Gilbert (now Chalk) v Illawarra Area Health Service and 2 Ors

[2000] NSWSC 508

CITATION:

Gilbert (now Chalk) v Illawarra Area Health Service & 2 Ors [2000] NSWSC 508

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 11001/97

HEARING DATE(S):

1 June 2000

JUDGMENT DATE:

9 June 2000

PARTIES :

Sonia Leigh Gilbert (now Chalk)
(Plaintiff)

Illawarra Area Health Service
(First Defendant)

Brian Hoolahan
(Second Defendant)

Ian Hoult
(Third Defendant)

JUDGMENT OF:

Master Harrison

COUNSEL :

Ms L Byrne
(Plaintiff)

Mr P Higgs (Sol)
(First Defendant)

Mr G Curtin
(Second & Third Defendants)

SOLICITORS:

Paul J Donnelly & Associates
(Plaintiff)

Lyn Boyd
(First Defendant)

Ms Marianne Nicolle
Ebsworth & Ebsworth
(Second & Third Defendants)

CATCHWORDS:

Extension of the limitation period - Transfer to District Court - Dismiss proceedings - Stillborn - oedema - HCCC - CTG

LEGISLATION CITED:

Limitation Act 1969 (NSW)
- ss 60G & 60I
SCR - Part 33 r 8; Part 32A r 2

CASES CITED:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1
BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA unreported, 7 March 1997)
Council of the City of Sydney v Zegarac (1997-98) 43 NSWLR 195
Harris v Commercial Minerals Limited (1995-96) 186 CLR 1
Commonwealth of Australia v Dinnison (1995) 56 FCR 389
Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995)
CRS Ltd v Martignango (1995-96) 39 NSWLR 13
Commonwealth of Australia v McLran (1997) 14 NSWLR 389
Szerdahelyi v Bailey; Ortado v Bailey; Lewis v Bailey (NSWSC unreported, Badger-Parker J, 1 May 1997)
Dow Corning Australia Pty Ltd av Paton, Meares v Paton (unreported NSWCA, 24 April 1998)
Fitzgerald v Bankstown City Council (NSWCA unreported, 6 November 1995)

DECISION:

See para 32

19

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 9 JUNE 2000

11001/97 - SONIA LEIGH GILBERT (now CHALK) v

ILLAWARRA AREA HEALTH SERVICE

& 2 ORS

JUDGMENT (Extension of the limitation period
Transfer to District Court;
Dismiss proceedings)

1 MASTER: In this matter there are three motions and one summons to be dealt with. The plaintiff by summons filed 4 April 1997 seeks an order for an extension of time within which to commence proceedings pursuant to ss 60G and 60I of the Limitation Act 1969 (NSW) (the Act). By notice of motion filed 8 February 2000 the plaintiff seeks an order transferring this matter from the Supreme Court to the District Court. The plaintiff relied on her affidavit sworn 24 March 2000 and those of her solicitor Paul Joseph Donnelly sworn 20 March 2000, 30 March and 31 March 2000. By notice of motion filed 24 February 2000 the second and third defendants seek that these proceedings be dismissed. By notice of motion filed 6 April 2000 the first defendant seeks that these proceedings be dismissed. The first defendant relied on affidavit of Peter Higgs sworn 6 March 2000. The second and third defendants relied on two affidavits of Marianne Nicolle sworn 24 February 2000 and on 10 March 2000.

2   For the purposes of this application I find the following facts. I observed the plaintiff carefully when she gave evidence and during cross examination. I formed the opinion that she was giving truthful evidence.

(1) The plaintiff was born on 22 October 1979. She is currently 29 years of age. On 16 June 1990 she married her then husband Kevin Gilbert. She has since divorced and remarried.

(2) In June 1990 the plaintiff ascertained that she was pregnant and the baby was due on about 30 October 1990.

(3) On 23 October 1990 the plaintiff was admitted to hospital as she was suffering from oedema and high blood pressure. Dr Hoolahan (the plaintiff’s treating doctor) went on leave from 12 November to the evening of 16 November 1990. Dr Hoult took over the plaintiff's care during Dr Hoolahan’s absence. At 8.00 pm on 16 November 1990 Dr Hoolahan came to the hospital and examined the CTG. He said that it was abnormal and if the plaintiff did not go into labour he would induce her the next morning.

(4) On 17 November 1990 Dr Hoolahan performed an emergency caesarean. On that day the plaintiff delivered a stillborn child named Jessica.

(5) A few months after the birth of Jessica the plaintiff attended solicitors in Nowra to commence legal action. Her then husband did not attend the appointment nor give her any support. She managed to grieve alone as best she could.

(6) In early 1991 the plaintiff obtained a bar job and fell pregnant again. She left the bar job after four months. The pregnancy went well and on 5 December 1991 the plaintiff gave birth to her second daughter Emily Leigh by caesarean section at Wollongong hospital. Around about 1991 the plaintiff discovered that her husband was trans-sexual. These events together with looking after a young child preoccupied much of her thoughts, concerns and actions. Between 1994 and 1997 the plaintiff tried to live as best she could. She consulted a community assistance group to see if it could assist her. Due to these circumstances the plaintiff has not given priority to the litigation.

(7) On 11 November 1992 the plaintiff approached Johnston Brian and Associates, solicitors at Nowra with instructions to commence proceedings against Dr Ian Hoult. On 26 June 1993 the plaintiff supplied a lengthy statement to her then solicitor. She stated that around the 31st week of her pregnancy her arms, legs, feet, face and hands all became swollen. She was diagnosed as suffering from toxaemia. She asked Dr Hoult if she could be induced but he refused. The statement mentioned Dr Hoolahan and how relieved she was to have him back in charge. At no stage in the statement did she attach any blame upon Dr Hoolahan.

The plaintiff also stated that it had been three years since the birth of her daughter, and since then she has been riddled with guilt every day and suffered from emotional trauma. She spoke of breaking down in tears, feeling suicidal and how she was emotionally unable to get pregnant again for fear of losing another child. She suspected that it would always be that way.

(8) During 1993 the plaintiff attended psychiatric appointments and further reports were obtained by her solicitors. At this time she was unaware of the existence of the New South Wales Health Care Complaints Commission (HCCC). The plaintiff did not receive any documents informing her of the progress of legal proceedings, nor did she receive any written legal advice or documents to approval. She was not informed of time limits relating to litigation. It was not until May 1996 that she was advised by her then solicitor that there could be a conflict of interest if he continued to handle her matter. He recommended Paul Donnelly & Associates, the plaintiff’s current solicitors, to act on her behalf.

(9) In 1992 the plaintiff’s former solicitor arranged an appointment for her to see Dr David Pfanner. The plaintiff saw Dr Pfanner on 8 December 1992. On 8 June 1993 Dr Pfanner wrote a report in which he says:

“This clearly was developing into a case of severe pregnancy induced hypertension or severe pre-eclampsia. I believe that by 10.11.90 when the signs had not abated after one day as a inpatient steps should have been taken to deliver this patient urgently. As the state of the cervix was found to be unfavourable for induction then I believe Caesarean Section should have been undertaken.
I believe further that the C.T.G. performed 1800 on 16th November was sufficiently abnormal to demand urgent attention.
In summary then this was a case of severe pre-eclampsia, its severity should have warranted urgent delivery well before the abnormal C.T.G. was recorded.”

(10) The plaintiff was interviewed by Dr Metcalf. She gave a history from the birth to the present time. She spoke of suffering from depression, anxiety, being plagued by dreams of an unhappy content, and having intrusive thoughts. By report of 11 September 1995 Dr Metcalf made the following diagnosis:

“Your client was delivered of a stillborn child by Caesarean section on 17.11.90. The circumstances leading up to this event were such that it was been reacted to (sic) by the development of a post traumatic stress reaction which complicated the natural mourning that she has suffered because of the death of her child. The stress reaction was characterised by sleep disturbance, bad dreams, intrusive thoughts, revenge fantasies and emotional numbing. She was able to obtain some help by ventilation of her feelings with a social worker in the weeks following. This ameliorated the situation somewhat but she was still significantly disturbed for about a year. Her disturbance being complicated by the depressive aspects of her loss. It is now five years since that time and her emotional state has greatly improved. She no longer suffers from the post traumatic stress reaction. There is, however, a residue of continuing phobia about the hospital in which her traumatic loss occurred.”


(11) The plaintiff gave evidence that Dr Pfanner’s comments about the 10 November 1990 meant that steps should have been taken urgently to deliver the baby, and the 10 November 1990 was a period when she was under the care of Dr Hoult. She was also aware of the CTG performed at 1800 hours referred to actions of Dr Hoult. After the birth the plaintiff held Dr Hoult to blame for her baby’s stillbirth and continued to hold this view until she was told by HCCC that there was a cause of action against Dr Hoolahan. She says that when she read the report she did not read between the lines, but reading the report now she understands it would include Dr Hoolahan’s management of her. It was not until the HCCC report that she realised Dr Hoolahan was also accountable.

(12) In July 1996 the plaintiff’s current solicitors informed her that the medical records at Shoalhaven district hospital were missing and that they were attempting to locate them.

(13) On 18 September 1996 the plaintiff was informed by Rosie Pendlebury from the HCCC that she had a cause of action against Dr Hoolahan as well as the Illawarra Health Service. She understood that to mean that Dr Hoult was partly responsible for the death of her daughter.

(14) Between July 1996 to 13 December 1996 her current solicitors made numerous telephone calls and inquires to locate the missing medical records of the Shoalhaven district hospital. These records were located and copies were provided to the plaintiff’s solicitor on 20 January 1998. They were located in January 1998 by Dr Hoolahan’s secretary who found them when she had a clean-out of the cupboards at the surgery. (Ex A).

(15) On 14 January 1997 the plaintiff instructed her solicitors to take steps to commence these proceedings.

(16) On 4 April 1997 a summons seeking an extension of the limitation period was filed.

The Law

3 The plaintiff relies on s 60G and s 60I (1)(a)(i), (ii) and (iii) of the Limitation Act. The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in recent times in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1; BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997) and Council of the City of Sydney v Zegarac (1997-98) 43 NSWLR 195. The onus rests with the applicant. In addition to the satisfying of the relevant threshold requirements, it must be shown that it is just and reasonable to make an order.

Subdivision (3)

4   The procedure provided by this group of provisions is available for causes of action that accrue after 1 September 1990; but “also (by the operation of Schedule 5) for causes of action that accrued before that date” (s 60F).

5   Schedule 5 provides by clause 4(1) that:

“Section 60G also applies to a cause of action, founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990…”;

6 and clause 4(4) empowers the court to make an order under s 60G in respect of such a cause of action:

“…if an application for such order is made within:
(a) the period of three years referred to in s 60I; or
(b) the period of three years commencing 1 September 1990.”

7 The defendants submitted that the application was made on the date of the hearing namely, 1 June 2000. If this proposition is correct, the plaintiff cannot succeed in relation to s 60I as on her own evidence, she is out of the time period stipulated in s 60I(1)(b). The purpose of an application is to put the other party on notice that certain orders are being sought. It is my view that the date of application means the date of the summons or motion. In this case a summons was filed on 4 April 1997. It was not contended that the defendants were served of the application after that date. Thus the application date is 4 April 1997.

8 The application to extend time was made on 4 April 1997 which is outside the time stipulated in clause 4(4)(b). The application can only succeed if that date is shown to be “within the period of three years referred to in s 60I”.

9 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, “for such a period as it determines”.

10 The relevant provisions of s 60I are as follows:

“(1) A court may not make an order under s 60G or 60H unless it is satisfied that:
(a) the plaintiff:

(i) did not know that personal injury had been suffered; or

(ii) was unaware of the nature or extent of personal injury suffered; or

(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and

(b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii).”

11 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that:

(1) As at 17 November 1993 (the expiration of the relevant limitation period) she was unaware of one or more of the matters identified in s 60I(1)(a)(i), (ii) or (iii);

(2) That she did not become aware of that or those or she ought to have become aware in s 60I(1)(a) (or the last of those matters to become known to her) earlier than 4 April 1994.

12 The practical effect is to require the plaintiff to identify specifically what fact or facts she claims not to have known as at 17 November 1993, which lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I(1)(a); and to show by (evidence) the date on which she acquired knowledge thereof (being a date later than 17 November 1993); or to show that that fact was or those facts were still unknown to her on that date. The defendant submitted that the plaintiff ought to have become aware of the matters listed in paragraphs (ii)-(iii) at an earlier date - see s 60I (1)(b).

13 Counsel indicated that the plaintiff relied on s 60I(1) (a)(ii) and (iii).

(ii) Whether the plaintiff has proved that she was “unaware of the nature or extent of the personal injury suffered ”

14   The plaintiff submitted that she was not aware of her psychiatric condition until she read Dr Metcalf’s report shortly after she received if from her solicitor in about September 1995. The defendant submitted that the plaintiff knew that she had a psychological condition, knew of its symptoms and that it would be of a permanent nature. Alternatively, the defendant submitted that the plaintiff “ought to have been aware of the above” prior to the expiration of the limitation period.

15 The test of knowledge posed by s 60I(1)(a)(ii) requires the court to look at the actual awareness of the plaintiff. Neither the reasonableness of that awareness nor constructive knowledge is an element of s 60I(1)(a) - (Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 at pp 9 and 10). However, s 60I(1)(b) imposes an objective test - “became aware (or ought to have become aware)” of all three matters listed in paragraphs (a)(i)-(iii). The defendant did not submit that the plaintiff “ought to have known” the nature or extent of her injuries.

16   The nature and extent of the injury which the plaintiff has sustained is to be determined as at the date of the hearing of the application (Harris at pp 13 and 14). A plaintiff may be held to have been aware of the nature or extent of her injury within the relevant period, if during that period she was aware of the effect which the injury was then having upon her and of its likely future course, even though she may have been unaware of the precise pathology or medical diagnosis. On the other hand, knowledge of the medical diagnosis will not in itself amount to knowledge of the nature or extent of the injury if the plaintiff is unaware of significant aspects of the prognosis. For example, that the injury is permanent and will not be amenable to treatment; or that it may deteriorate with the passage of time. As long as the consequences are of a kind that the plaintiff expects, the plaintiff will be aware of the extent of the injury. The words “become aware” means that the plaintiff must have knowledge and awareness of the fact that such a statement was given.

17   As was stated by the Full Federal Court in Commonwealth of Australia v Dinnison (1995) 56 FCR 389 (per Gummow and Cooper JJ at 402) it is important to appreciate that the personal injury that the plaintiff suffered was a psychiatric illness. It should also be appreciated that it is the perception of the plaintiff which is important.

18 In June 1993 the plaintiff prepared a statement to her solicitor and she stated that it had been three years since her daughter’s birth and since then she had been riddled with guilt every day and has suffered from emotional trauma. She spoke of breaking down in tears, feeling suicidal and how she was emotionally unable to get pregnant again for fear of losing another child. She suspected it would always be that way. In 1995 she recounted to Dr Metcalf that since the birth of her first child to the present time she was aware that she suffered depression, anxiety, of being plagued by dreams of unhappy content and intrusive thoughts. Under cross examination the plaintiff stated that she pretty well knew that she suffered psychological trauma prior to reading Dr Metcalf’s report but that was the first time that she had seen it in writing (t 5). She knew this shortly after the stillbirth of her child. Dr Metcalf did not make a diagnosis of a psychiatric disorder. He said that she had been significantly disturbed for about a year which was complicated by the depressive aspects of her loss. It is my view the plaintiff knew shortly after the birth of her first child that she suffered from psychological trauma. She knew she suffered from the symptoms which have been described above. She knew that she would suffer from these symptoms to some extent for the rest of her life. It is my view that the plaintiff was aware of both the nature and extent of her psychiatric injury prior to the expiration of the limitation period. The plaintiff's claim under s 60I(1)(a)(ii) fails.

(iii) Whether the plaintiff was unaware of the connection between personal injury and the defendants’ acts or omissions

16 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s 60G. Those acts or omissions, will be found in the plaintiff’s particulars of negligence. - Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995).

19   The plaintiff submitted that she was unaware of the connection between the personal injury and Dr Hoolahan’s acts or omissions until she was told on 18 September 1996 by Rosie Pendlebury from the HCCC. Paragraph 31 of the plaintiff’s affidavit gives evidence to this effect. the defendants submitted that the plaintiff knew of Dr Hoolahan’s acts or omissions when she read Dr Pfanner’s report in June 1993.

20   To determined whether this is so it is necessary to have recourse to the transcript. The plaintiff gave evidence that up until 18 September 1996 there was no suggestion that Dr Hoolahan had done anything wrong in the way he managed her pregnancy (t 5.30). Rosie Pendlebury telephone the plaintiff and asked her if she was taking any action against Dr Hoolahan. Ms Pendlebury said that on reviewing the file and going through all the documents, she considered that there may well be a cause of action against Dr Hoolahan as well as the Illawarra Health Service. By that the plaintiff understood Ms Pendlebury was saying that Dr Hoolahan was partly at fault for the death of her daughter (t 6).

21   In 1992 the plaintiff told her then solicitor, Mr O’Brien that something should have been done during the week preceding the 19 November 1990. However, nowhere in her statement does she consider that Dr Hoolahan was to blame. Rather she spoke of being reassured when Dr Hoolahan took over her care. On around 23 June 1993 the plaintiff admitted that she read Dr Pfanner’s report although she does not remember it. The plaintiff acknowledged that when she received this report she read it (t 18). Dr Pfanner did not specifically refer to either Dr Hoolahan of Dr Hoult by name in his report. When the plaintiff read the report she understood that Dr Pfanner spoke of a “scenario that could have been done” and then agreed that these things “ought to have been done” (t 9.15-20). The plaintiff under cross examination agreed that Dr Pfanner was saying that by 10 November 1990, steps should have been taken to deliver the baby urgently. She also understood that at 1800 hours on 16 November 1990 she was under the care of Dr Hoult, and she understood Dr Pfanner was saying that at that time something should have been done urgently. She was then asked:

“Q. You understood when you read that report that what Dr Pfanner was saying was that both Dr Hoolahan and Dr Hoult should have done things, in his opinion, that they had not done.
A. Well I don’t really know to be honest.”

22   In 1993 when the plaintiff read Dr Pfanner’s report she understood that he was being critical of Dr Hoult. She did not dissemble it to read that on 10, 11 or possibly 12 November 1990 Dr Hoolahan could have done something differently. At 8.00 pm on 16 November 1990 Dr Hoolahan came to the hospital and examined the CTG and said that it was abnormal. He said that if she did not go into labour he would induce her the next morning. She did not realise until the findings of the HCCC that Dr Hoolahan should have done something at 8.00 pm rather than waiting until the next morning. The plaintiff understood on her reading of Dr Pfanner’s report in court that Dr Pfanner was saying the baby should have been delivered earlier, namely, on the 10, 11 or possibly 12 November 1990. I have come to the view that the plaintiff did not realise that Dr Hoolahan should have induced her baby on 10, 11 or possibly 12 November 1990 or immediately on the night of 16 November 1990 until after she was told by Ms Pendlebury on 18 September 1996. It was on or after the 18 September 1996 that she had a cause of action against Dr Hoolahan.

23 However, the defendants submitted that she “ought to have become aware” of Dr Hoolahan’s role when she read Dr Pfanner’s report. Section 60I(1)(i)(b) imports a notion of constructive knowledge but it does not import concepts involving the hypothetical reasonable man (or woman) - see CRS Ltd v Martignango (1995-96) 39 NSWLR 13 at 20, 21, 22. I do not think it is reasonable for the plaintiff to have to read into Dr Pfanner’s report that Dr Hoolahan was negligent by not inducing the baby earlier, either on 10, 11 or the night of 16 November. The plaintiff has passed through the s 60I(1)(a)(iii) gateway.

Just and reasonable

24   I turn now to consider whether it is just and reasonable to extend the limitation period. The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Taylor. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. The Court of Appeal has applied Taylor in relation to s 60G in Giudice and Commonwealth of Australia v McLean (1997) 14 NSWLR at 389.

25 Firstly, I turn to consider whether the plaintiff has a real case to advance. In relation to s 60G, the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff’s cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish her cause of action. (See Szerdahelyi v Bailey (unreported NSWSC, Badgery-Parker J, 1 May 1997); Ortado v Bailey (unreported NSWSC, Badgery-Parker J, 1 May 1997); Lewis v Bailey (unreported NSWSC, Badgery-Parker J, 1 May 1997); Zegarac; Dow Corning Australia Pty Ltd v Paton, Meares v Paton (unreported, NSWCA, 24 April 1998) and Fitzgerald v Bankstown City Council (unreported, NSWCA, 6 November 1995)). It was not disputed that the plaintiff has a real case to advance. In relation to the defendant’s negligence, there are the reports of Dr Pfanner of 8 June 1993 and Dr Child of 17 January 1997. Dr Child stated:

“With the limited information provided, all I can really say is that the patient had severe pre-eclampsia and in my opinion the optimal management would be deliver at term. I can see no indication for allowing the pregnancy to continue any longer. If the cervix is unfavourable then there are options for inducing labour using Prostaglandin although this may not have been available in Nowra in 1990. The other alternative is to carry out Caesarean section and in my opinion this would have been the appropriate management for this patient.”

26   There is medical evidence to establish that the plaintiff has suffered from a psychiatric state, namely the report of Dr Metcalf of 11 September 1995. The plaintiff has a real case to advance.

27   In determining whether it is just and reasonable to extend the limitation period in this application I will examine whether the delay has made “the chances of a fair trial unlikely” or whether the defendant would suffer “significant prejudice”. - see Taylor and Zegarac.

28   In disputably there is presumptive prejudice. The defendants did not put on any evidence to establish that they suffered actual prejudice. The hospital records and those of Dr Hoolahan are available. It appears that both doctors are alive and they have not deposed as to the state of their recollection.

29   The plaintiff has not acted as expeditiously as she could have. However, it is not clear if this is in part attributable to her or her former solicitor for the period 1992 to 1995. Nor has she or her current solicitor acted expeditiously in more recent times. Due to the inaction by the plaintiff, the court wrote to the parties pointing out that the matter could be dismissed pursuant to Part 32A r 2. It was only by court action and letters by the defendants that this application was brought to hearing. I accept the hospital records went missing from 1996 and were not located until 20 January 1998. The plaintiff was hampered during the preparation of her case. Dr Child refers to the difficulties in writing his report without the records. I am satisfied that the defendants’ chances of a fair trial are not unlikely nor do they suffer significant prejudice. I have come to the view that the plaintiff has discharged her onus and it is just and reasonable to extend the limitation period.

30   As foreshadowed, I decline to strike out or dismiss these proceedings pursuant to Part 33 r 8 or Part 32A r 2. The plaintiff has sought that the matter be transferred to the District Court. The defendants do not oppose this course. As the matter is unlikely to exceed the jurisdictional limited of the District Court I accede to the plaintiff’s request. I make an order to transfer these proceedings to the District Court, Sydney registry.

31   Costs are discretionary. The defendants seek their costs as they submit that by writing letters and filing motions caused this matter to be brought to a hearing. One of the motions was filed after the matters were listed for hearing. The plaintiff has sought an indulgence from the court. I take into account that she was hampered by the misplacing of the hospital records by one of the defendants. It is my view that costs should be costs in the cause.

32   The orders I make are:

(1) The plaintiff is granted an extension of the limitation period in relation to a cause of action involving the stillbirth of her child, Jessica born on 17 November 1990 up to and including 23 June 2000.

(2) A statement of claim is to be filed and served within 14 days.

(3) The matter is transferred to the District Court Sydney Registry.

(4) Costs are costs in the cause.
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Last Modified: 09/26/2000