Cox v Keys [2012] NSWCA 268

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cox v Keys [2012] NSWCA 268 Hearing dates: 7 August 2012 Decision date: 28 August 2012 Before: McColl JA at [1]; Macfarlan JA at [2] Decision: (1) Grant leave to appeal in relation to the claim against Dr Lees. (2) Otherwise dismiss the application for leave to appeal. (3) Direct that within 14 days of the date of this judgment, the applicant file and serve a Notice of Appeal in the form provided to the Court, limited to the grounds and proposed orders relating to the applicant's claim against Dr Lees. (4) Order that the order of Elkaim DCJ made on 1 September 2011 dismissing the applicant's Notice of Motion be set aside insofar as it related to the applicant's claim against Dr Lees. (5) Allow the appeal in relation to the applicant's claim against Dr Lees. (6) Order that the time for the applicant to file and serve a Statement of Claim against Dr Lees in the form already filed be extended to the date one month from the date of this judgment. (7) Order Dr Lees to pay the applicant's costs of his application for leave to appeal, and appeal, in relation to Dr Lees. (8) Order the applicant to pay the costs of Drs Keys and Yuen of the application for leave to appeal (including the concurrent hearing of the appeal that would have lain if leave had been granted). [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: LIMITATIONS - Limitation Act 1969 ss 58, 60G - applicant seeks extensions of time to bring proceedings against general practitioners and radiologist - whether primary judge erred in refusing to grant extensions sought - whether "just and reasonable" to grant extensions - whether primary judge entitled to take into account that damages likely to be minimal against one practitioner - whether general practitioners would be prejudiced in defending proceedings by absence of clinical notes and inability to recall consultations - whether radiologist would be prejudiced by absence of x-ray request form Legislation Cited: Limitation Act 1969 Supreme Court Act 1970 Cases Cited: Allen v Drayton Coal Pty Ltd [1995] NSWCA 14 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541 Cavanagh v New South Wales [2008] NSWCA 350 Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56 House v R [1936] HCA 40; 55 CLR 499 Sorrenti v Crown Corning Ltd & ACI Operations Pty Ltd (1986) 7 NSWLR 77 Warren v Coombes [1979] HCA 9; 142 CLR 531 Category: Principal judgment Parties: Barry Charles Cox (Applicant/Appellant) John Thomas Keys (First Respondent) Laurence Alfred Lees (Second Respondent) Kwing Wing Yuen (Third Respondent) Representation: Counsel: D Campbell SC/S J Longhurst (Applicant/Appellant) W S Reynolds (First Respondent) J Downing (Second and Third Respondents) Solicitors: RMB Lawyers (Applicant/Appellant) Avant Law Pty Ltd (First Respondent) HWL Ebsworth Lawyers (Second and Third Respondents) File Number(s): CA 2011/166843 Decision under appeal Citation: Cox v Dr Keys & Ors Date of Decision: 2011-09-01 00:00:00 Before: Elkaim SC DCJ File Number(s): DC 2011/166843