Gillett v Robinson - [2012] NSWCA 270

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gillett v Robinson [2012] NSWCA 270
Hearing dates: 27 August 2012
Decision date: 31 August 2012
Before: Barrett JA
Decision:
Notice of motion filed on 10 May 2012 seeking extension of time dismissed with costs.
[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: APPEAL AND NEW TRIAL - time for initiation of appeal - application for extension of time - extent of delay considered - potential strength of appeal considered - prejudice to respondent considered - no sufficient case for extension shown
Legislation Cited: Civil Procedure Act 2005, ss 56, 57, 58, 59
Uniform Civil Procedure Rules, rules 31.28, 51.8
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd [2009] NSWCA 104
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61
Category: Interlocutory applications
Parties: Halina Gillett - Applicant
Jeffrey Robinson - Respondent
Representation: D E Graham/N J Broadbent - Applicant
J K Kirk SC/H Pintos-Lopez - Respondent
Catherine Henry Partners - Applicant
Ashurst Australia - Respondent

File Number(s): 2012/149700
Decision under appeal

Citation:

Gillett v Robinson [2011] NSWSC 1143

Date of Decision:

2011-09-26 00:00:00

Before:

Harrison J

File Number(s):

2006/267258

Judgment

Halina Gillett ("the applicant") seeks, by notice of motion filed on 10 May 2012, an extension of time for the filing of a notice of appeal.

The applicant was the unsuccessful plaintiff in proceedings brought in the Common Law Division against Jeffrey Robinson ("the respondent"), a medical practitioner who, as a specialist obstetrician, attended the applicant's mother when she gave birth to the applicant in 1985. The claim was, in essence, that the respondent breached a duty of care owed to the applicant by not advising the mother appropriately, as a result of which the applicant suffered injury in the form of shoulder dystocia in the course of delivery per vaginam.

The proceedings were heard by Harrison J on 1, 2, 3 and 5 August 2011. Judgment adverse to the applicant was given on 26 September 2011. At an earlier stage - in fact, on the first day of the trial - Harrison J dismissed an application by the applicant, as plaintiff, for leave to amend the statement of claim and to rely on new expert evidence. His Honour published reasons for that decision on 12 August 2011.

The applicant was represented by counsel on the first day of the trial. Counsel withdrew after the ruling just mentioned. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gillett v Robinson

Details

AGLC: Gillett v Robinson [2012] NSWCA 270
Case: [2012] NSWCA 270
Decision Date: 31 August 2012

CaseChat Overview and Summary

In *Gillett v Robinson*, the applicant sought an extension of time to file an appeal against a judgment of the primary court. The respondent opposed the application.

The central legal issue before the Court of Appeal was whether sufficient grounds existed to grant an extension of time for the applicant to initiate their appeal, given the significant delay that had already occurred. The Court was required to consider the extent of the delay, the potential strength of the proposed appeal, and any prejudice that might be suffered by the respondent if the extension were granted.

Barrett JA dismissed the application, finding that no sufficient case had been made out for an extension of time. The Court applied the principles governing applications for extensions of time to appeal, which require a demonstration of a strong arguable case and that the delay is excusable, balanced against the prejudice to the respondent. The applicant's failure to establish these elements led to the dismissal.

The notice of motion seeking an extension of time was dismissed with costs.

Orders

Orders of the court

Notice of motion filed on 10 May 2012 seeking extension of time dismissed with costs.

[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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Medium Neutral Citation:	Gillett v Robinson [2012] NSWCA 270
Hearing dates:	27 August 2012
Decision date:	31 August 2012
Before:	Barrett JA
Decision:	Notice of motion filed on 10 May 2012 seeking extension of time dismissed with costs. [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:	APPEAL AND NEW TRIAL - time for initiation of appeal - application for extension of time - extent of delay considered - potential strength of appeal considered - prejudice to respondent considered - no sufficient case for extension shown
Legislation Cited:	Civil Procedure Act 2005, ss 56, 57, 58, 59 Uniform Civil Procedure Rules, rules 31.28, 51.8
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd [2009] NSWCA 104 Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61
Category:	Interlocutory applications
Parties:	Halina Gillett - Applicant Jeffrey Robinson - Respondent
Representation:	D E Graham/N J Broadbent - Applicant J K Kirk SC/H Pintos-Lopez - Respondent Catherine Henry Partners - Applicant Ashurst Australia - Respondent
File Number(s):	2012/149700
Decision under appeal	Citation: Gillett v Robinson [2011] NSWSC 1143 Date of Decision: 2011-09-26 00:00:00 Before: Harrison J File Number(s): 2006/267258