JONES v ROYAL HOSPITAL FOR WOMEN and ANOR [1998] NSWCA 119

JONES v ROYAL HOSPITAL FOR WOMEN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Mason P, HANDLEY and BEAZLEY JJA 13 March 1998, 24 July 1998

[1998] NSWCA 119

Admission of fresh evidence — interlocutory appeal — Limitation of Actions — whether "just and reasonable" to extend limitation period — Limitation Act 1969, s60G and s601

Appeal and New Trial — admission of fresh evidence — interlocutory appeal — special grounds for admission need not be established — Supreme Court Act 1970, s75A(7)

Limitation of Actions — extension of period — statutory requirements — personal injury case — whether "just and reasonable" to extend limitation period — applicable legal principles — relevant considerations — Limitation Act 1969, s60G and s601

It was common ground that the limitation period expired on 16 October 1987. The appellant argued for an extension based solely on s60G and s60I of the Limitation Act 1969 ("the Act'). Balla ADCJ rejected the application for extension of time. Her Honour held that the requirements of s60I had been satisfied. However, in exercising her discretion under s60G the judge declined to extend the limitation period on the basis that the appellant had not shown that it was just and reasonable for the limitation period to be extended.

The decision of Balla ADCJ was challenged on the basis that her Honour failed to exercise the discretion under s60G in accordance with correct legal principles, especially in the light of the recent decisions of the High Court in Brisbane South Regional Health Authority v Taylor (1997) 186 CLR 541 and of the Court of Appeal in Sydney City Council v Zegarac (1998) 43 NSWLR 195.

During the argument of the appeal, the importance of the availability of Dr O'Sullivan to give evidence became apparent. Within the Proposed Amended Statement of Claim, the appellant included particulars of negligence dependant on a finding that Dr Zipser was not adequately supervised. The evidence disclosed that Dr O'Sullivan was present to resuscitate the baby shortly after birth. However, it did not indicate at what (if any) earlier point he arrived to supervise the birth.