Wiggins v Meagher & Anor [2003] NSWCA 49

New South Wales Court of Appeal

CITATION : Wiggins v Meagher & Anor [2003] NSWCA 49 HEARING DATE(S) : 10 March 2003 JUDGMENT DATE : 10 March 2003

JUDGMENT OF : Giles JA at 1; Young CJ in Eq at 14; Grove J at 15 DECISION : 1. Grant leave to appeal; 2. Direct the filing of a notice of appeal within 7 days; 3. Appeal allowed; 4. Set aside the order made dismissing the statement of claim; 5. Order that the limitation period be extended pursuant to Div 3 subdivision 3 and Sch 5 of the Limitation Act 1969 up to and including 25 May 2001; 6. Set aside the order for costs made in the District Court and in lieu thereof that the plaintiff pay the second and third defendants costs of the application to extend time in the District Court; 7. Order that the opponents pay the claimant's costs of the proceedings in this Court and have certificates under the Suitors Fund Act if otherwise qualified.

CATCHWORDS : Limitations - extension of time - prejudice from delay whereby fair trial unlikely - clinical notes destroyed - whether significant prejudice - not shown clinical notes likely to bear upon the negligence alleged or causation - extension granted. ND Lisa Sharon Wiggins - Claimant PARTIES : Dr William Meagher - First Opponent Southern Area Health Services - Second Opponent FILE NUMBER(S) : CA 40274/02 J D Hislop QC & A J Hourigan - Claimant COUNSEL : S D Kalfas - First Opponent M K Scott - Second Opponent Higgins & Higgins, Lithgow - Claimant SOLICITORS : Ebsworth & Ebsworth - First Opponent Sparke Helmore - Second Opponent

LOWER COURT District Court JURISDICTION : LOWER COURT DC 43/01 (Lithgow) FILE NUMBER(S) : LOWER COURT Williams DCJ JUDICIAL OFFICER :