NSW Caselaw
New South Wales Court of Appeal
CITATION: PELL v HODGES [2007] NSWCA 234
HEARING DATE(S): 21/08/2007
JUDGMENT DATE: 5 September 2007
JUDGMENT OF: Tobias JA at 1; Basten JA at 2; Handley AJA at 7
DECISION: 1. Appeal allowed with costs; 2. Decision of Latham J of 22 June set aside; 3. In lieu thereof order that the Notice of Motion of 14 March 2006 be dismissed with costs, and that orders be made in accordance with prayers 1 and 2 of the Notice of Motion of 6 April 2006; 4. The respondent to have a certificate under the Suitors Fund Act for the costs of the appeal.
CATCHWORDS: TORTS – MEDICAL NEGLIGENCE – FAILURE TO WARN – EXTENSION OF TIME FOR SERVICE – EXPIRATION OF LIMITATION PERIOD - PROCEDURE – STATEMENT OF CLAIM – EXTENSION OF TIME FOR SERVICE – EXPIRATION OF LIMITATION PERIOD – EXERCISE OF DISCRETION
LEGISLATION CITED: Suitors Fund Act Uniform Civil Procedure Act
Franklin House Ltd v ANI Corporation Ltd (2/11/94 Windeyer J unreported) CASES CITED: Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597 Tolcher v Gordon [2005] NSWCA 135, 53 ACSR 442
PARTIES: Dr Malcolm Pell - Appellant Lynda Maree Hodges - Respondent
FILE NUMBER(S): CA 40423/06
COUNSEL: G. Curtin and D. Jenkins - Appellant M. Cranitch SC and B. Bradley - Respondent
SOLICITORS: Ebsworth & Ebsworth, Sydney - Appellant Commins Hendriks, Wagga Wagga - Respondent
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): SC 20263/04
LOWER COURT JUDICIAL OFFICER: Latham J
LOWER COURT DATE OF DECISION: 22/06/2007
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40423/06
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