CITATION: Yu v Speirs [2001] NSWCA 373 FILE NUMBER(S): CA 40097/01; 40080/01 HEARING DATE(S): 03/10/01 JUDGMENT DATE:
26 October 2001PARTIES :
Mark Julian Kessell (t/as Immediate Health Care) & Anor
Dr Michael Wai-Cho Yu
v
Bradley Speirs & Ors
v
Bradley Speirs & AnorJUDGMENT OF: Beazley JA at 1; Ipp AJA at 2; Rolfe AJA at 3
LOWER COURT JURISDICTION : District Court LOWER COURT
FILE NUMBER(S) :1312/00 LOWER COURT
JUDICIAL OFFICER :Graham DCJ
COUNSEL: Appellant 1: G M Gregg
Appellant 2: A M Colefax
Respondent: G CraddockSOLICITORS: Appellant 1: Ebsworth & Ebsworth
Appellant 2: Phillips Fox Lawyers
Respondent: Charlton ShearmanCATCHWORDS: LIMITATION OF ACTIONS - application for extension of time - Limitation Act 1969, s 60C(2) - not "just and reasonable" to extend time if plaintiff does not show that he or she has a viable cause of action - level of evidence sufficient to show that - whether delay gave rise to substantial prejudice to defendants - whether trial judge erred in ordering unsuccessful defendants to pay own costs of application. - COSTS - costs of application to extend time under Limitation Act 1969 - whether trial judge erred in ordering unsuccessful defendants to pay own costs of application. LEGISLATION CITED: Limitation Act 1969
Motor Accidents Act 1988
Factories, Shops & Industries Act 1962CASES CITED: Salido v Nominal Defendant [1993] 32 NSWLR 524
Nowlan v Marson Transport Pty Limited (2001) NSWCA 346
Holt v Wynter (2000) 49 NSWLR 128
Martin v Abbot Australasia Pty Limited (1981) 2 NSWLR 431
Ford Excavations Pty Limited v Do Carmo (1981) 2 NSWLR 253
P D v The Australian Red Cross Society (NSW Division) & Anor (1993) ATR 81205 at p 62013
Williams v Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497
Fitzgerald v Bankstown City Council (Court of Appeal - 6/11/95 - unreported)
Barlow v Homebush Bay Development Corporation (Court of Appeal - 6/11/95 - unreported)
Colorado v Hayden Engineering Pty Limited & Anor
Dedousis v Water Board (1994) 181 CLR 171
Colorado v Haden Engineering 06/11/95 NSWCA CA 40110/94
George v Estate of Bailey & Ors (1998) ATR 81-455 at p 64644DECISION: See Paragraph 73
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL40097/01
40080/01
DC1312/00
BEAZLEY JA
IPP AJA
ROLFE AJA
Friday, 26 October 2001
Dr Michael Wai-Cho Yu v Bradley Speirs & Ors
Mark Julian Kessell (t/as Immediate Health Care) & Anor v Bradley Speirs & Anor
The respondent commenced proceedings in the District Court in 1997 in relation to alleged negligent treatment he received at Immediate Health Care Centre in 1993. He alleged that a doctor whom he had consulted at the Centre had failed to properly diagnose and treat a fracture to his left wrist; and had failed to properly treat a fracture to his right wrist. He also alleged that staff at the Centre had been negligent in treating him: it was alleged that staff had removed the plaster cast…
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- AGLC
- Yu v Speirs [2001] NSWCA 373
- Case
- [2001] NSWCA 373
- Decision Date
CaseChat Overview and Summary
The appeal concerned an application for an extension of time to commence proceedings under section 60C(2) of the *Limitation Act 1969* (NSW). The applicants, the plaintiffs in the original proceedings, sought to extend the time within which to file a statement of claim against the respondents, the defendants. The primary judge had refused the application for an extension of time.
The central legal issues before the Court of Appeal were whether the primary judge erred in finding that it was not "just and equitable" to extend the time for the plaintiffs to commence proceedings, and whether the primary judge erred in ordering the unsuccessful defendants to pay their own costs of the application. In determining whether to grant an extension of time, the court was required to consider whether the plaintiffs had demonstrated a viable cause of action and whether the delay had caused substantial prejudice to the defendants.
The Court of Appeal held that the primary judge had erred in her assessment of the plaintiffs' prospects of success. Her Honour found that the plaintiffs had provided sufficient evidence to establish a *prima facie* case, and that the prejudice claimed by the defendants was not substantial enough to outweigh the plaintiffs' right to pursue their claim. The court also found that the primary judge had erred in her costs order, stating that it was not appropriate to order the unsuccessful defendants to pay their own costs in circumstances where the plaintiffs had been unsuccessful in their application for an extension of time.
The Court of Appeal ordered that the appeal be allowed, the orders of the primary judge be set aside, and that the plaintiffs be granted an extension of time to file their statement of claim. The court further ordered that the defendants pay the plaintiffs' costs of the application for an extension of time, and that the costs of the appeal be determined.
The central legal issues before the Court of Appeal were whether the primary judge erred in finding that it was not "just and equitable" to extend the time for the plaintiffs to commence proceedings, and whether the primary judge erred in ordering the unsuccessful defendants to pay their own costs of the application. In determining whether to grant an extension of time, the court was required to consider whether the plaintiffs had demonstrated a viable cause of action and whether the delay had caused substantial prejudice to the defendants.
The Court of Appeal held that the primary judge had erred in her assessment of the plaintiffs' prospects of success. Her Honour found that the plaintiffs had provided sufficient evidence to establish a *prima facie* case, and that the prejudice claimed by the defendants was not substantial enough to outweigh the plaintiffs' right to pursue their claim. The court also found that the primary judge had erred in her costs order, stating that it was not appropriate to order the unsuccessful defendants to pay their own costs in circumstances where the plaintiffs had been unsuccessful in their application for an extension of time.
The Court of Appeal ordered that the appeal be allowed, the orders of the primary judge be set aside, and that the plaintiffs be granted an extension of time to file their statement of claim. The court further ordered that the defendants pay the plaintiffs' costs of the application for an extension of time, and that the costs of the appeal be determined.
Orders
Orders of the court
See Paragraph 73
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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