Schering-Plough Pty Ltd v Page - [2002] NSWCA 4

CITATION: SCHERING-PLOUGH PTY LIMITED v PAGE [2002] NSWCA 4 revised - 14/02/2002

FILE NUMBER(S): CA 40018/01

HEARING DATE(S): 14 November 2001

JUDGMENT DATE:
8 February 2002

PARTIES :

Schering-Plough Pty Limited - Appellant
Billie-Jean Page - Respondent

JUDGMENT OF: Meagher JA at 1; Sheller JA at 2; Brownie AJA at 45

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : 4465/2000

LOWER COURT
JUDICIAL OFFICER : Garling DCJ

COUNSEL: D Graham - Appellant
K Andrews - Respondent

SOLICITORS: Allens Arthur Robinson - Appellant
Brazel Moore Daly - Respondent

CATCHWORDS: Practice and Procedure - application for extension of limitation period under s60C(2) Limitation Act 1969 - consideration of factors listed in s60E - held that trial Judge erred in granting extension.

LEGISLATION CITED: Limitation Act 1969

CASES CITED:
Sydney City Council v Zegarac (1998) 43 NSWLR 195
Salido v Nominal Defendant (1993) 32 NSWLR 524
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

DECISION: 1. Leave to appeal; 2. Appeal allowed; 3. Set aside the orders made by Judge Garling on 14 December 2000; 4. The opponent's application for an extension of time under s60C of the Limitation Act be dismissed; 5. The opponent to pay the claimant's costs of the hearing before Judge Garling, of the application for leave to appeal and of the appeal.

CA40018/01
DC 4465/00

MEAGHER JA
SHELLER JA
BROWNIE AJA

SCHERING-PLOUGH PTY LIMITED v PAGE

The opponent was granted an extension of time pursuant to s60C(2) of the Limitation Act 1969 to commence proceedings against the claimant. The opponent commenced proceedings on 31 May 1999, seeking damages for injuries alleged to have been caused by the claimant’s failure to warn of the proper use and side effects of a nasal spray called Drixine, produced by the claimant.

The opponent began to use the spray in approximately July 1989. After three months of use, she became moody, nervous, easily irritated and had sleeping problems. By June 1993, she was feeling suicidal and her marriage was deteriorating. In November 1993 she read an article about the adverse effects of oxymetazoline, an ingredient of Drixine and discontinued use of the product. In December 1993, the opponent was advised that she did not have an arguable case. The opponent saw her present solicitors in mid-1995, and they drafted a letter to the claimant detailing the opponent’s symptoms, to which the claimant replied, denying liability. Expert advice was not received until 1998.

The claimant sought leave to appeal against the decision to extend the limitation period. The submissions were that the trial Judge had failed to have regard to all the matters referred to in s60E, and that he had erred in finding that there was no “real prejudice to the defendant.”

Held: (per Sheller JA, Meagher JA and Brownie AJA agreeing):

1. The trial Judge did not give adequate reasons for his conclusion that it was just and reasonable to extend the limitation…

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.

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Details

Case: [2002] NSWCA 4
Decision Date: 8 February 2002

CaseChat Overview and Summary

Schering-Plough Pty Ltd appealed to the New South Wales Court of Appeal against an order of Judge Garling granting the respondent, Mr. Page, an extension of the limitation period under section 60C(2) of the *Limitation Act 1969* (NSW). The dispute concerned Mr. Page's claim for damages for personal injury, which was brought outside the primary limitation period.

The Court of Appeal was required to determine whether Judge Garling had erred in exercising his discretion to grant the extension of time. This involved considering the factors enumerated in section 60E of the *Limitation Act*, which include the nature of the proceedings, the reasons for the delay, and the prejudice to each party. The central question was whether the Judge had given sufficient weight to these factors, particularly the prejudice to the appellant, Schering-Plough.

The Court found that Judge Garling had failed to adequately consider the prejudice that Schering-Plough would suffer if the extension were granted, especially given the significant delay and the potential for faded memories and lost evidence. The Court held that the Judge had placed too much emphasis on the respondent's reasons for the delay and had not properly balanced the competing interests. Consequently, the Court concluded that the Judge had erred in principle in granting the extension.

The Court of Appeal allowed the appeal, set aside Judge Garling's orders, and dismissed Mr. Page's application for an extension of time. Mr. Page was ordered to pay Schering-Plough's costs of the proceedings at first instance, the application for leave to appeal, and the appeal itself.

Orders

Orders of the court

1. Leave to appeal; 2. Appeal allowed; 3. Set aside the orders made by Judge Garling on 14 December 2000; 4. The opponent's application for an extension of time under s60C of the Limitation Act be dismissed; 5. The opponent to pay the claimant's costs of the hearing before Judge Garling, of the application for leave to appeal and of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	SCHERING-PLOUGH PTY LIMITED v PAGE [2002] NSWCA 4 revised - 14/02/2002
FILE NUMBER(S):	CA 40018/01
HEARING DATE(S):	14 November 2001
JUDGMENT DATE:	8 February 2002
PARTIES :	Schering-Plough Pty Limited - Appellant Billie-Jean Page - Respondent
JUDGMENT OF:	Meagher JA at 1; Sheller JA at 2; Brownie AJA at 45

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	4465/2000
LOWER COURT JUDICIAL OFFICER :	Garling DCJ

COUNSEL:	D Graham - Appellant K Andrews - Respondent
SOLICITORS:	Allens Arthur Robinson - Appellant Brazel Moore Daly - Respondent
CATCHWORDS:	Practice and Procedure - application for extension of limitation period under s60C(2) Limitation Act 1969 - consideration of factors listed in s60E - held that trial Judge erred in granting extension.
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Sydney City Council v Zegarac (1998) 43 NSWLR 195 Salido v Nominal Defendant (1993) 32 NSWLR 524 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
DECISION:	1. Leave to appeal; 2. Appeal allowed; 3. Set aside the orders made by Judge Garling on 14 December 2000; 4. The opponent's application for an extension of time under s60C of the Limitation Act be dismissed; 5. The opponent to pay the claimant's costs of the hearing before Judge Garling, of the application for leave to appeal and of the appeal.