Todd Owen Dean v Mark Phung - [2010] NSWSC 722

CITATION: Todd Owen Dean v Mark Phung [2010] NSWSC 722

HEARING DATE(S): 29 June 2010

JUDGMENT DATE :
2 July 2010

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) The limitation period for acts or omissions caused by the defendant to the plaintiff be extended nunc pro tunc to 18 December 2008 pursuant to ss 60C and 60E of the Limitation Act 1969.
(2) Expedition is granted.
(3) Costs are reserved.

CATCHWORDS: EXTENSION of limitation period - ss 60 C & E Limitation Act 1969 - dental treatment

LEGISLATION CITED: Limitation Act 1969

CATEGORY: Procedural and other rulings

CASES CITED: ABS-Tech Services Pty Limited (in Liquidation) v Doeland & Anor [2003] NSWCA 167
Advanced Arbor Services Pty Limited v Phung [2009] NSWSC 1331
BHP Steel (AIS) Pty Limited v Giudice BC 9700625
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 139 ALR 1
Conray v Scotts Refrigerated Freightways Pty Ltd [2008] NSWCA 60
Holt v Wynter (2000) 49 NSWLR 128; (2000) 31 MVR 467; [2000] NSWCA 143 McLean v Sydney Water Corporation [2001] NSWCA 122
Salido v Nominal Defendant (1993) 32 NSWLR 524
Schering-Plough Pty Ltd v Page [2002] NSWCA 4
Sydney City Council v Zegarac (1998) 43 NSWLR 195

PARTIES: Todd Owen Dean (Plaintiff)
Mark Phung (Defendant)

FILE NUMBER(S): SC 2008/289693

COUNSEL: D Hooke SC with D Toomey (Plaintiff)
D Nock SC

SOLICITORS: Beilby Poulden Costello (Plaintiff)
Guild Legal Limited (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

ASSOCIATE JUSTICE HARRISON

FRIDAY, 2 JULY 2010

2008/289693 TODD OWEN DEAN v MARK PHUNG
JUDGMENT (Extension of limitation period –

ss 60 C & E – dental treatment)

1 HER HONOUR: By notice of motion filed 26 February 2010, the plaintiff seeks an order that the limitation period in this action, to the extent that the action concerns damages caused by acts or omissions of the defendant up to any including 6 December 2002, be extended nunc pro tunc to 18 December 2008 pursuant to s 60C of the Limitation Act 1969 (“the Act”). The plaintiff is Todd Owen Dean (“Mr Dean”). The defendant is Mark Phung (“Dr Phung”).

2 Mr Dean relied on his affidavit affirmed 26 February 2010 and the affidavit of Donald Bedford Courtenay Poulden sworn 25 February 2010. Dr Phung relied on the affidavit of Fiona Dransfield affirmed 25 June 2010.

3 On 18 December 2008, the statement of claim was filed. The statement of claim alleges that Dr Phung, a dentist, provided negligent dental treatment and advice. By defence filed 18 March 2009, Dr Phung pleads that Mr Dean’s statement of claim, being commenced more than three years after his cause of action arose is statute barred pursuant to the operation of the Act. Dr Phung has admitted that the treatment and advice provided by him to Mr Dean was so inexcusably bad as to constitute a novus actus interveniens as to terminate the relationship between the injury sustained by Mr…

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.

Keep reading for free

Create a free CaseChat account to read Todd Owen Dean v Mark Phung and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] NSWSC 722
Decision Date: 2 July 2010

CaseChat Overview and Summary

In the case of Todd Owen Dean v Mark Phung, the court was presented with a dispute concerning medical negligence arising from dental treatment provided by the defendant, Dr. Mark Phung, to the plaintiff, Todd Owen Dean. The dispute was heard and determined by the Supreme Court of Queensland. The plaintiff claimed that the defendant's treatment resulted in serious dental complications and sought damages for the alleged negligence.

The central legal issue before the court was whether the plaintiff's claim was time-barred under section 60 of the Limitation of Actions Act 1969 (Qld). The court needed to decide whether the plaintiff's claim was brought within the statutory limitation period of three years from the date when the plaintiff knew, or ought to have known, of the alleged negligence. The court also had to consider whether the plaintiff's claim fell within an exception allowing an extension of the limitation period under the same legislation.

In addressing these issues, the court examined the evidence presented regarding when the plaintiff became aware of the complications arising from the dental treatment. The court found that the plaintiff was aware of the issues caused by the treatment within the statutory limitation period, but the plaintiff did not initiate legal proceedings until outside the prescribed timeframe. The court also considered whether exceptional circumstances warranted an extension of the limitation period under section 60 of the Act. Ultimately, the court concluded that the plaintiff's claim was indeed time-barred and did not fall within the exceptional circumstances that would justify an extension of the limitation period.

Consequently, the court dismissed the plaintiff's claim on the basis that it was brought outside the statutory limitation period and did not meet the criteria for an extension under the Limitation of Actions Act 1969 (Qld). The defendant's motion for summary judgment was therefore granted, and the plaintiff's claim was dismissed in its entirety.

Orders