Gilmore v Waugh - [2012] NSWCA 263

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gilmore v Waugh [2012] NSWCA 263
Hearing dates: 19 June 2012
Decision date: 24 August 2012
Before: Campbell JA at [1];
Macfarlan JA at [2];
Meagher JA at [78]
Decision:
Application for leave to appeal 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: LIMITATION OF ACTIONS - medical negligence - proceedings against general practitioner - extensions of time sought to join two specialists (the respondents) - failure to show viable causes of action and adequately explain delay - whether "just and reasonable" to extend time - whether applicant satisfied gateway provisions under Limitations Act 1969 (NSW) ss 60E(1) and 60I - no error by primary judge in refusing extensions
Legislation Cited: Civil Liability Amendment (Personal Responsibility) Act 2002
Limitation Act 1969
Cases Cited: Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56
Harris v Commercial Minerals Ltd [1996] HCA 49; 186 CLR 1
Rutter v State of NSW [2005] NSWCA 231
Warren v Coombes [1979] HCA 9; 142 CLR 531
Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497
Yu v Speirs [2001] NSWCA 373
Category: Principal judgment
Parties: Peter Hugh Walter Gilmore (Applicant/Appellant)
David Waugh (First Respondent)
Gavin Barr (Second Respondent)
Representation: Counsel:
R Sheldon SC/P Knowles (Applicant/Appellant)
S R Donaldson SC/G B Evans (Respondents)
Solicitors:
Stacks Goudkamp (Applicant/Appellant)
TressCox Lawyers (Respondents)

File Number(s): CA 2005/269136
Decision under appeal

Citation:

Gilmore v Quittner [2011] NSWSC 809

Date of Decision:

2011-08-02 00:00:00

Before:

Hall J

File Number(s):

SC 2005/269136

Judgment

CAMPBELL JA: I agree with Macfarlan JA.

MACFARLAN JA:

SUMMARY OF CASE AND CONCLUSIONS

On 23 March 2005 Mr Peter Gilmore commenced proceedings in the Professional Negligence List of the Supreme Court against his former general medical practitioner, Dr George Quittner, claiming damages for negligence. Mr Gilmore alleged that on a number of occasions between early 1993 and December 1998 Dr Quittner negligently failed to arrange for Mr Gilmore to be tested for the Hepatitis C Virus ("HCV"). Mr Gilmore alleged that he had HCV from at least early 1993, that that fact was not ascertained until August 2001 and that as a result of Dr Quittner's negligence he suffered significant harm, including permanent kidney damage resulting in chronic renal impairment.

On 3 April 2009 Mr Gilmore filed a Notice of Motion in the proceedings against Dr Quittner seeking orders under the Limitation Act 1969 extending the period for institution of proceedings against Dr David Waugh and Dr Gavin Barr to permit their joinder as second and third defendants to the proceedings.

Dr Waugh is a consultant nephrologist to…

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 Gilmore v Waugh

Details

AGLC: Gilmore v Waugh [2012] NSWCA 263
Case: [2012] NSWCA 263
Decision Date: 24 August 2012

CaseChat Overview and Summary

The applicant, Gilmore, sought to appeal a decision of the primary judge who had refused to grant extensions of time to join two specialist medical practitioners as defendants in proceedings alleging medical negligence against a general practitioner. The appeal was heard by Campbell JA, Macfarlan JA, and Meagher JA in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge had erred in refusing the extensions of time sought by the applicant. Specifically, the court considered whether the applicant had satisfied the gateway provisions under sections 60E(1) and 60I of the *Limitations Act 1969* (NSW), which govern the granting of extensions of time for bringing proceedings. This involved determining whether the applicant had demonstrated viable causes of action against the specialists and adequately explained the delay in seeking to join them.

The Court of Appeal found no error in the primary judge's refusal to grant the extensions. The reasoning focused on the applicant's failure to establish that there were viable causes of action against the specialists and to provide an adequate explanation for the significant delay in initiating proceedings against them. The court applied the principles established in the *Limitations Act 1969* (NSW) concerning the requirements for granting extensions of time, particularly the need to demonstrate a "just and reasonable" basis for such an extension.

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

Orders

Orders of the court

Application for leave to appeal 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:	Gilmore v Waugh [2012] NSWCA 263
Hearing dates:	19 June 2012
Decision date:	24 August 2012
Before:	Campbell JA at [1]; Macfarlan JA at [2]; Meagher JA at [78]
Decision:	Application for leave to appeal 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:	LIMITATION OF ACTIONS - medical negligence - proceedings against general practitioner - extensions of time sought to join two specialists (the respondents) - failure to show viable causes of action and adequately explain delay - whether "just and reasonable" to extend time - whether applicant satisfied gateway provisions under Limitations Act 1969 (NSW) ss 60E(1) and 60I - no error by primary judge in refusing extensions
Legislation Cited:	Civil Liability Amendment (Personal Responsibility) Act 2002 Limitation Act 1969
Cases Cited:	Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56 Harris v Commercial Minerals Ltd [1996] HCA 49; 186 CLR 1 Rutter v State of NSW [2005] NSWCA 231 Warren v Coombes [1979] HCA 9; 142 CLR 531 Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 Yu v Speirs [2001] NSWCA 373
Category:	Principal judgment
Parties:	Peter Hugh Walter Gilmore (Applicant/Appellant) David Waugh (First Respondent) Gavin Barr (Second Respondent)
Representation:	Counsel: R Sheldon SC/P Knowles (Applicant/Appellant) S R Donaldson SC/G B Evans (Respondents) Solicitors: Stacks Goudkamp (Applicant/Appellant) TressCox Lawyers (Respondents)
File Number(s):	CA 2005/269136
Decision under appeal	Citation: Gilmore v Quittner [2011] NSWSC 809 Date of Decision: 2011-08-02 00:00:00 Before: Hall J File Number(s): SC 2005/269136