Fletcher v Besser

Case [2010] NSWCA 30

New South Wales


Court of Appeal


CITATION: Fletcher v Besser [2010] NSWCA 30
HEARING DATE(S): 22 February 2010
 
JUDGMENT DATE: 
9 March 2010
JUDGMENT OF: Allsop P at 1; McColl JA at 3; Sackville AJA at 4
DECISION: (1) The application for leave to appeal is dismissed.
(2) The applicant pay the respondents’ costs of the application for leave to appeal.
CATCHWORDS: LIMITATION PERIOD – second application for extension of the limitation period – alleged medical negligence – first application previously dismissed – whether primary Judge erred in finding actual prejudice if extension granted – whether primary Judge erred in finding no inconsistency between the second respondent’s evidence in the first and second applications - PRACTICE AND PROCEDURE – whether second application for an extension of the limitation period should be entertained
LEGISLATION CITED: Civil Procedure Act 2005
Limitation Act 1969
CATEGORY: Principal judgment
CASES CITED: DA Christie Pty Ltd v Baker [1996] 2 VR 582
Fletcher v Besser [2004] NSWCA 132
Fletcher v Hamilton-Gibbs [2002] NSWSC 899
Fletcher v Hamilton-Gibbs [2009] NSWSC 124
Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139
PARTIES: Joanna Wilhelmina Fletcher (Applicant)
Michael Besser (First Respondent)
Sydney South West Area Health Service (Second Respondent)
FILE NUMBER(S): CA 2009/0040166
COUNSEL: J Agius SC; M Condon (Applicant)
D Higgs SC; J Downing (First Respondent)
S Kalfas SC (Second Respondent)
SOLICITORS: Graham Billing & Co Solicitors (Applicant)
TressCox Lawyers (First Respondent)
HWL Ebsworth Lawyers (Second Respondent)
LOWER COURT JURISDICTION: Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S): SC 12351/1995
LOWER COURT JUDICIAL OFFICER: Adams J
LOWER COURT DATE OF DECISION: 6 March 2009
LOWER COURT MEDIUM NEUTRAL CITATION: Fletcher v Hamilton-Gibbs & Ors [2009] NSWSC 124




                          CA 40166 of 2009

                          ALLSOP P
                          McCOLL JA
                          SACKVILLE AJA

                          Tuesday, 9 March 2010
FLETCHER v BESSER & ANOR

Judgment



1 ALLSOP P:

I have read the reasons in draft of Sackville AJA. I agree with the orders proposed by his Honour and with his Honour’s reasons.

2 I would also, in particular, agree with his Honour that in the light of the Civil Procedure Act 2005 (NSW), ss 56-60, the authority of Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139 may need to be reconsidered.

3 McCOLL JA: I agree with Sackville AJA and with the additional observation of Allsop P.

4 SACKVILLE AJA: This is an application for leave to appeal from a judgment of a Judge of the Supreme Court (Adams J). His Honour refused an application under s 60G of the Limitation Act 1969 for an extension of the limitation period so as to enable the applicant to commence proceedings against the first and second respondents (“Dr Besser” and “Health Service”, respectively): Fletcher v Hamilton-Gibbs [2009] NSWSC 124. The Court has heard full argument on the merits of an appeal in conjunction with argument on the application for leave to appeal.

5 The case for which the applicant now seeks an extension of the limitation…

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Fletcher v Besser [2010] NSWCA 30
Case
[2010] NSWCA 30
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CaseChat Overview and Summary

In *Fletcher v Besser*, the Full Court of the Supreme Court of New South Wales considered an application for leave to appeal a decision of a primary judge who had dismissed a second application for an extension of the limitation period. The applicant alleged medical negligence against the respondents. The first application for an extension had previously been dismissed.

The central legal issues before the Full Court were whether the primary judge had erred in finding that the respondents would suffer actual prejudice if an extension were granted, and whether the primary judge had erred in finding no inconsistency between the evidence provided by the second respondent in the first and second applications. The Court also had to determine whether a second application for an extension of the limitation period should have been entertained at all.

The Full Court upheld the primary judge's decision, finding no error in the assessment of actual prejudice or in the finding regarding the consistency of the second respondent's evidence. The Court reasoned that the primary judge had correctly applied the principles governing applications for extensions of time, particularly in circumstances where a prior application had been dismissed. The Court considered that the primary judge had been entitled to conclude that the respondents would suffer actual prejudice and that the second application was not sustainable.

Consequently, the application for leave to appeal was dismissed, and the applicant was ordered to pay the respondents’ costs of the application for leave to appeal.

Orders

Orders of the court

(1) The application for leave to appeal is dismissed.

(2) The applicant pay the respondents’ costs of the application for leave to appeal.

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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