeal.

(3) Direct that within 14 days of the date of this judgment, the applicant file and serve a Notice of Appeal in the form provided to the Court, limited to the grounds and proposed orders relating to the applicant's claim against Dr Lees.

(4) Order that the order of Elkaim DCJ made on 1 September 2011 dismissing the applicant's Notice of Motion be set aside insofar as it related to the applicant's claim against Dr Lees.

(5) Allow the appeal in relation to the applicant's claim against Dr Lees.

(6) Order that the time for the applicant to file and serve a Statement of Claim against Dr Lees in the form already filed be extended to the date one month from the date of this judgment.

(7) Order Dr Lees to pay the applicant's costs of his application for leave to appeal, and appeal, in relation to Dr Lees.

(8) Order the applicant to pay the costs of Drs Keys and Yuen of the application for leave to appeal (including the concurrent hearing of the appeal that would have lain if leave had been granted).

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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