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
Category: Procedural rulings Parties: Nicholas Martin (Plaintiff)
Roland von Marburg (Defendant)Representation: Counsel:
Solicitors:
B Dooley SC (Plaintiff)
K Holcombe (Defendant)
Melinda Griffiths Lawyers (Plaintiff)
Meridian Lawyers (Defendant)
File Number(s): 2023/463850 Publication restriction: Nil
JUDGMENT
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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.
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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:
Damage to the left inner and middle ear;
Creation of a fistula;
Ongoing aural fullness
Irreversible vestibular injury
Ongoing vestibular symptoms of:
Vestibular migraine
Severe dizziness
Severe overbalancing
Permanently affected balance
Left sided sensorineural hearing loss
Failure of cochlear implant
Systemic complications of high dose steroid use
Impact on work, social activity and domestic responsibilities
Depression and psychological injury.
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Mr Martin claims damages.
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The proceedings have been commenced more than twenty years after the consultation and the surgery.
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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’).
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On 6 March 2025, Mr Martin filed a Notice of Motion seeking “leave nunc pro tunc to…
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- Case
- [2025] NSWDC 259
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the application for an extension of time was to be granted, considering the circumstances surrounding the discoverability of the cause of action. The plaintiff argued that the cause of action was not discoverable until recently due to the defendant's alleged concealment of relevant information. The defendant opposed the application, contending that the plaintiff had known or should have known of the cause of action well before the limitation period expired. The Court was required to weigh various factors, including the plaintiff's diligence in investigating the claims, the defendant's conduct, and the feasibility of conducting a fair trial within the extended time frame.
The Court held that the application for an extension of time should be granted. It found that the plaintiff had exercised reasonable diligence in uncovering the cause of action and that the defendant's conduct had contributed to the delay in discovering the claims. The Court emphasised the importance of balancing the principles of finality and fairness in the administration of justice. The extension was deemed necessary to ensure that the plaintiff had a fair opportunity to litigate the claims without undue prejudice to the defendant. The Court exercised its discretion under section 62A of the Limitations Act 1969, extending the limitation period and granting leave for the proceedings to be commenced as per the Statement of Claim filed on 21 December 2023.
Orders
Orders of the court
(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.
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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