Martin v von Marburg

[2025] NSWDC 259

District Court

New South Wales

Medium Neutral Citation:

Martin v von Marburg [2025] NSWDC 259

Hearing dates:

6 June 2025

Date of orders:

18 July 2025

Decision date:

18 July 2025

Jurisdiction:

Civil

Before:

Cole DCJ

Decision:

(1) Pursuant to s 62A of the Limitations Act 1969, the time within which proceedings may be brought by the plaintiff against the defendant in relation to the causes of action the subject of the Statement of Claim filed in this matter on 21 December 2023 is extended to 21 December 2023, and the plaintiff has leave nunc pro tunc to commence proceedings against the defendant by the Statement of Claim filed on 21 December 2023.

Catchwords:

CIVIL PROCEDURE — Time — Extension of time – application to extend the 12 year long-stop limitation period – ascertaining the date on which the cause of action was discoverable – matters relevant to the exercise of discretion

Legislation Cited:

Bankruptcy Act 1966 (Cth)

Limitation Act 1969 (NSW)

Medical Indemnity Act 2002 (Cth)

Cases Cited:

Baker-Morrison v State of New South Wales [2009] NSWCA 35

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Health Care Complaints Commission v Von Marburg [2019] NSWCATOD 85

State of New South Wales v Gillett [2012] NSWCA 83

Vonhoff v Hillier [2024] NSWSC 1285

Category:

Procedural rulings

Parties:

Nicholas Martin (Plaintiff)
Roland von Marburg (Defendant)

Representation:

Counsel:
B Dooley SC (Plaintiff)
K Holcombe (Defendant)

Solicitors:
Melinda Griffiths Lawyers (Plaintiff)
Meridian Lawyers (Defendant)

File Number(s):

2023/463850

Publication restriction:

Nil

JUDGMENT

1. A Statement of Claim was filed in this matter on 21 December 2023 by the plaintiff, Mr Nicholas Martin. The claim alleges medical negligence and trespass against the defendant, Mr Roland von Marburg, in relation to a consultation that took place between the parties on 16 April 2003 and in relation to surgery performed upon Mr Martin by Mr von Marburg on 13 May 2003. Mr von Marburg has retired and is no longer a registered medical practitioner, but, at all relevant times in relation to these proceedings, he was an ear, nose and throat surgeon.

2. In his Statement of Claim, Mr Martin sets out the following “injuries and disabilities” which, he claims, have arisen from Mr von Marburg’s alleged breach of his duty of care to Mr Martin:

1. Damage to the left inner and middle ear;

2. Creation of a fistula;

3. Ongoing aural fullness

4. Irreversible vestibular injury

5. Ongoing vestibular symptoms of:

6. Vestibular migraine

7. Severe dizziness

8. Severe overbalancing

9. Permanently affected balance

10. Left sided sensorineural hearing loss

11. Failure of cochlear implant

12. Systemic complications of high dose steroid use

13. Impact on work, social activity and domestic responsibilities

14. Depression and psychological injury.

3. Mr Martin claims damages.

4. The proceedings have been commenced more than twenty years after the consultation and the surgery.

5. In his Defence, Mr von Marburg pleads that the claim is statute barred pursuant to s 50C(1)(b) of the Limitation Act 1969 (NSW) (‘the Act’).

6. On 6 March 2025, Mr Martin filed a Notice of Motion seeking “leave nunc pro tunc to commence proceedings against the Defendant pursuant to s 62(A) Limitations Act 1969”.

7. At the hearing of the Notice of Motion, Mr Martin relied upon four affidavits:

• an affidavit of Ms Melinda Griffiths, sworn on 12 March 2025,

• his own affidavit sworn on 31 March 2025,

• an affidavit of Ms Naomi Martin, the plaintiff’s wife, sworn on 31 March 2025,

• an affidavit of Mr Geoffrey David Allen affirmed on 3 June 2025 and served on 4 June 2025.

8. Both Mr and Ms Martin were cross-examined at the hearing of the Notice of Motion.

Limitation Act 1969

9. The Act provides, relevantly, as follows, in s 62A and s 62B, which are in Division 4 of Part 3 of the Act:

62A   Extension of 12 year long-stop limitation period

(1) A person claiming to have a cause of action to which Division 6 of Part 2 applies may apply to a court for the extension of the 12 year long-stop limitation period applicable to the cause of action under that Division.

(2) The court is to hear such of the persons likely to be affected by the application as it sees fit and may, if it decides that it is just and reasonable to do so, order the extension of the 12 year long-stop limitation period applicable to the cause of action for such period as the court determines, but not so as to extend that period beyond the period of 3 years after the date on which the cause of action is discoverable (within the meaning of Division 6 of Part 2) by the plaintiff.

(3)  If a court orders the extension of the 12 year long-stop limitation period for a cause of action under this section, that limitation period is accordingly extended for the purposes of—

(a)  an action brought by the applicant in that court on the cause of action that the applicant claims to have, and

(b)  section 26 (1) (b) in relation to any associated action for contribution under section 5 (1) of the Law Reform (Miscellaneous Provisions) Act 1946 brought by the person against whom that cause of action lies.

…

62B   Matters to be considered in determining application for extension of 12 year long-stop limitation period

(1) In exercising the powers conferred on it by section 62A, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following—

(a)  the length of and reasons for the delay,

(b)  the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available,

(c)  the nature and extent of the plaintiff’s injury or loss,

(d)  any conduct of the defendant that induced the plaintiff to delay bringing the action,

(e)  the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received,

(f) the time when the cause of action was discoverable (within the meaning of Division 6 of Part 2) by the plaintiff.

…

10. The relevant parts of Division 6 of Part 2 of the Act provide as follows:

Division 6 Personal injury actions

50A   Application of Division—kinds of causes of action

(1)  This Division applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise.

(2)  This Division applies only to causes of action where the act or omission alleged to have resulted in the injury or death with which the claim is concerned occurs on or after the commencement of this Division (as inserted by the Civil Liability Amendment (Personal Responsibility) Act 2002).

…

50C   Limitation period for personal injury actions

(1)  An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire—

(a)  the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,

(b)  the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.

Note—

The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3.

…

50D   Date cause of action is discoverable

(1)  For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts—

(a)  the fact that the injury or death concerned has occurred,

(b)  the fact that the injury or death was caused by the fault of the defendant,

(c)  in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2)  A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.

(3)  In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

…

11. Mr Martin’s claim is a claim in tort for damages for personal injury caused by negligent medical advice and treatment. The provisions of the Act set out above therefore apply to Mr Martin’s claim.

12. It is common ground that the claim is not maintainable unless an extension of the 12 year long-stop limitation period to 21 December 2023 is granted to Mr Martin under s 62A of the Act. The acts or omissions relied upon for the claim occurred on 16 April 2003 and 13 May 2003. The 12 year long-stop limitation period expired on 15 April 2015 and 12 May 2015. The claim is more than eight years and seven months out of time.

13. Mr Martin seeks an extension of time to 21 December 2023 and Mr von Marburg opposes the granting of an extension.

14. In addition to bearing the burden of establishing that the court should exercise its discretion to extend the 12 year long-stop limitation period, pursuant to s 62A(2) of the Act, Mr Martin needs to establish that his claim was not discoverable more than three years prior to the filing of his Statement of Claim.

Evidence

15. In Mr Martin’s affidavit of 31 March 2025, he sets out the following:

3.   On 28 March 2003 I was referred by Dr Steele to Dr Von Marburg.

4.   I attended on Dr Von Marburg who recommended I undergo surgery in the form of a left labyrinthectomy.

5.   On 13 May 2003 I signed consent to undergo a left labyrinthectomy.

6.   Immediately following surgery, I made complaints of dizziness, headaches and still had complaints of pressure sensation in my head.

7.   I have subsequently undergone multiple treatment and surgery. [sic]

8.   Subsequent to this surgery I have undergone significant medical treatment annexed hereto and marked with the letter “a” is a chronology of medical treatment I have undertaken.

9.   I continued to consult Dr Von Marburg who prescribed steroids for treatment of my ongoing symptoms. I consulted Dr Von Marburg on average three or four times per annum with my last appointment occurring in April 2017.

…

12.   Due to ongoing symptoms my GP referred me to Dr Claire Iseli, at this time I had complaints of episodic vertigo, which was worse progressive left worse than right, I had lost all by hearing in my left ear, and suffered from intermittent tinnitus. [sic]

13.   On 30 July 2018 I consulted Dr Claire Iseli who recommended surgery in the form of a cochlear implant.

14.   On 22 November 2018 I underwent surgery for the insertion of a cochlear implant by Dr Claire Iseli.

15.   After I was returned to the ward Dr Claire Iseli attended upon me she said “when I opened your ear up to undertake the surgery, I found that there was a hole in your inner ear which had been caused by the surgery that you had with Dr Von Marburg. I had to make up a mixture of bone and glue to try to repair the hole”.

16.   She went on to say,“I am hoping that the mixture will hold but it may not last, and we will need to redo the repair”. She then said to me “I do not normally advocate to patients to sue Doctors however I think you should seek legal advice”.

17.   Over the coming months I noticed that the hearing for my left ear had deteriorated, I consulted Dr Iseli. She advised that she believed that the repair to the hole in my ear had failed and that I would need to undergo further testing and surgery to repair the same.

18.   On 27 June 2019 I underwent surgery to redo the repair to the hole in my ear.

19.   After recovering from the surgery Dr Iseli said to me “the surgery went well however each time you have surgery we had to cut more nerves and that could result in you suffering more pain” she then said “Dr Von Marburg should never operate again, I think you should get legal advice as to the damage that he has done to your ear”. [sic]

…

21.   On 17 July 2019 I attended an appointment with David Allen solicitor at Harris Lieberman Lawyers. I attended to seek advice from David Allen Solicitor (herein referred to as former solicitor), in relation to the treatment provided to me by the Defendant.

22.   David Allen advised that he needed to obtain copies of my clinical notes and hospital records before he could provide advise if I had a viable claim. [sic]

23.   On 20 January 2020 I was contacted by the offices of David Allen who advised me that he had received all clinical notes and arranged an appointment for my wife and I to attend at his offices to discuss my claim on 29 January 2020.

24.   During the conference it was explained to me by my former lawyer that Dr Von Marburg may not have professional negligence insurance and had filed for bankruptcy. He advised that he was aware through another lawyer that Dr Von Marburg had no insurance at various periods of time and that he needed to undertake further investigations to determine if there was indemnity insurance to cover my claim.

25.   David Allen said to me “to commence proceedings out of time there is a 12 year long stop limitation period, this would have expired in 2015, however as the damage or injury caused by Dr Von Marburg was not discoverable until the surgery performed by Dr Iseli in November 2018, this period will not expire until November 2021”.

26.   On 24 November 2020 a further appointment was arranged with the offices of my former lawyers, and I was requested to attend a conference with David Allen. At this time, I was advised that currently there was no insurance for Dr Von Marburg and that he should not notify the Defendant of the claim. He said to me “as professional negligence insurance runs from the time that the claim is made, we should not notify the Doctor of the claim as there would be no cover for your claim”.

27.   On 13 January 2021 a further appointment was arranged by the offices of my former lawyer to confer with David Allen. At this time, he said to me “it is likely that the government is introducing ROCS which is an insurance cover to cover doctors after they cease practice. It is likely to take another 10 months for this to be established and you should hold off commencing the claim until this has been established”.

28.   Between October to November 2021 my wife telephoned the offices of David Allen on a number of occasions to ask if proceedings had been commenced yet. My wife said to me on each occasion “he said not to worry that due to Covid there is a grace period, and proceedings can wait to be filed”.

29.   On 3 December 2021 David Allen forwarded correspondence to me confirming that due to legislative changes that I would be eligible to make a claim under the Doctors insurance policy.

30.   David Allen advised that he would be arranging assessments for me to be assessed by a medicolegal expert.

31.   On 2 March 2022 I was assessed by Dr Tomich.

32.   On 3 March 2022 my wife and I attended at the offices of my former lawyer who requested that I attend on Dr Claire Iseli and request copies of the images that she took during the surgery of the damage to my ear.

33.   I am aware that my wife telephone the offices of David Allen on a number of occasions over the 2022 year requesting updates on the claim. My wife had told me that “David said that he was filing the same in the next week”, and after her last call was advised that the claim had been filed in court”. [sic]

34.   On 9 March 2023 I attended on the offices of David Allen in which he advised that he was leaving the firm and that the firm were no longer undertaking NSW based personal injury claims. He advised that he had conferred with Melinda Griffiths Lawyers who were able to take over the claim. He then joined Adam Clements to the conference via AVL to introduce us to him and discuss the transfer of my file.

35.   During the course of the conference Adam Clements said to David Allen “have proceedings commenced, David Allen replied “no, I have not filed the claim yet”.

36.   This was the first time that I was aware that the claim had not been lodged in the court.

37.   Over the coming months, I was advised by Adam Clements, that he was seeking advice on the insurance coverage prior to commencing proceedings.

38.   On 21 December 2023 I was advised by the offices of Melinda Griffiths Lawyers that proceedings had been commenced in the court in relation to my claim.

16. Ms Martin’s evidence was broadly consistent with Mr Martin’s evidence and added further information.

17. Ms Martin attended every appointment Mr Martin had with Mr von Marburg.

18. In her affidavit of 31 March 2025, Ms Martin said:

9.   At no time did Dr Von Marburg advise my husband that the surgery that he undertaken was not the surgery that he had consented to or that he had left a hole in his inner ear. [sic]

19. Ms Martin also attended the appointments Mr Martin had with Dr Iseli. In her affidavit, Ms Martin said:

14.   On 22 November 2018 my husband was admitted for surgery for insertion of a cochlear implant by Dr Claire Iseli.

15.   During the surgery I received a telephone call from Dr Claire Iseli who said to me “there is a complication with the surgery, when we opened your husband’s ear up we found that there was damage from the surgery performed by Dr Von Marburg, I can see where he entered the inner ear and he has done it from the wrong angle and left a hole in your husband’s inner ear which I need to repair, I will make a mix of bone and glue and do my best to repair the hole, but your husband has already been under sedation for 4.5 hours and I do not want to keep him under much longer. The repair may not last, and it may need to be redone”. She further went on to say, “I know what operation he was attempting the angle he has entered the ear from is incorrect, and has caused damage, it is no wonder your husband has chronic headaches, he has destroyed the inner ear and made it unstable”. The problems your husband has with his balance, pain and headaches is caused by the damage that Dr Von Marburg has done to the ear and surrounding nerves. [sic]

20. In cross-examination, Mr Martin agreed that Ms Martin told him what Dr Iseli said to her in the telephone call during the surgery, but he indicated that he was “pretty groggy” after the surgery, and his memory of what he was told was not comprehensive.

21. Ms Martin said that Mr Martin underwent further surgery on 27 June 2019 to redo the repair to the hole in his ear. Ms Martin said:

19.   Again after recovering from the surgery Dr Iseli attended in the ward with my husband and I and said to us “the surgery went well however each time you have surgery we had to cut more nerves and that could result in you suffering more pain” she then said “Dr von Marburg should never operate again. I think you should get legal advice as to the damage he has done to your ear”.[sic]

22. It is common ground that Mr von Marburg ceased to practice medicine in October 2017 and that he had not reached the age of 65 years old at that time.

23. Annexure B to the affidavit of Ms Griffiths of 12 March 2025 is a letter from Harris Lieberman Solicitors to Mr Martin dated 17 July 2019 which records that Mr Martin attended the Wodonga offices of Harris Lieberman on 11 July 2019 to discuss his “medical negligence claim” in relation to Mr von Marburg’s advice and his actions. The letter is under the name of David Allen. The letter says, among other things:

You reported [ie to David Allen on 11 July 2019] that you returned to Dr Von Marburg regarding a problem with your left ear. You have instructed that you had approached Dr Von Marburg for advice in relation to Meniere’s disease. You report that you were suffering with dizziness and balance problems and thought that you may have an inner ear disorder. You were suffering with pressure in your head and what you believed to be was tinnitus. [sic]

You have instructed that when you returned to Dr Von Marburg he drilled a hole in your ear. After that procedure you basically went deaf in the left ear.

As recently as November 2018 you attended with Dr Claire Iseli. Dr Iseli was performing a cochlear implant procedure in the hope that you would hear again in your left ear. You have instructed that after the procedure was performed, Dr Iseli approached you with some concerns that she had witnessed upon performing the cochlear implant procedure. You have instructed that Dr Iseli said to you words to the effect “Dr Von Marburg should be shot. He has made a mess of your ear”. You have instructed that she also said “I spent ages stabilising your inner ear”.

You are of the understanding that when Dr Von Marburg performed the drilling procedure he drilled into the incorrect area in your ear. He drilled into a pretzel shaped bone in your inner ear and shattered it. Dr Iseli has advised you that the poor operative technique fell below the standard of practice commonly accepted by ENT surgeons as competent professional practice. You have been advised that the damage to your inner ear cannot be repaired and you have been experiencing further problems since Dr Von Marburg performed the drilling procedure.

Your inner ear problems have caused you to suffer with severe disabilities, including terrible overbalancing. I note your instructions that your staggering and overbalancing have become so bad that security guards in licensed premises have mistakenly thought that you were intoxicated.

You have sought our advice in relation to pursuing Dr Von Marburg for damages arising from what you believe to be negligent treatment.

…

Once we investigate your matter, we intend to brief a barrister to advise further on the evidence that we have collected and to draw the necessary Statement of Claim if we are of the view that the claim is likely to succeed in Court.

…

24. Medical reports of Dr Iseli, one of Mr Martin’s treating Otolaryngologists and Head and Neck Surgeons, and Dr Tomich, an independent expert in the same field, were tendered.

25. The earliest written report of Dr Iseli which supports aspects of the claim in negligence against Mr von Marburg is dated 15 February 2021.

26. The earliest report of Dr Tomich which supports aspects of the claim in negligence against Mr von Marburg is dated 18 October 2022. Dr Tomich’s longer report is dated 15 December 2022.

27. Mr von Marburg’s solicitors, Meridian Lawyers, obtained reports from Dr da Cruz, Otolaryngologist and Head and Neck Surgeon, dated 16 October 2024 and 15 February 2025. Meridian Lawyers also obtained reports from Professor Gibson, emeritus professor of Otolaryngology at the University of Sydney, dated 16 August 2024 and 3 April 2025.

28. Having regard to all of the medical reports, it is apparent that there is a range of views among the experts as to the causation of many of Mr Martin’s symptoms since 2003.

29. In his affidavit of 29 May 2025, Mr Baram, Mr von Marburg’s solicitor, said that he had been informed by Mr von Marburg that Mr von Marburg has no recollection of either his consultation with Mr Martin on 16 April 2003 and no recollection of performing surgery on Mr Martin on 13 May 2003.

Submissions and consideration

30. The plaintiff bears the onus of satisfying the Court that time should be extended under s 62A of the Act (see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544).

31. The Court has discretionary power under s 62A of the Act to extend the 12 year long-stop limitation period but may not extend the period beyond the period of three years after the date on which Mr Martin’s claim against Mr von Marburg was discoverable (see [10] - [14] above). The Act provides, in s 50C, that an action to which Division 6 of the Act applies is not maintainable if brought after the expiration of the 3 year post discoverability limitation period, which is the period of 3 years “running from and including the date on which the cause of action is discoverable by the plaintiff”.

32. The Act provides, in s 62B, that the Court is to have regard to all of the circumstances of the case, including the five issues set out in s 62B (see [9] above).

33. In Vonhoff v Hillier [2024] NSWSC 1285 (‘Vonhoff’), Cavanagh J said:

88. As is plain from ss 62A and B, the Court has power to extend the long-stop limitation period in certain circumstances. The exercise of the power is discretionary. That is, the Court may order an extension if it decides that it is just and reasonable to do so. The Court is not compelled to order an extension on satisfaction of certain conditions. Indeed, the only criteria for the exercise of the discretion is that it is just and reasonable to do so. Further, although various factors are listed in s 62B, whether any of those factors are relevant will depend upon the particular circumstances of the case.

89. Having said that, and although the discretion is broad and general, the Court must have regard to at least those factors set out in s 62B(1) in considering whether to exercise the discretion in favour of the applicant.

90. There is no weighting system mandated by s 62B. The Court must first assess whether any or each of the factors are relevant in the particular circumstances of the case and assess how those factors might impact upon whether the extension is just and reasonable.

91.   Further, the test is not one of exceptional circumstances. There is nothing in the legislation which suggests that an extension of the long-stop limitation period should only be granted rarely or in exceptional circumstances.

92.   Yet, the Court must have regard to the fact that a limitation period exists for a reason. Limitation periods are necessary to ensure the proper and fair administration of justice which is generally not served through extensive delay in the pursuit of proceedings. The quality of the evidence is often diminished through extensive delay. Documents may no longer be available and witnesses’ recollection of events may fade over time. Presumptive prejudice is often recognised even though a defendant may not be able to point to specific evidence that is not available after lengthy delay.

93.   In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (“Brisbane South”), McHugh J observed at 551:

32   “The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.” (Citations omitted)

34. The Act relevantly sets out in s 50D (see [10] above) that a cause of action is discoverable on the first date that a person knows or ought to know each of these facts:

• the fact that an injury has occurred,

• the fact that the injury was caused by the fault of the defendant,

• the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

35. The Act provides, in s 50D, that “a person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain that fact”.

36. I will first consider the question of whether the date of discoverability was more than three years prior to the filing of the Statement of Claim on 21 December 2023.

The date the cause of action was discoverable

37. It was argued for the plaintiff that the date upon which his cause of action became discoverable was either 15 December 2022, which was the date on which Dr Tomich provided his report, or, alternatively, on 15 February 2021, which was the date upon which Dr Iseli produced her report.

38. It was submitted for the plaintiff, in written submissions:

It was not until the Plaintiff obtained advice that his injuries were sufficiently serious to justify the bringing of his cause of action until he received either the Iseli Report or the Tomich Report pursuant to s50D. Knowledge of causation could only be attained through expert medical and legal opinion.

39. It was submitted for the plaintiff, in oral submissions, that the date of discoverability was the date upon which the plaintiff’s second firm of solicitors advised him that he had a claim and filed the Statement of Claim. Alternatively, it was submitted, the date of discoverability was the date of either Dr Iseli’s or Dr Tomich’s report.

40. It was argued for the defendant that Mr Martin’s case was discoverable well before the receipt of the reports of Dr Iseli on 15 February 2021 and Dr Tomich on 15 December 2022.

41. The defendant argued that the date on which the plaintiff’s cause of action was discoverable was on 22 November 2018, which was the date of Mr Martin’s first surgery by Dr Iseli. The defendant argued that Dr Iseli told him, after the surgery, that he had a hole in his inner ear which had been caused by the surgery performed by Mr von Marburg in 2003. The defendant also relied upon Ms Martin’s evidence of what Dr Iseli said to her in their telephone call during Mr Martin’s surgery (see [19], above). It was submitted that Mr Martin knew, at or shortly after 22 November 2018, that his ear had been damaged by Mr von Marburg during the 2003 operation.

42. It was submitted that from that time, Mr Martin knew, or ought to have known, that the injury was sufficiently serious to justify the bringing of an action against Mr von Marburg, having regard to s 50D(1)(c) of the Act.

43. Both parties referred to the decision of the Court of Appeal in State of New South Wales v Gillett [2012] NSWCA 83. Beazley JA, with whom McColl, Campbell, Young and Whealy JJA agreed said, at [66] - [70], referring to the decision of Basten JA in Baker-Morrison v State of New South Wales [2009] NSWCA 35:

66.   The principal judgment was given by Basten JA. His Honour's reasoning was as follows:

"25 A cause of action is 'discoverable' for the purposes of s 50C if the relevant person has either actual knowledge or what is sometimes described as 'constructive' knowledge, being what he or she 'ought to know' of certain facts: s 50D(1) ... Both limbs require giving content to:

(i) the concept of knowledge, and

(ii) each of the identified 'facts'.

26 These aspects are interrelated, in the sense that if the facts are properly within the understanding and evaluation of a non-professional, the nature of the person's knowledge will be different from that which incorporates information or opinion supplied by a professional, on the basis of the exercise of professional expertise. It is therefore convenient to consider first the content of the prescribed facts. In the present case, no issue arose with respect to par (a). The plaintiff's injury involved a physical wound which was readily apparent to her mother. Although that disposes of par (a) for the purposes of the present case, it should be noted that, in the case of a psychological injury, additional questions will arise. For example, does 'injury' refer to compensable injury? If so, must the person have sufficient medical and legal knowledge required to distinguish a 'recognised psychiatric illness' from emotional distress as required by the Civil Liability Act, s 33?

27 Some support for a construction which does not import any element of legal knowledge may be found in the repeated use of the word 'fact' to describe that which the person knows or ought to know. However, the meaning of that term must be ascertained by reference to the whole of the provision and the possibility that (at least in some circumstances) the relevant fact identified in par (a) (namely, injury or death) is of a different quality to those identified in pars (b) and (c). Furthermore, at least in pars (b) and (c), the singular 'fact' is used to describe a composite of inferences or the result of an evaluation. This is a drafting technique which used to be deplored (see Smith v Central Asbestos Co Ltd [1973] AC 518 at 531-532 (Lord Reid)), but now passes with little protest. However, it deprives reliance on use of the word 'fact' of much significance in this statutory context."

67.   Having thus observed that the relevant fact for the purposes of paras (b) and (c) may, in some cases, be a different quality to the relevant fact for the purposes of para (a), his Honour stated in respect of s 50D(1)(b):

"28. In par (b), the word 'fault' is no doubt capable of having a broad generic meaning, not necessarily confined to that which engages legal liability. The context, on the other hand, gives it a different connotation. That which is identified as 'discoverable' for the purposes of s 50C is 'the cause of action'. The 'fact' contemplated by par (b) is a relationship between two things, namely the injury or death on the one hand and the fault of the defendant on the other. The relevant connection is one of causation."

68.   Basten JA, at [39] 464, rejected the proposition that it was necessary for a person to be able to articulate a cause of action for the purposes of para (b). Rather, "it [was] the key factors necessary to establish legal liability [that had to] be known". His Honour, at [40] 464, rejected the State's argument that it had demonstrated:

"... that the plaintiff's mother knew, at the relevant time, of any steps that could and should reasonably have been taken by the occupier of the premises to render the sliding door safe."

69.   His Honour considered that, "[u]ntil the plaintiff's mother was aware, or ought to have been aware, of the availability and reasonable practicability of installation" of a protective guard covering the area of operation of the sliding glass door, "she could not be aware that her daughter's injury was caused by a failure on the part of the State to take reasonable care for her safety". In his Honour's view, those were the terms in which the relevant test under s 50D(1)(b) should be formulated.

70.   It is apparent from [41] that Basten JA considered that a legal evaluative judgment appeared to be required by s 50D(1)(b) and this was even more explicit in s 50(1)(c). His Honour considered this provision required a plaintiff to know (or ought to know) that "the injury suffered was sufficiently serious to justify the bringing of an action": s 50D(1)(c). In other words, a plaintiff had to know that the defendant's conduct was actionable. This involved the exercise of both legal and medical expertise, given the statutory regimes which placed limitations on the damages recoverable in an action. His Honour considered that a proper view could not be formed about the justification for bringing an action, absent appropriate legal and medical advice in respect of such matters.

44. The plaintiff also referred to the judgment of Campbell JA in Gillett at [131]:

131.   In Baker-Morrison Basten JA regarded satisfaction of s 50D(1)(c) as dependent upon "the exercise of both legal and medical expertise" ([41]) and that "the person have available to him or her relevant legal and medical information to allow an informed professional judgment to be made" ([44]). For a person to be in a situation where he or she knows or ought to know that an injury was sufficiently serious to justify the bringing of an action on the cause of action, they would have to know (or be in a position where they ought to know) that they have sufficient prospects of recovering enough damages for it to be worthwhile litigating. That would require, at the least, knowledge (whether derived from the plaintiff's own knowledge, from friends or acquaintances, or from professional advice) that the injury in question is one for which the law would hold the defendant liable in damages, and that the damages that could be recovered are large enough to be worth the time and trouble of suing. Thus, knowledge of actionability is necessary before s 50D(1)(c) is satisfied. And, because it is involved in there being "fault", actionability is likewise one of the "key factors necessary to establish liability" that must be known before s 50D(1)(b) is satisfied.

45. It was argued on behalf of Mr von Marburg that, although for Mr Martin to know, whether actually or constructively, that he had an injury “sufficiently serious to justify the bringing of an action” (s 50D(1)(c)), Mr Martin needs both legal and medical advice, there is no reason to think that such advice must have come in the form of a report from an independent expert. It was argued that:

The advice provided by Dr Iseli on 22 November 2018 was more than sufficient to meet the requirement that the plaintiff had received medical advice.

It was pointed out that Dr Iseli recommended, on 22 November 2018, that Mr Martin seek legal advice.

46. It was argued for the defendant, in written submissions:

55.   At this point, reasonable steps required the plaintiff to instruct solicitors. He did not do this until July 2019. If he had taken this step in November 2018, legal advice would have been given to the same effect given in July 2019 – that the plaintiff had a claim which he should pursue.

56. Accordingly, with reasonable diligence, the cause of action was discoverable from 22 November 2018. As the SOC was filed more than three years after this time, the Court may not make an order extending the 12 year long-stop limitation period under s 62A(2) of the Act.

57.   However, even if the Court is against the defendant on this point, it remains the case that the plaintiff:

a.   at all times knew Dr Iseli’s professional medical advice regarding his injury, both as expressed in the 22 November 2018 consultation, and as reiterated by Dr Iseli in June 2019;

b.   received legal advice from his former solicitors in January 2020 to proceed with his claim in October or November 2020, although there was some risk in waiting until this time because of the expiry of the limitation period;

c.   received legal advice from his former solicitors in January 2021 that he had an actionable claim.

47. I accept that Mr Martin knew, from 22 November 2018, that Dr Iseli had observed damage to his left ear which caused her to infer that Mr von Marburg had, in 2003, drilled a hole in a bone in his inner ear which was not clinically warranted or in accordance with appropriate clinical standards. The requirements of s 50D(1)(a) and (b) of the Act were fulfilled within a day or so after 22 November 2018.

48. I reject the submission that the legal advice given to Mr Martin in the letter of July 2019 was that he had a claim which he should pursue. An extract from the letter from Harris Lieberman of 17 July 2019 to Mr Martin is set out above at [23]. In that letter, Harris Lieberman does not advise Mr Martin that he has an actionable claim. Harris Lieberman undertakes to investigate the issue, obtain the opinion of a barrister once material is gathered and then advise Mr Martin “to draw the necessary Statement of Claim if we are of the view that the claim is likely to succeed in Court”.

47. I reject the submission that Mr Martin was given legal advice by Harris Lieberman in January 2020 “to proceed with his claim”. The letter of 31 January 2020 says, among other things:

I was in the process of preparing a chronology in your matter with the view to determining whether you have a cause of action against Mr von Marburg for medical negligence. During the investigation, I received notice from the Bankruptcy Trustee who is representing Mr von Marburg in relation to claims made upon him. …

I note my advice that if you proceed with a medical negligence claim against Mr von Marburg at this point in time, whilst you may be successful in proving liability (which has not yet been confirmed however) you will likely end up with a hollow verdict, and you will be unable to recover any damages even if the Court finds that Mr von Marburg has been negligent in causing your injury and damage….

It is clear from these passages, and from the letter as a whole, that, on the date of the letter, Harris Lieberman was only part way through the investigation of whether Mr Martin has a cause of action against Mr von Marburg.

50. In its letter to Mr Martin of 13 January 2021, Harris Lieberman discusses the changing circumstances with respect to Mr von Marburg’s run off claims insurance cover and recommends that Mr Martin proceed with the obtaining of medical reports from Dr Iseli and an independent ENT surgeon. Whilst the letter says that “once these reports are available” it was recommended that Mr von Marburg be notified of a claim and proceedings be commenced in Court, a further conference between Mr Allen and Mr Martin was contemplated to discuss the matter. The letter discloses that Mr Allen has written to the Minister of Health seeking changes to the ROCS scheme for the benefit of a number of clients. The letter further discloses that, in the letter to the Minister, Mr Allen has said, among other things, “You [ie Mr Martin] and others have a perfectly legitimate claim against Roland von Marburg”. I do not consider that telling Mr Martin about this letter constitutes advice to him that he has a cause of action against Mr von Marburg. In the letter of 13 January 2021, Mr Martin is not directly advised that he has a cause of action against Mr von Marburg. In any event, this letter falls within 3 years of the filing of the Statement of Claim on 21 December 2023.

51. On the basis of the material before me, I am unable to find that Harris Lieberman ever gave advice to Mr Martin that he had a cause of action against Mr von Marburg. Whilst future proceedings were contemplated in the communications between Mr Allen and Mr Martin, as late as 3 December 2021, Mr Allen advised Mr Martin by letter:

We are now confident that appropriate insurance cover is in place to meet any judgment debt awarded to the victims of Dr von Marburg’s negligence. Accordingly, we recommend that you proceed with investigating a claim the alleged negligence of Dr von Marburg. [sic]

52. In his affidavit, Mr Allen says that Mr Martin’s file was transferred to Melinda Griffiths Lawyers on 9 March 2023. Melinda Griffiths Lawyers are Mr Martin’s present lawyers. I find, on the basis of the material before me, that Mr Martin did not know that the damage to his ear constituted an injury which was “sufficiently serious to justify the bringing of an action on the cause of action” within the meaning of s 50D(1)(c) of the Act until after 9 March 2023.

53. An indication has been given on behalf of the plaintiff that Melinda Griffiths Lawyers sought senior counsel’s advice in relation to Mr Martin’s matter, and that advice was provided on 16 August 2023. Not surprisingly, that advice is not in evidence.

54. The date upon which the cause of action was discoverable is the date upon which Melinda Griffiths Lawyers, or counsel briefed by them, advised Mr Martin to the effect that there was sufficient evidence available to prove, on the balance of probabilities:

• that Mr von Marburg was negligent in relation to Mr Martin in the consultation of 16 April 2003 or in the operation on Mr Martin’s left ear on 13 May 2003, and

• that such negligence caused Mr Martin injury or loss, and

• that the injury or loss was sufficiently serious to justify the bringing of proceedings.

55. It is probable that the date upon which the cause of action was discoverable is 16 August 2023.

56. The extension of the 12 year long-stop limitation period to 21 December 2023 would not constitute an extension beyond the period of 3 years after the date on which the cause of action was discoverable.

57. As I set out, above, at [9], the discretionary power in s 62A of the Act is to be exercised, in accordance with s 62B of the Act, having regard to all of the circumstances of the case including the six matters set out at s 62B of the Act.

The length of and reasons for the delay

58. It was submitted on behalf of the plaintiff that he was not aware of the damage which had been caused to his left ear until the surgery by Dr Iseli in November 2018. When Mr Martin learned of the damage, he was also told that Dr Iseli had repaired the hole in his ear.

59. Mr Martin suffered further symptoms in early 2019 which indicated that the repair may have failed, and led to him undergoing further surgery on 27 June 2019. Dr Iseli told him, after that surgery, that each time he had surgery it was necessary to cut more nerves in his ear which could result in him suffering more pain (see [15], above). This gave Mr Martin more information about the severity of the damage to his ear, and he consulted Harris Liberman on 17 July 2019.

60. It was submitted, relying on the decision in Gillett, that, before he could issue proceedings, Mr Martin needed to ensure that the damage to his ear was more than an expected complication or a mistake. He needed advice that Mr von Marburg had been negligent, and that the negligent conduct had injured Mr Martin sufficiently seriously to justify the bringing of an action on the cause of action.

61. Difficulties were experienced in the obtaining of Mr Martin’s medical records. The photographs taken by Dr Iseli during the 2018 surgery were not obtained until October 2022, despite requests beginning on 3 March 2022 (see Ms Martin’s affidavit at paragraph 29). Dr Tomich required these photographs in order to form his opinion and write his report.

62. It was submitted that the retirement of Mr von Marburg in 2017, prior to him reaching the age of 65, and the advice of the Department of Health to Avant following the changes to the Medical Indemnity Act 2002 (Cth) in July 2020, led to Mr Martin being advised that Mr von Marburg was not covered by the ROC scheme and that there was, therefore, no utility in expending further resources in investigating the possible claim because Mr von Marburg was bankrupt.

63. It was the evidence of Mr Martin that Ms Martin told him that, in 2022, Harris Liebermann advised her by telephone that Mr Martin’s claim was to be filed “the next week” and, subsequently that year, she was told that a claim had been filed. Then, at a conference on 9 March 2023, Mr Martin was told that the claim had not, in fact, been filed.

64. Ms Martin said, in her affidavit, that in one of her telephone conversations with Mr Allen in October or November 2021, Mr Allen told her that she did not need to worry about time limits because “due to Covid there is a grace period and proceedings can wait to be filed” (paragraph 28).

65. It was submitted that, by instructing Harris Lieberman on 17 July 2019, shortly after he became aware of the seriousness of the damage to his ear, Mr Martin took all reasonable steps to ascertain all relevant facts.

66. The defendant submitted that the delay in bringing the proceedings, which is more than 20 years after the consultation and the surgery, is significant.

67. The defendant submitted that the plaintiff’s explanation for the delay was inadequate. Mr Martin was told in November 2018 by Dr Iseli that damage to his ear had been caused in the course of the operation in 2003 and, it was submitted, the delays in obtaining expert evidence and advice from counsel were not adequately explained.

68. Clearly, more than 20 years is a very long period between the conduct alleged to have been negligent and the filing and service of proceedings.

69. For more than 15 of the 20 years delay, however, Mr Martin was unaware of the damage which had been done to his ear in the course of the operation in 2003. On the evidence before me, in the context of his medical condition, the cause of his symptoms in that period was not obvious and he was active in seeking medical advice and treatment in relation to those symptoms. He could not begin the process of ascertaining whether he had a cause of action against Mr von Marburg until after his surgery with Dr Iseli in November 2018.

70. It was reasonable of Mr Martin to wait and see whether Dr Iseli’s repair of his ear was successful. When it became clear to him, immediately after the further operation on 27 June 2019, that it had not been, he consulted Harris Liberman promptly, on 17 July 2019.

71. The delays thereafter were not the fault of Mr Martin. It was reasonable for him to rely on his solicitors not to put him in a position where he would lose his ability to bring proceedings at such time as he was advised that he had a cause of action against Mr von Marburg, and I’m satisfied that he placed that reliance on Harris Lieberman. In the context of his medical condition at all relevant times, particularly his increasing deafness, I do not think that it would be reasonable to expect him to question the advice he was getting from his solicitors any more than he did.

Prejudice to the defendant

72. It was submitted on behalf of the defendant that he would suffer actual prejudice should the limitation period be extended.

73. The claim includes allegations that Mr von Marburg failed to advise Mr Martin at the consultation on 16 April 2003 about all of the treatments available to him and about the role of conservative operative treatment. The allegations are denied. Mr von Marburg does not now recall the consultation. He does not have his original medical file which, it was submitted, would have contained handwritten notes of the consultation. The consultation and the surgery, for Mr von Marburg, occurred in the context of many similar consultations and surgeries for other patients, so that his lack of recollection is not at all surprising.

74. The defendant submitted that Mr Martin’s recollection of the consultation was unlikely to be strong or reliable either.

75. As to the surgery, Mr von Marburg admits that he operated on Mr Martin’s left ear on 13 May 2003, but has no recollection of the surgery now.

76. It was submitted that, in proceedings where findings of fact will have to be made about the events that occurred in the course of the consultation and the surgery, the time which has elapsed since those events, and Mr von Marburg’s lack of recollection cause him significant prejudice in defending the allegations against him.

77. It was submitted, in particular, that the absence of Mr von Marburg’s file for the defendant is particularly prejudicial because Mr von Marburg is not able to say what his notes might have revealed. The defendant referred to Vonhoff, in which Cavanagh J said at [110] – [115]:

110.   Much thus depends on the significance of the absence of the defendant’s handwritten notes and the hospital records. Ordinarily the absence of such notes and records may be critical because it would be difficult to accept that any specialist could remember what happened at a consultation such a long while ago.

111.   However, the circumstances of this case are not the norm. Both parties have access to letters from the defendant sent to various GPs and the workers compensation insurer during the period 2006 to 2010. Each letter provides details of the symptoms described by the plaintiff at the particular consultation, treatment, recommendations, diagnosis and prognosis. The letters are not short on detail.

112.   Further, the reports of each operation are available, as are reports from the physiotherapist.

113.   There may be presumptive prejudice as the defendant may be unable to say what his notes might have revealed but it is difficult to accept that they would reveal much more than the detailed correspondence from the defendant throughout the period of the plaintiff’s treatment.

114.   Absent evidence from the defendant that his handwritten notes are likely to be much more extensive than the letters he sent immediately following the consultations, I would not infer that there is likely to be important evidence contained in the notes not referred to elsewhere.

115.   There is a form of presumptive prejudice but leaving aside what is not known about those documents which are no longer available, there appears to be no other prejudice to the defendant. He is in as good a position to defend the matter as he would have been many years ago (not that doing a comparison is the test).

78. The defendant noted that the plaintiff relied upon other relevant documentary evidence of the consultation and the surgery. Mr Martin’s Medicare records record that he consulted with Mr von Marburg three times in 2000 and once in March 2003. No other record of the 2000 consultations has been located. The defendant submitted that it was clear from a letter, written in March 2003 by the defendant, that the consultation was not Mr von Marburg’s first consultation with Mr Martin and that Mr Martin’s “left sided endolymphatic hydrops” was “previously managed well conservatively”. A letter of 12 August 2015 by Mr von Marburg also refers to “earlier conservative treatment including medications, lifestyle changes, vestibular physiotherapy and left inner ear surgery”. It was submitted that records of the 2000 consultations may have “shed light” on the conservative treatments discussed and taken up by Mr Martin prior to the consultation and surgery.

79. The defendant submitted that the precise nature of the surgery on 13 May 2003 is in issue. The radiology images taken around the time of the surgery would have been instructive. However, the Brain MRI, MRI Internal Audio Canal and Brain Magnetic resonance Angiography taken less than one year after the surgery are said to be unavailable on the basis that they were not produced in response to a subpoena issued to Services Australia. It was submitted that these records were sought by Dr Tomich prior to the provision of his report and would clearly have been valuable in ascertaining precisely what was done in the surgery of 13 May 2003.

80. The defendant submitted that delay alone occasions prejudice (see [33] above).

81. The plaintiff submitted that there is no real or substantive prejudice to Mr von Marburg as “all of the relevant medical evidence save for the Defendant’s personal records are available and accessible to all parties”.

82. I accept that there may be some prejudice to Mr von Marburg on account of his inability to have recourse to his contemporaneous notes of 2000 and 2003 and to the results of the tests referred to in [79] above. However, given that there are letters regarding Mr Martin, including the letters mentioned above, hospital records, including those written by Mr von Marburg, the account of Dr Iseli about the condition of Mr Martin’s left ear when she opened it during the surgery in November 2018, and Dr Iseli’s photographs of Mr Martins inner ear, I do not believe that the extent of the prejudice should, by itself, dictate that the time for bringing proceedings should not be extended. It is a factor to be weighed with other factors.

83. Mr Martin did not know about the hole in the bone in his left ear until around 22 November 2018. For more than fifteen years Mr Martin was unaware that he may have a basis for legal action against Mr von Marburg and therefore had no basis upon which to have the matter investigated. I am unable to make any findings, on the basis of the material before me, as to when Mr von Marburg lost or destroyed his notes concerning Mr Martin, or when, or if, the test results referred to in [79] above were lost or destroyed. It may have been before 12 May 2015, which is when the 12 year long-stop limitation period expired.

The nature and extent of the plaintiff’s injury or loss

84. It is not in dispute that Mr Martin has suffered significant damage to his inner left ear incurred in the course of a surgical procedure. Mr Martin’s allegations regarding Mr von Marburg’s part in bringing about that damage are the basis for the proceedings the subject of this application for an extension of time (see [85], below).

Any conduct of the defendant that induced the plaintiff to delay bringing the action

85. The plaintiff submitted that the following conduct of Mr von Marburg induced the plaintiff to delay bringing the action:

• Mr von Marburg did not inform Mr Martin at any time that he had drilled a hole in a bone in Mr Martin’s inner left ear during the operation on 13 May 2003.

• Mr von Marburg did not obtain ROCs cover or maintain professional negligence insurance.

• Mr von Marburg presented a debtor’s petition seeking to enter bankruptcy in 2019. At that time, he had been found guilty of professional misconduct in Health Care Complaints Commission v Von Marburg [2019] NSWCATOD 85. The misconduct related to the treatment of six patients. It was submitted that Mr von Marburg may have sought to enter bankruptcy in anticipation of claims being brought against him in medical negligence.

• Mr von Marburg’s conduct in entering bankruptcy required enquiries to be made of Avant on Mr Martin’s behalf to determine whether there was insurance which would respond to Mr Martin’s claim, were he to bring one. The insurance situation was not resolved for Mr Martin until December 2021.

86. The defendant submitted that the conduct of Mr von Marburg when operating on Mr Martin on 13 May 2003 is in contest in these proceedings and cannot be relied upon by the plaintiff in his application for an extension of time. Whilst I accept that the conduct of Mr von Marburg is in contest, I reject the submission that the plaintiff’s allegations regarding that conduct cannot be relied upon in the consideration of the application for an extension of time. Almost invariably proceedings will not have been the subject of any judicial determination at the point in time at which an application for an extension of time is being considered. When the Act speaks of “the action” and “the cause of action” it must be taken to be referring to the facts alleged by the plaintiff which, the plaintiff alleges, comprise the cause or causes of action.

87. The defendant submitted that there is no evidence that Mr von Marburg failed to obtain ROCs cover or professional negligence insurance with the objective of delaying the plaintiff’s action. The defendant submitted that the action could have been brought and placed in “the not-ready list” while the defendant’s ROCs cover came into force. I accept that there is no evidence as to Mr von Marburg’s motivation concerning his failure to obtain insurance cover and I make no finding with respect to his motivation. However, regardless of his motivation, his conduct in failing to obtain insurance cover did, in fact, have the effect of delaying the bringing of the claim. I do not think that it is reasonable to expect a plaintiff to bring an action and then seek to keep deferring its progress to a future time in the hope that insurance cover will materialise. Whilst there is an “Inactive List” in the District Court, it would be arguable that the plaintiff’s claim would not be eligible to be in the list. Neither Mr Martin nor his solicitors could predict what would happen with respect to ROCs cover for Mr von Marburg’s conduct in medical practice. In any event, the proceedings would have had to have been commenced prior to 13 May 2015 in order to be within time, and Mr Martin was unaware of the hole in the bone in his ear until 2018. The lack of insurance cover created a confusing situation which Mr Martin required legal assistance to navigate. I accept that this is a factor which weighs in favour of an extension of time. It is not a factor of great weight.

86. The defendant argued that it could not be said that Mr von Marburg sought to enter bankruptcy to avoid paying damages or costs in litigation. The defendant pointed out that the Official Receiver could reject a debtor’s petition if the debtor is able but unwilling to pay their debts (Bankruptcy Act 1966 (Cth) s 55(3AA)). There is no evidence from which it could be inferred that Mr von Marburg sought to enter bankruptcy to avoid paying damages or costs. I accept that this is so. I do not take into account the fact that Mr von Marburg sought to enter bankruptcy in considering the application for an extension of time.

The steps taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received.

89. The steps taken by the plaintiff to obtain medical and legal advice are set out above.

90. In relation to the consideration of whether an extension of time should be granted, the plaintiff argued, in summary, that there were delays both in obtaining medical reports and in obtaining legal advice which were beyond the control of the plaintiff. The plaintiff was entitled to place the matter in the hands of solicitors and trust that everything that could reasonably be done was being done. The plaintiff and his wife remained in contact with the solicitor and enquiries were made about progress periodically.

91. It was not until Mr Martin’s file was transferred to his current solicitors in 2023 that the advice of Senior Counsel was sought. That advice was received on 16 August 2023.

92. The defendant argued that each of the delays in obtaining medical evidence and legal advice should be counted as factors weighing against the grant of an extension of time.

93. In weighing up the delays, I bear in mind that Mr Martin suffers from a debilitating medical condition with symptoms that affect aspects of his capacity. In context, I do not think that Mr Martin’s conduct in pursuing his claim can weigh heavily against the granting of an extension of time. Once he became aware that there was a hole in a bone in his inner ear, and that Dr Iseli was of the view that Mr von Marburg drilled that hole, and was further of the view that there was no benefit to Mr Martin in having that hole drilled, but, rather, that it constituted serious damage to his ear, Mr Martin acted promptly to engage solicitors to act for him with a view to the possibility of making a claim against Mr von Marburg. As I have said, none of the delays in the matter can fairly be said to be Mr Martin’s fault.

Discussion and Conclusion

94. In considering whether to grant an extension of the 12 year long-stop limitation period from 12 May 2015 to 21 December 2023, I bear in mind all of the circumstances of the case which are disclosed in the evidence before me.

95. I also bear in mind all that was said in Vonhoff, including the underlying question, which is whether it is just and reasonable to grant an extension of time, and the purpose of the imposition of a time limit with respect to these proceedings (see [33] above). I exercise the discretion in that context.

96. I have set out above my findings in relation to all of the factors to be taken into account under s 62B of the Act and the parties’ submissions in relation to those factors.

97. Weighing up all of those factors, in the context of the circumstances of the case, I find that it is just and reasonable that the application to extend the limitation period be granted and I determine that the limitation period will be extended to 21 December 2023 so that these proceedings are within time.

Order

98. The following order will issue:

1. Pursuant to s 62A of the Limitations Act 1969, the time within which proceedings may be brought by the plaintiff against the defendant in relation to the causes of action the subject of the Statement of Claim filed in this matter on 21 December 2023 is extended to 21 December 2023, and the plaintiff has leave nunc pro tunc to commence proceedings against the defendant by the Statement of Claim filed on 21 December 2023.

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Decision last updated: 18 July 2025