BATES v ENDREY-WALDER AND ORS [1998] NSWCA 32

BATES v ENDREY-WALDER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY and BEAZLEY JJA and SHEPPARD AJA 11 March 1998, 30 July 1998

[1998] NSWCA 32

LIMITATION OF ACTIONS - Application for extension of time refused by District Court - Application made both pursuant to s58 and s60G of Limitation Act 1969 - Action brought by appellant in respect of incidents occurring in 1976, 1977, 1980, 1985 and 1991 in relation to the consequences of silicone breast implants - Action based on failure of doctors to warn appellant of risks of silicone implant surgery - Whether appellant had established matters provided for in s60I of Limitation Act - Whether trial judge's discretion under s60G miscarried - Whether the case fell within s58 of the Act - Whether trial judge's discretion under s58 miscarried - Exercise by Court of Appeal of trial judge's discretion - Limitation Act 1969 s18A, s57B, s58, s60G, s601. Schedule 5, cl4.

Ford Excavations Pty, Ltd v Do Carmo (1984) 154 CLR 234; [198112 NSWLR Dedousis,, The Water Board (1994) 181 CLR 171

Harris v Commercial Minerals (1996) 186 CLR 1

CRA Ltd v Martignago (1996) 39 NSWLR 13

Commonwealth v Dinnison (1995) 56 FCR 389

Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697

FJ Walker Ltd v Webber (NSW Court of Appeal, 16 November 1989, unreported)

Dravton Coal Pty Ltd v Drain (NSW Court of Appeal, 22 August 1995, unreported)

McLean v Commonwealth of Australia (Sperling J, 28 June 1996, unreported) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Handley JA I agree generally with the reasons for judgment of Beazley JA and Sheppard AJA. This appeal should be dismissed with costs.

Beazley JA I have had the advantage of reading the judgment of Sheppard AJA. His Honour has examined in detail the background to the application for extension of time and the evidence adduced in support of it. It is not necessary to repeat that material.