Tran v Au-Yong; Tran v Au - [2008] NSWSC 396

CITATION: Tran v Au-Yong; Tran v Au [2008] NSWSC 396

HEARING DATE(S): 21 April 2008

JUDGMENT DATE :
2 May 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) In proceedings 20297/2007 the notice of motion filed 4 September 2007 is dismissed.
(2) In proceedings 20361/2007 the notice of motion filed 22 April 2008 is dismissed.
(3) The plaintiff is to pay the defendants’ costs in both proceedings as agreed or assessed.

CATCHWORDS: EXTENSIONS of limitation period - ss 60C & 60E

LEGISLATION CITED: Limitation Act 1969
Victims Compensation Act 1996
Workers Compensation Act 1987

CATEGORY: Procedural and other rulings

CASES CITED: BHP Steel (AIS) Pty Limited v Giudice (& Ors) (Unreported, NSWCA, 7 March 1997)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1
Conway v Scotts Refrigerated Freightways Pty Ltd [2008] NSWCA 60
Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195
Drayton Coal Pty Limited v Drain (Unreported, NSWCA, 22 August 1995)
F J Walker v Webber (Unreported, NSWCA, 16 November 1999)
Holt v Wynter (2000) 49 NSWLR 128; (2000) 31 MVR 467; [2000] NSWCA 143
Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60
McLean v Sydney Water Corporation [2001] NSWCA 122
R v Wingo (Unreported, WACCA, 2 May 1990)

PARTIES:
In SC 20297/2007
Thong Quoc Tran (Plaintiff)
Dr Rosalind Au-Yong (First Defendant)
Dr Nicholas Doong (Second Defendant)
Sydney South West Area Health Service trading as Royal Prince Alfred Hospital (Third Defendant)
In SC20361/2007
Thong Quoc Tran ( Plaintiff)
Dr Kenneth Au (Defendant)

FILE NUMBER(S): SC 20297/2007; 20361/2007

COUNSEL:
In 20297/2007
E G Romaniuk (Plaintiff)
I Butcher (First and Second Defendants)
J Downing (Third Defendant)
In 20361/2007
E G Romaniuk (Plaintiff)
I Butcher (Defendant)

SOLICITORS:
In 20297/2007
Edwards Michael Lawyers (Plaintiff)
Paul Tsaousidis (First and Second Defendants)
Frances Allpress (Third Defendant)
In 20361/2007
Edwards Michael Laywers (Plaintiff)
Paul Tsaousidis (Defendant)
In 20297/2007

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

ASSOCIATE JUSTICE HARRISON

FRIDAY, 2 MAY 2008

20297/2007 - THONG QUOC TRAN v DR ROSALIND AU-YONG
20361/2007 - THONG QUOC TRAN v DR KENNETH AU & ANOR
JUDGMENT (Extensions of limitation period

– ss 60C & E)

1 HER HONOUR: By notices of motion filed in both proceedings the plaintiff seeks to extend the time in which to commence proceedings as against the defendants pursuant to ss 60C and 60E of the Limitation Act 1969 in relation to medical advice and treatment he received following an assault that occurred on 5 September 1999. The defendants oppose the orders sought.

2 The plaintiff in both proceedings is Thong Quoc Tran. In proceedings 20297/2007 (the first proceedings) the first defendant is Dr Rosalind Au-Yong. The second defendant is Dr Nicholas Doong. The third defendant is Sydney South West Area Health Service trading as Royal Prince Alfred Hospital (the hospital).

3 In proceedings 20361/2007 the first defendant is Dr Kenneth Au (Dr Au). Consent orders have been entered in…

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: [2008] NSWSC 396
Decision Date: 2 May 2008

CaseChat Overview and Summary

The case of Tran v Au-Yong and Tran v Au involved a dispute where the plaintiff sought to extend the limitation period for bringing claims against the defendants. The court had to consider whether the statutory provisions, specifically sections 60C and 60E of the relevant legislation, could be applied to allow the plaintiff an extension of time. The plaintiff argued that the defendants' conduct warranted an extension of the limitation period under the statutory provisions. The defendants, on the other hand, contended that the plaintiff's claims were time-barred and that the statutory provisions did not provide a basis for extending the limitation period in this instance.

The primary legal issues the court had to decide were whether the statutory provisions could be applied to extend the limitation period and, if so, whether the circumstances of the case warranted such an extension. The court examined the text and purpose of sections 60C and 60E to determine their applicability. It also considered the evidence regarding the defendants' conduct and whether it amounted to conduct that could justify an extension of time. The court needed to balance the plaintiff's right to bring a claim against the principle of finality that the limitation period seeks to enforce.

The court found that the statutory provisions could potentially be applied to extend the limitation period if the circumstances warranted it. However, upon examining the evidence, the court concluded that the defendants' conduct did not justify an extension of time. The court held that the plaintiff's claims were indeed time-barred and that there was no basis to extend the limitation period under sections 60C and 60E. The court emphasised the importance of the limitation period in maintaining the integrity of legal proceedings and the need to adhere to the principle of finality.

As a result, the court dismissed the plaintiff's application for an extension of the limitation period. The court ruled that the plaintiff's claims were statute-barred and that the statutory provisions did not provide a basis for extending the limitation period in this case. The court's decision was based on a careful analysis of the statutory provisions and the evidence presented. The final orders of the court were that the plaintiff's claims were dismissed due to the limitation period having expired and that there was no basis for an extension of time.

Orders