Yu v Speirs

[2001] NSWCA 373

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 2001
PARTIES :	Dr Michael Wai-Cho Yu v Bradley Speirs & Ors Mark Julian Kessell (t/as Immediate Health Care) & Anor v Bradley Speirs & Anor
JUDGMENT 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 Craddock
SOLICITORS:	Appellant 1: Ebsworth & Ebsworth Appellant 2: Phillips Fox Lawyers Respondent: Charlton Shearman
CATCHWORDS:	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 1962
CASES 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 64644
DECISION:	See Paragraph 73

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40097/01
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



Facts

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 from his right wrist, and had then failed to have a further x-ray taken to ensure the fracture had properly healed. The staff at the Centre included a nurse, a practice manager, and receptionists.

The respondent sued the doctor, who practised at the Centre under a licence, not as an employee. He also sued two other parties, not being sure which one of them operated the Centre, on the basis that the operator of the Centre was vicariously liable for the negligence of the staff. Those two parties were Mr Kessell, the registered owner of the business name “Immediate Health Care”, and a company, of which Mr Kessell was a shareholder and director.

The proceedings were commenced out of time and the plaintiff sought an extension of time pursuant to s 60C(2) Limitation Act 1969 . The trial judge granted the extension as against each defendant; and ordered each defendant to pay its own costs of the application. Each defendant sought leave to appeal against the order extending time and the order as to costs. The Court of Appeal heard the applications for leave and the appeals together.

Mr Kessell and the company sought to have the order extending time overturned on the basis that the respondent had not established a prima facie case against them. Mr Kessell submitted there was no evidence that he employed the staff at the Centre; and the company submitted that there was no evidence that the cast was removed by staff at the Centre, rather than by one of the doctors or their staff. Mr Kessell and the doctor also appealed against the time extension on the basis that there was substantial prejudice to them arising from the delay in bringing the action.

HELD:

Per Rolfe AJA, Beazley JA and Ipp AJA agreeing

Whether the respondent had established a prima facie case

(1) In order for a plaintiff to satisfy the requirement under s 60C(2) that it is “just and reasonable” to extend time, the plaintiff must show that he or she has a viable cause of action: Salido v Nominal Defendant [1993] 32 NSWLR 524; P D v Australian Red Cross Society (NSW Division) & Anor (1993) ATR 81205; Williams v Minister Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497; Fitzgerald v Bankstown City Council (unreported NSWCA 6.11.95); Barlow v Homebush Bay Development Corporation (unreported NSWCA 6.11.95); George v Estate of Bailey & Ors (1998) ATR 81-455.

(2) To establish that he or she has a viable cause of action, a plaintiff must prove facts from which the Court can be satisfied that there is, at least, a reasonable prospect that the plaintiff has sufficient evidence, such that he or she will have a reasonable prospect of success on the ultimate hearing: Martin v Abbott Australasia Pty Limited [1981] 2 NSWLR 431; P D v Australian Red Cross Society (NSW Division) & Anor (1993) ATR 81205; Williams v Minister Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497 P D v Australian Red Cross Society (NSW Division) & Anor (1993) ATR 81205; Williams v Minister Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497; Fitzgerald v Bankstown City Council (unreported NSWCA 6.11.95); Barlow v Homebush Bay Development Corporation (unreported NSWCA 6.11.95); George v Estate of Bailey & Ors (1998) ATR 81-455.

(3) The evidence was totally insufficient to show that Mr Kessell could be made liable, even at the low level necessary: it was conceded that the company was operating the centre and there was no suggestion that Mr Kessell employed any of the staff, which the trial judge was satisfied, at least at a prima facie level, were employed by the company.

(4) Although the respondent’s evidence against the company was only tenuous, it met the test for evidence at this stage: particularly having regard to the respondent’s ability to administer interrogatories, and to otherwise seek information from the company; and to the company’s failure to call any evidence as to the extent of the nurse’s and practice manager’s duties in relation to medical matters – it could not simply rely on its submission without attempting to establish an evidentiary position: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 314 applied.

Whether there was substantial prejudice arising from the delay

(5) The unavailability of the former practice manager as a witness was not shown to give rise to any substantial prejudice to Mr Kessell.

(6) The doctor did not call any evidence which was necessary to make good his submission that there was actual prejudice arising from the missing x-rays: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 314 referred to.

Costs of the application for extension of time

(7) All of the defendants acted reasonably in defending the application for the extension of time, and trial judge should therefore have ordered the plaintiff to pay the defendants’ costs of the application: Holt v Wynter (2000) 49 NSWLR 128 applied.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40097/01
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
Judgment

1 BEAZLEY JA: I agree with Rolfe AJA.

2 IPP AJA: I agree with Rolfe AJA.

3 ROLFE AJA:

Introduction

The plaintiff, Mr Bradley Speirs, (Mr Speirs), for whom Mr G Craddock of Counsel appeared, was born in May 1975. On 11 August 1997, he commenced proceedings in this Court by a statement of claim in which he sued Dr Michael Wai-Cho Yu, (Dr Yu), for whom Mr G M Gregg of Counsel appeared, as the first defendant, and Mr Mark Julien Kessell, trading as Immediate Health Care, (Mr Kessell), for whom Mr A M Colefax of Counsel appeared, as the second defendant. The statement of claim was amended on 17 December 1997, and Dr Yu and Mr Kessell were served with it in early January 1998. Subsequently, the proceedings were transferred to the District Court.

4 The causes of action pleaded related to events on or about 13 April 1993 and in July 1993. The basic allegations were that on 13 April 1993 Mr Speirs, after falling off his skateboard, attended at the premises of Immediate Health Care and consulted Dr Yu about pain in his wrists. Dr Yu advised that the left wrist was sprained and the right one was broken, and referred Mr Speirs for x-rays which, Dr Yu said, confirmed that the right scaphoid bone was fractured “and directed staff of the second defendant to apply a plaster cast to the plaintiff ’s right wrist and arm on 13 April 1993, which cast was subsequently removed by the staff of the second defendant in about July 1993”.

5 It will be necessary to elaborate somewhat on the position of Dr Yu and some staff employed at the Immediate Health Care Centre, (“the Centre”), in due course. Suffice for the moment to say that it was not in issue that Dr Yu was not employed by whoever was running the Centre, but was licensed to pursue his professional activities there, and that whoever was conducting the Centre was not vicariously liable for Dr Yu’s conduct. Whoever was running the Centre employed some staff being, probably, several receptionists, a practice manager and a nurse, for whose activities that entity was vicariously liable.

6 The allegations continued that following increasing pain in the wrists, Mr Speirs sought other medical advice in August 1994 and, upon being referred to an orthopaedic specialist, was advised that both scaphoid bones “were still fractured”. He has had further treatment and alleges, basically, against Dr Yu, that he failed to properly diagnose and treat the various problems of which Mr Speirs complained. There is a very serious issue as to whether Mr Speirs ever complained to Dr Yu about any problem with his left wrist.

7 Mr Speirs makes essentially the same allegations against Mr Kessell, on the basis that he is vicariously liable for the activities of the staff employed at the Centre, although he adds that his staff were negligent when the plaster cast was removed in July 1993, in failing to have a further x-ray of the right wrist taken to ensure that there was a proper uniting of the broken bone.

8 As the causes of action arose in April and July 1993, the limitation period of 3 years ran from May 1993, in respect of the cause of action which allegedly arose in April 1993, that being when Mr Speirs attained his majority, and from July 1993 in respect of the second cause of action. Hence, the proceedings were commenced beyond the limitation period provided by the Limitation Act 1969, (the Act).

9 Dr Yu and Mr Kessell each pleaded, inter alia, that the proceedings were statute-barred. The defences were filed in November 1999. Mr Speirs made an application to the Court, pursuant to s 60C of the Act, to extend the time in August 2000, and also for leave to join Ramlat Holdings Pty Ltd, trading as Immediate Health Care, (Ramlat), for which Mr Colefax also appeared, as a third defendant. Mr Speirs took this course as there is, so far as he is concerned, some doubt as to who was conducting the Centre at all material times.

10 The motions came before Graham DCJ on 2 February 2001. His Honour, after giving lengthy detailed reasons, granted Mr Speirs leave to proceed against all defendants and, in relation to costs, ordered that each party pay his or its own costs of the motion.

The Proceedings In This Court

11 Dr Yu, Mr Kessell and Ramlat have all sought leave to appeal against those decisions. As the arguments advanced in the leave application are directly relevant to the fate of the appeals, if leave is granted, the Court has heard the applications and the appeals together.

The Legislation

12 The applications by Mr Speirs were brought pursuant to s 60C of the Act, which applies, relevantly for present purposes, to a cause of action founded on negligence that accrues on or after 1 September 1990: s 60B. Sub s (2) states:

“(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines”.

13 Section 60E(1) provides:

“(1) In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:
(a) The length of and reasons for the delay,
(b) The extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available,
(c) The time at which the injury became known to the plaintiff,
(d) The time at which the nature and extent of the injury became known to the plaintiff,
(e) The time at which the plaintiff became aware of a connection between the injury and the defendant’s act or omission,
(f) Any conduct of the defendant which induced the plaintiff to delay bringing the action,
(g) The steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received,
(h) The extent of the plaintiff ’s injury or loss”.

14 Whilst s 60G(2) requires the Court to decide whether it is “just and reasonable” to extend the limitation period, and s 60E requires it to have regard “to all the circumstances of the case” and, without affecting the generality of that statement to the specific matters stated, there is no express statement that the Court must have regard to whether, on the application to extend time, the plaintiff must prove a viable cause of action. Section 58, which applies to causes of action which accrued before 1 September 1990, provided in sub-section (2)(b) that it must appear to this Court that, “there is evidence to establish the cause of action, apart from any defence founded on the expiration of a limitation period”.

15 Section 60G(2), which applies to causes of action accruing after 1 September 1990, provides:

“(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines”.

16 Section 60C(2) is concerned with extensions of time where the plaintiff was unaware of the fact, nature, extent or cause of the injury disease or impairment at the relevant time and, accordingly is not directly relevant to the present case. However, the requirement to show that a plaintiff has a viable cause of action, and the extent of the evidence necessary to do that is considered in a number of cases brought pursuant to that section. It is therefore, in my opinion, relevant to refer to it.

The Application Of The Legislation

17 Most cases, in which an extension of time is sought, are concerned with the plaintiff ’s providing acceptable reasons for the delay in bringing the proceedings, and the issue as to whether, and to what extent, the defendant has suffered prejudice in consequence of the delay. However, there is clearly an obligation on the plaintiff, relevantly for present purposes, in satisfying the requirement that it is “just and reasonable” to extend time, not merely to be able to plead a cause of action, which is not susceptible of being struck out, but to prove facts from which the Court can be satisfied that there is, at least, a reasonable prospect that the plaintiff has sufficient evidence, such that he or she will have a reasonable prospect of success on the ultimate hearing. That, which was stated expressly in s 58(2)(b), is implied into sections such as s 60C and s 60G on the basis that it is not just and reasonable to require a defendant to be burdened with a hopeless case, which is brought out of time. A substantial question in this case is the level to which the evidence must rise to enable the prospective plaintiff to proceed with the action.

18 In Salido v Nominal Defendant [1993] 32 NSWLR 524, this Court was concerned with an application to extend time pursuant to s 52(4) of the Motor Accidents Act 1988. That section merely provided that a claim could not be brought beyond the limitation period “except with the leave of the Court”.

19 In considering whether leave should be granted, Gleeson CJ said, at p 528:

“A Court would not grant leave under s 52(4) if to do so would be futile because of a certainty that the proceedings would fail on some other ground”. (my emphasis)

20 Subsequently, at p 529, his Honour said:

“It was argued on behalf of the Nominal Defendant, and I would accept, that in a proper case leave may be refused under s 52(4) on the ground that to grant it would be futile because of the applicant’s inability to comply with s 52(3)”.

21 This, as I would understand it, was an example of the type of futility to which his Honour was referring at p 528.

22 Thus, one question, which has arisen in the present case, is whether Mr Speirs has established, to the level necessary, facts which would entitle him to succeed against either Mr Kessell or Ramlat. There is no such issue in relation to Dr Yu.

23 The proceedings were conducted in this Court, and before Graham DCJ, on the basis that it was necessary for Mr Speirs to establish a “prima facie” case. No definition was given as to what constitutes such a case for present purposes.

The Application By Dr Yu

24 Dr Yu had two complaints about his Honour’s reasons. The first was that his defence of the proceedings would be substantially prejudiced by the absence of certain x-rays and CT scans, which were obtained originally, but which are now not available. The second concerned the costs order. This allegation of prejudice was made as a matter of submission. The significance of the x-rays and the CT scans was necessary, so it was submitted, to show the condition of the breaks and when they occurred. However, Mr Gregg conceded that the defendant had called no evidence to establish the criticality of those x-rays and CT scans for that purpose and, in particular, that if x-rays and CT scans were taken now, they would not demonstrate the position which the missing ones are supposed to do.

25 Prejudice may be either actual or presumptive. In this case, the prejudice for which Mr Gregg contended was actual, but no evidence was called which, in my opinion, was necessary, if Dr Yu was to make good his submission that there was such prejudice: Nowlan v Marson Transport Pty Limited (2001) NSWCA 346. In these circumstances, Dr Yu’s application for a grant of leave on the grounds of prejudice must, in my opinion, fail.

26 The next question is whether that failure, in all the circumstances of this case, is sufficient to lead to the costs’ order his Honour made. It is apparent from a reading of his Honour’s judgment that, so far as Dr Yu was concerned, there were a number of factual issues, including most significantly the one concerning whether any complaint was made to him by Mr Speirs about the left wrist. There was no suggestion by his Honour that Dr Yu acted in any way unreasonably in contesting Mr Speirs’ application. To the contrary, his lengthy judgment makes it clear that Dr Yu’s opposition was reasonably justifiable if not ultimately successful.

27 Part 39A r 32 of the District Court Rules provides:

“32 Where a party applies for an extension of time, unless the Court otherwise orders, the parties shall, after the conclusion of the proceedings, pay the costs of and occasioned by the application, or any order made on or in consequence of the application”.

28 The rule recognises that, at least prima facie, the party seeking the Court’s indulgence must pay the costs of obtaining it. In Holt v Wynter [2000] 49 NSWLR 128, a Court of five Judges was constituted to consider an appeal against a District Court decision dismissing an application for leave to commence proceedings for damages for injury suffered in a motor vehicle accident pursuant to s 52(4). Sheller JA, with whose reasons Meagher and Handley JJA and Brownie AJA agreed, said, at pp 147-148:

“In relation to costs ordinarily a successful applicant, who has allowed him or itself to get out of time, should pay the costs of the application unless the respondent’s opposition was wholly unreasonable. Although Judge Cantrill was satisfied that the evidence explained and excused the applicant from any responsibility for the delay, the fact remains that one or more of the solicitors she retained were responsible for the delay. The respondent was not. In the circumstances, particularly having in mind the question raised about the availability of medical records, I do not regard the respondent’s decision to resist the application as unreasonable”. (My emphasis)

29 It seems to me that in the circumstances of the present case Dr Yu, and I would add Mr Kessell and Ramlat, all acted reasonably in defending the application, and that the order for costs, which Sheller JA made, should have been made in the present case in relation to all.

The Application Of Mr Kessell

30 On behalf of Mr Kessell, Mr Colefax relied on three points. First, he submitted, that there was prejudice because a former employee at the Centre, Ms Molly Liu, who was the Practice Manager, had left Australia in about June 1999 and, as at the date of the hearing before his Honour, it had not been possible to communicate with her. The relevance of this was said to be that Ms Liu would be able to provide evidence as to what had transpired at the Centre in 1993. It was also asserted that she would be able to answer an allegation by Mr Speirs that the plaster had been removed by a female doctor of Asian appearance, the suggestion being that that person was Ms Liu.

31 There are several reasons why I do not consider that the absence of Ms Liu constituted any substantial prejudice to Mr Kessell. First, it was not established that Ms Liu was of Asian appearance. Even if one were to assume that the name itself is of Asian origin, a matter about which I am not aware, there is no reason to suppose that Ms Liu was of Asian appearance. According to the uncontradicted evidence, she had left Australia after having remarried. It may well have been that she had previously married an Asian and taken his name, but that she was not an Asian. Mr Kessell proffered no evidence that she was of Asian appearance, but more significantly, in my opinion, he proffered no evidence from any other persons employed at the Centre, or concerned in running it, such as Dr Bedkober, as to what, if anything, they could say about the circumstances which obtained at it in July 1993. Nor was there any evidence that, as a matter of practice or direction, employees of the Centre, as opposed to doctors working at the Centre, and staff employed by them, did not, or were instructed that they should not, undertake any medical procedures. In the absence of any of such evidence, I am not satisfied that Mr Kessell established any substantial prejudice by reason of the delay.

32 Mr Kessell’s next submission was, first, that, as at July 1993, the evidence showed that he had nothing to do with the Centre, save for being a director of and shareholder in Ramlat, and secondly, that there was no evidence to support the essential submission, upon which he could be made liable, namely that the plaster cast was removed by any person employed by him. Rather, such evidence as there was indicated that, at all material times, the Centre was conducted by Ramlat, which employed the receptionists, Practice Manager, and nurse. We were informed from the Bar Table, without objection, that in its defence Ramlat admitted that it was conducting the Centre. No submission was made that it was not.

33 The evidence thus established that as at July 1993, Mr Kessell was not running the Centre, and there was no evidence that he was employing any of the staff at it. The question then is whether it would be futile to allow the proceedings against him to go forward. I have referred to what Gleeson CJ said about futility in Salido, and to the fact that the matter was argued before the trial Judge and us on the basis that Mr Speirs had to establish a prima facie case. It will be necessary to consider the authorities dealing with the case an applicant must establish, at this stage. Thereafter, I shall consider whether Mr Speirs has established any entitlement to sue Mr Kessell.

The Relevant Test To Be Applied On Such An Application

34 In Martin v Abbott Australasia Pty Limited [1981] 2 NSWLR 431, Hunt J considered in great detail what had to be established pursuant to s 58(2) of the Act, to obtain an extension. That section, which is not applicable to the present case, expressly provided (s 58(2)(b)) that there be evidence:

“… to establish the cause of action, apart from any defence founded on the expiration of a limitation period”.

35 That, of course, is different from s 60C. However, his Honour’s reasons have provided a starting point in a number of later cases for a consideration of the case to be made by an applicant, at this stage.

36 At p 441, his Honour considered the plaintiff ’s causes of action, and reviewed a number of cases relating to various legislation, particularly limitation legislation, in this and other States. At p 443, he quoted from the judgment of Reynolds JA, with whom Samuels JA agreed, in Ford Excavations Pty Limited v Do Carmo [1981] 2 NSWLR 253, where Reynolds JA said, in relation to s 57:

“The question is not related to all the items of proof gathered for the trial pursuant to an advice on evidence. It is not a question of conducting a hypothetical trial with the full array of witnesses both lay and expert. It is a question, as Lord Denning ([1968] 2 QB 372, at p 379) put it, of whether the facts and appropriate advice would induce a belief in the reasonable man as a prospective plaintiff that he had a ‘worthwhile’ case and under the Act that he ought to launch it”.

37 Hunt J continued:

“It was conceded by the defendant in the present case that:
(a) The plaintiff did not need to produce the actual evidence to be adduced at the trial, and
(b) The material showing that there is evidence to establish the cause of action need not itself be in admissible form but could be adduced in this application by way of hearsay”.

38 His Honour considered these concessions were correctly made, and continued:

“What is left to be shown by the plaintiff in order to satisfy the requirements of s 58 was, in my respectful view, correctly stated by Gowans J ((1975) VR 619 at pp 630, 631) and by Kelly J ((1980) Qd R 350, at p 352). The plaintiff must make it appear that the evidence to establish his cause of action exists and that it is available to be adduced at the trial. The test is thus somewhat less exact than that which is applied by a judge at the conclusion of the evidence at the trial itself in deciding whether there is a case to go to the jury. A certain amount of speculation as to the precise nature of the evidence which will be called at the trial necessarily must be permitted. It was also conceded by the defendant (in my view correctly) that once one cause of action was so identified, the provisions of Pt 20 (r 4(5)) in effect meant that a plaintiff could plead any other cause or causes of action based upon the same or substantially the same facts; so that there was accordingly no need in an order pursuant to s 58 to specify the precise cause of action in relation to which the limitation period was to be extended”. (My emphasis)

39 He then turned to consider the evidence the plaintiff had shown as available to be adduced at the trial, to which he referred in some detail and he said, at p 445, in dealing with the position at common law, that he was satisfied that the plaintiff had made it appear that the evidence to establish his cause of action at common law existed, and was available. At p 446, he said that he was satisfied that the plaintiff had made it appear that the evidence to establish at least one, if not both, of his causes of action, based upon s 41(2) of the Factories, Shops and Industries Act 1962, existed and was available to be adduced at the trial.

40 In P D v The Australian Red Cross Society (NSW Division) & Anor (1993) ATR 81205 at p 62013, Badgery-Parker J considered that the limitation period should be extended, pursuant to ss 58(2) and 60G(2).

41 At p 6201, his Honour said:

“However, the need (section 60(G)) for the Court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff ’s cause of action. It would rarely be possible to say that it was just and reasonable to subject a defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. The learned Master noted that there was a real issue between the parties as to whether or not the plaintiff had established that there was evidence available to establish the cause of action alleged against each of the defendants. He found it unnecessary to make any determination on that issue, having regard to the conclusions that he had reached on other matters”.

42 Badgery-Parker J continued that the nature of the test to be applied was that stated by Hunt J in Martin, and quoted the passages from that judgment, to which either I have referred or quoted. He referred to a number of other authorities, and to the submission of each of the defendants, that the plaintiff had failed to show that there was evidence to establish the cause of action.

43 This was a case in which the plaintiff was seeking to bring proceedings against the defendant, based upon the failure to properly screen donors of blood, with the alleged consequence that she received a transfusion of blood contaminated with HIV. There was also an allegation about a failure to warn.

44 At p 62020, his Honour said that the real issue “at this stage” was to determine how far the plaintiff was required to go in demonstrating the existence of evidence to establish the cause of action, and continued:

“It is true that there is no actual evidence before me (nor was there before the Master) to show that in fact the first defendant did not screen donors; but at this stage of the proceedings it is in my view permissible to draw that inference from the fact that contaminated blood was in fact transfused to the plaintiff. Obviously if the evidence at the trial goes no further than that which can be pointed to here, the plaintiff would fail, but by then it may be anticipated that discovery will have taken place and interrogatories will have been administered so that the trial court will be presented with a clear picture of just what was in fact done in the way of screening and how that measures up to what could have been done at any relevant time. In Dwan Thomas J pointed out that it is open to the defendant upon such an application as this to adduce evidence to show that the plaintiff ’s claim is not maintainable or that litigation would be a futility … Where a defendant does not avail itself of the opportunity to adduce evidence, the court in an application such as this may more readily infer the absence of the suggested precautionary measures which the plaintiff will assert were reasonably necessary, and may regard even a scintilla of evidence (which is the most that can be said of the plaintiff ’s evidence here) as sufficient for the purposes of s 58(2)(b)”.

45 His Honour concluded that, as the plaintiff had satisfied that test, that would be a relevant matter in considering whether it would be just and reasonable to make an order pursuant to s 60G(2).

46 In Williams v Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497 Kirby P, at p 508, referred to a submission that the learned trial Judge had overstated the extent to which Ms Williams had to establish a cause of action to secure the extension sought. His Honour continued:

“In his reasons, his Honour referred to the ‘requirement’ of Ms Williams to establish an available cause of action. He stated that ‘It must now appear that the evidence to establish her cause of action exists’. It was submitted that this involved a misstatement of law which vitiated the order under appeal. To the extent that it was submitted that the need to establish a viable cause of action was irrelevant to the discretion invoked (for example by reason of the terms of section 60G by contrast to the former provisions of section 58(2)(b) of the Limitation Act 1969) I would reject this assertion. It is contrary to the authority of this Court: see James Hardie & Co Pty Ltd v Wootten (at 717). By the same token it is obviously unnecessary for a claimant to establish a case in the detail that would be required at the trial. The reason for this was sufficiently explained by Hunt J in analogous circumstances in Martin … The alteration of the legislation has not removed the need to demonstrate, in an appropriate preliminary way, the apparent viability of the action and, thus, the utility of providing the extension of time sought. To permit an obviously hopeless case to proceed would be to condone the harassment of a defendant otherwise protected by a time bar”.

47 Priestley JA generally agreed with Kirby P and, whilst Powell JA was in the minority in the particular circumstances, his Honour said at p 520:

“It is sufficient, in my view, to record that notwithstanding the less than burdensome onus which, at this stage of the proceedings, fell upon the appellant to provide to the Court sufficient evidence to show that she had a viable cause of action (see Martin …) the appellant in the view of Studdert J – which view I share, and from which view Kirby P appears not to dissent – failed to do so”.

48 Section 60G was nextly considered by this Court in two cases, which appear to have been heard concurrently, namely Fitzgerald v Bankstown City Council (Court of Appeal – 6 November 1995 – unreported), and Barlow v Homebush Bay Development Corporation (Court of Appeal – 6 November 1995 – unreported). In both cases the Court comprised Clarke and Powell JJA and Badgery-Parker AJA. Clarke and Powell JJA agreed with the reasons of Badgery-Parker AJA and, in addition, Clarke JA referred to his reasons in Colorado v Haden Engineering Pty Limited & Anor, in which judgment was also given on 6 November 1995.

49 The situation had arisen that the law had been changed by the reversal by the High Court of the decision in Dedousis v Water Board (1994) 181 CLR 171, the learned District Court judge, from whom the appeal was brought, being constrained by the authority, which was thereby overruled.

50 Badgery-Parker J concluded his reasons thus:

“The making of such an order would be inappropriate only if it appeared that the application, if considered by the District Court on a proper basis, would be bound to fail . It would be bound to fail unless the claimant could show not only that there was evidence available to him to support the extension of time application, but also, to the extent necessary in such an application, that there was evidence to establish the cause of action. Although, where an application to extend the time is based upon s 58, there is an express requirement that that be shown, there is no requirement expressed in the provisions of sub division (3) and in particular section 60G”. (My emphasis)

51 His Honour then referred to what he had said in P D and concluded:

“In the present proceedings it is relevant to note the contents of the affidavit of the claimant sought to be adduced as additional evidence in the Court only for the purpose of showing that there is evidence available to establish the cause of action. The test is not a demanding one: see Martin …”.

52 Essentially the same reasoning underlay the decision in Barlow.

53 A further question arose in relation to s 60G in George v Estate of Bailey & Ors (1998) ATR 81-455 at p 64644. This was also a decision of Badgery-Parker J and, at p 64649, his Honour said:

“There is one aspect of an application such as this which it was unnecessary for the High Court to discuss in Taylor (Brisbane South Regional Health Authority v Taylor), and that is the question whether the plaintiff is able to show a viable cause of action”.

54 His Honour continued:

“The necessity that to do so was well established before Taylor’s case”.

55 He referred to the various authorities to which I have made reference and some others and, after quoting from his own decision in P D and the judgment of Kirby P in Williams, he said that it had been submitted that that line of authority was wrong. He considered that the submissions to that effect misrepresented the position, which he said was that the plaintiff seeking an extension had to demonstrate that he had a cause of action, and required no more than that he demonstrate that evidence existed which would be available to him at the trial and which, if accepted, would establish at the trial that he had a cause of action, “a much less demanding requirement”.

The Position Of Mr Kessell Revisited

56 Against this background of authority, it is necessary to consider, first, Mr Kessell’s submission that there is no prima facie case establishing that any employee of his removed the cast, and in doing so to consider the evidence as to the operation of the Centre. What either Mr Kessell or Ramlat provided was a building in which doctors, and the staff employed by those doctors, could carry on their profession. In addition, certainly as at 1995, the person running the Centre provided two receptionists, a practice manager, and a nurse, who, at that time, appears to have been a male. It was not in issue that if any of these people were negligent, their employer would be vicariously liable provided, of course, that they were acting in the course of their engagement.

57 The evidence before the Court includes an historical New South Wales business extract record of the name “Immediate Health Care”, which shows that the name was registered on 12 October 1993, and that the business activities commenced on that date at various places including the Centre. The registered proprietor of the business name was stated to be Mr Kessell (“as of 14-Jun 1990”). The “Start Date” was stated to be 12 October 1993.

58 In his reasons, his Honour said that, so far as Mr Kessell and Ramlat were concerned, the question of liability was “a little more complicated”. He referred to the fact that the claim against both was pleaded in contract and tort, and that it had been submitted, on behalf of Mr Kessell and Ramlat, that there was no evidence of the existence of any contract between Mr Speirs and either of them, nor any evidence of its contents. He referred to the submission, so far as the cause of action was in tort, as being based upon the assertion that Mr Kessell and/or Ramlat merely provided facilities for doctors to provide services, so that they, in turn, could provide medical services to patients, rather than Mr Kessell or Ramlat providing them, and he noted the provisions of the specimen licence agreement, which it was apparently accepted set out the relationship between the licensor and the doctors.

59 His Honour referred to the fact that there were some employees of the Centre and that, on the relatively limited evidence available, they would, in all probability, be employed by Ramlat. He considered that it would be unlikely that the relationship between Dr Yu and Ramlat, in point of law, was any closer than that of any of the doctors who had formal licence agreements with Ramlat.

60 His Honour then referred to the submission that there was no evidence that the cast was removed by an employee of Mr Kessell or Ramlat, and that the Court had been invited to conclude that the only inference was that it was removed by a medical practitioner. He also noted the submission that, at least initially, the solicitors acting for Mr Speirs had, by letter dated 24 February 1999, stated that in July 1993 Mr Speirs was seen by a female Asian doctor, who he had not consulted before and did not remember consulting again.

61 On 26 February 1999 the solicitors for Mr Speirs advised the solicitors for Mr Kessell:

“We confirm that it is our intention to join the relevant medical practitioner (in the event that he was seen by one, as opposed to a staff member of the Immediate Health Care Centre) as a defendant in these proceedings once that person’s identity can be obtained”.

62 From all this, his Honour said that he was invited to draw the conclusion that the assumption made by Mr Speirs should be regarded as correct, and that it would be unlikely that he was seen by anyone other than a doctor, who was working in the clinic pursuant to an arrangement, as outlined in the licence agreement. He continued that Mr Speirs had sought to counter those arguments, and establish a prima facie case in respect of Mr Kessell and Ramlat, on the basis that he went to seek treatment at the Centre. He referred to the submission that there was sufficient evidence to enable the Court to conclude that Ramlat was the employer of the non-medical staff at the clinic, and said:

“As I have said, whilst the evidence is by no means entirely clear on that point, it does seem to me to be sufficient, at least at a prima facie level, to enable that conclusion to be drawn”.

63 His Honour then noted the submission that, in the absence of identification of the precise person who removed the cast, it was Ramlat, “which should be held responsible in law for any negligence arising out of that particular consultation or visit to the clinic on the basis that, having regard to the obligation of a general practitioner to ensure that a person was examined and had x-rays after the removal of a plaster cast, then the same duty of care should be imposed upon an entity which provided a person who was not a medical practitioner to consult with the plaintiff, in circumstances where he went to the premises for the purposes of having the cast removed”.

64 Ultimately his Honour held that there was a prima facie case in respect of Ramlat. Having found the prima facie case in respect of Ramlat, he continued that the precise relationship between it and Mr Kessell was a matter which would mean that there is also sufficient evidence to find that Mr Kessell was vicariously liable for the conduct of the person who removed the plaster cast.

65 In my respectful opinion, even allowing for the far less stringent test which is applicable to the evidence to be called on an application such as the present, the relationship between Mr Kessell and Ramlat, which was that Mr Kessell was a director of, and shareholder in, it, was totally insufficient to show that Mr Kessell could be made liable. There was no suggestion that Mr Kessell employed any of the staff, which his Honour was satisfied, at least at a prima facie level, were employed by Ramlat.

66 It was not in issue that the entity vicariously liable, in the circumstances of this case and more generally, is the employer.

67 There was prima facie evidence and, as I understood the submissions, it was not in issue that Mr Kessell had granted a licence of the business name to Ramlat. In a letter from Phillips Fox to the solicitors for Mr Speirs, dated 21 January 2000, it was stated that Mr Kessell resided in the United States, and had not had anything to do with the operation of the Immediate Health Care Medical Centres for many years; that that was consistent with previous advices that he simply owned the business name “Immediate Health Care”; and that each individual medical centre was operated by a company. The letter confirmed that Phillips Fox were receiving instructions from a director of the companies, which were responsible for the operation and management of Immediate Health Care Centres in New South Wales at the relevant time.

68 In this Court it was conceded that Ramlat was operating the Centre, which is consistent with the letter from Phillips Fox. In those circumstances, there was no connection, relevant to the present proceedings, between Mr Kessell and the employees at the Centre. Accordingly, in my opinion, Mr Speirs has failed to establish any prima facie case, even at the low level necessary to be established against Mr Kessell.

The Position Of Ramlat

69 Mr Colefax submitted that there was simply no evidence to establish any case that an employee of Ramlat, rather than one of the doctors or staff directly employed by one of the doctors, removed the cast. Mr Craddock submitted that one should assume from the facts that no note was made of the removal of the cast on Mr Speirs’ medical notes, and that no charge was made for its removal, that it was done by someone other than a medical practitioner. The evidence against Ramlat is, at this stage, unsatisfactory. However, it does establish that Ramlat had employees on the premises, and that at least one of them was a nurse. One can well understand that it may be difficult for Ramlat, at this stage, to negate that the nurse, or perhaps the practice manager, removed the plaster cast. But Ramlat must be aware of the procedures followed at the Centre and, in particular, whether any member of its staff was authorised to carry out medical procedures on behalf of the doctors’ patients. At the very least, Ramlat could have put on evidence that the members of its staff were prohibited from engaging in such activities, if that were the case. The extent of their duties, particularly that of the nurse and practice manager, in relation to medical matters, was peculiarly within the knowledge of Ramlat. Prima facie, one could assume that the receptionists were employed for the usual purpose of that occupation, which would have nothing to do with medical treatment. One could not make that assumption in relation to the other two members of the staff.

70 In my opinion, Mr Speirs established sufficient to call for some explanation from Ramlat, even at this stage of the proceedings, of the activities of the nurse and practice manager. Ramlat is not entitled to simply rely upon submissions in circumstances where it makes no attempt to establish an evidentiary position: Nowlan.

71 Whilst the evidence is far from strong in relation to Ramlat, rather it is tenuous, it nonetheless, I think, meets the test for evidence at this stage, particularly when one has regard to the ability of Mr Speirs to administer interrogatories, and otherwise to seek relevant information from it, and to the failure of Ramlat to call any evidence of the type to which I have referred.

Costs

72 While basically the successful parties are entitled to their costs, I think that in the application of Dr Yu and Ramlat, that as both parties have engaged some measure of success, the appropriate order is that each party pay his and its own costs of the application for leave to appeal and of the appeal.

Proposed Orders

73 As between Mr Speirs and Dr Yu, I propose the following orders:

(a) Application for leave to appeal granted on the question of the costs of the Notice of Motion only;
(b) Appeal allowed on the question of the costs of the Notice of Motion;
(c) The order of Graham DCJ, that Dr Yu pay his costs of the motion, be set aside, and in lieu thereof it be ordered that Mr Speirs pay Dr Yu’s costs of the notice of motion, however the payment of such costs not to be enforced prior to final judgment in the action, without the leave of the District Court;
(d) Each party pay his own costs of the application for leave to appeal, and of the appeal.

74 As between Mr Speirs and Mr Kessell, I propose the following orders:

(a) Application for leave to appeal granted;

(b) Appeal allowed;

(c) The order of Graham DCJ, extending the time for Mr Speirs to sue Mr Kessell, and ordering Mr Kessell to pay his costs of the notice of motion, be set aside;
(d) In lieu thereof the proceedings against Mr Kessell be dismissed;
(e) Mr Speirs pay Mr Kessell’s costs of the application for leave to appeal and of the appeal and have a certificate, if otherwise entitled.

75 As between Mr Speirs and Ramlat, I propose the following orders:

(a) Application for leave to appeal granted on the question of costs of the Notice of Motion only;
(b) Appeal allowed on the question of the costs of the Notice of Motion;
(c) The order of Graham DCJ, that Ramlat pay its costs of the motion, be set aside, and in lieu thereof it be ordered that Mr Speirs pay Ramlat’s costs of the notice of motion, however the payment of such costs not to be enforced prior to final judgment in the action, without the leave of the District Court;
(d) Each party pay his and its own costs of the application for leave to appeal, and of the appeal.
******