Schering-Plough Pty Ltd v Page

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.