Pell v Hodges

[2007] NSWCA 234

New South Wales

Court of Appeal

CITATION:	PELL v HODGES [2007] NSWCA 234
HEARING DATE(S):	21/08/2007
JUDGMENT DATE:	5 September 2007
JUDGMENT OF:	Tobias JA at 1; Basten JA at 2; Handley AJA at 7
DECISION:	1. Appeal allowed with costs; 2. Decision of Latham J of 22 June set aside; 3. In lieu thereof order that the Notice of Motion of 14 March 2006 be dismissed with costs, and that orders be made in accordance with prayers 1 and 2 of the Notice of Motion of 6 April 2006; 4. The respondent to have a certificate under the Suitors Fund Act for the costs of the appeal.
CATCHWORDS:	TORTS – MEDICAL NEGLIGENCE – FAILURE TO WARN – EXTENSION OF TIME FOR SERVICE – EXPIRATION OF LIMITATION PERIOD - PROCEDURE – STATEMENT OF CLAIM – EXTENSION OF TIME FOR SERVICE – EXPIRATION OF LIMITATION PERIOD – EXERCISE OF DISCRETION
LEGISLATION CITED:	Suitors Fund Act Uniform Civil Procedure Act
CASES CITED:	Franklin House Ltd v ANI Corporation Ltd (2/11/94 Windeyer J unreported) Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597 Tolcher v Gordon [2005] NSWCA 135, 53 ACSR 442
PARTIES:	Dr Malcolm Pell - Appellant Lynda Maree Hodges - Respondent
FILE NUMBER(S):	CA 40423/06
COUNSEL:	G. Curtin and D. Jenkins - Appellant M. Cranitch SC and B. Bradley - Respondent
SOLICITORS:	Ebsworth & Ebsworth, Sydney - Appellant Commins Hendriks, Wagga Wagga - Respondent
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 20263/04
LOWER COURT JUDICIAL OFFICER:	Latham J
LOWER COURT DATE OF DECISION:	22/06/2007

CA 40423/06

TOBIAS JA
BASTEN JA
HANDLEY AJA

5 September 2007

DR MALCOLM PELL v LYNDA MAREE HODGES

TORTS – MEDICAL NEGLIGENCE – FAILURE TO WARN – EXTENSION OF TIME FOR SERVICE – EXPIRATION OF LIMITATION PERIOD

PROCEDURE – STATEMENT OF CLAIM – EXTENSION OF TIME FOR SERVICE – EXPIRATION OF LIMITATION PERIOD – EXERCISE OF DISCRETION

The respondent issued a statement of claim against the appellant for medical negligence shortly before the limitation period expired but did not serve it before it ceased to be valid after 4 months. She applied for an extension under UCP 1.12 sixteen months later. The primary judge granted the application because the respondent had a legitimate interest in the prosecution of her claim.

1. The discretion to grant an extension of time under UCP 1.12 is unfettered. The defendant did not have a prima facie right to retain the benefit of the expiry of the limitation period, nor did the plaintiff have a prima facie right to an extension because of a legitimate interest in the prosecution of her case. The primary judge erred by not giving reasons why, on balance, the interest of the plaintiff outweighed that of the defendant.

Tolcher v Gordon [2005] NSWCA 135, 53 ACSR 442, applied.

2. The Court of Appeal therefore had to re-exercise the discretion.

3. A relevant factor was the unexplained delays in not filing the statement of claim until shortly before the expiry of the…