Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Gilmore v Waugh [2012] NSWCA 263
• Hearing dates: 19 June 2012
• Decision date: 24 August 2012
• Before: Campbell JA at [1]; Macfarlan JA at [2]; Meagher JA at [78]

Decision

Application for leave to appeal dismissed with costs.

[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: LIMITATION OF ACTIONS - medical negligence - proceedings against general practitioner - extensions of time sought to join two specialists (the respondents) - failure to show viable causes of action and adequately explain delay - whether "just and reasonable" to extend time - whether applicant satisfied gateway provisions under Limitations Act 1969 (NSW) ss 60E(1) and 60I - no error by primary judge in refusing extensions
• Legislation Cited: Civil Liability Amendment (Personal Responsibility) Act 2002; Limitation Act 1969
• Cases Cited: Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56; Harris v Commercial Minerals Ltd [1996] HCA 49; 186 CLR 1; Rutter v State of NSW [2005] NSWCA 231; Warren v Coombes [1979] HCA 9; 142 CLR 531; Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497; Yu v Speirs [2001] NSWCA 373
• Category: Principal judgment
• Parties: Peter Hugh Walter Gilmore (Applicant/Appellant); David Waugh (First Respondent); Gavin Barr (Second Respondent)
• Representation: Counsel: R Sheldon SC/P Knowles (Applicant/Appellant); S R Donaldson SC/G B Evans (Respondents); Solicitors: Stacks Goudkamp (Applicant/Appellant); TressCox Lawyers (Respondents)
• File Number(s): CA 2005/269136

Decision under appeal

• Citation: Gilmore v Quittner [2011] NSWSC 809
• Date of Decision: 2011-08-02 00:00:00
• Before: Hall J
• File Number(s): SC 2005/269136

Judgment

1 CAMPBELL JA: I agree with Macfarlan JA.

2 MACFARLAN JA:

SUMMARY OF CASE AND CONCLUSIONS

3 On 23 March 2005 Mr Peter Gilmore commenced proceedings in the Professional Negligence List of the Supreme Court against his former general medical practitioner, Dr George Quittner, claiming damages for negligence. Mr Gilmore alleged that on a number of occasions between early 1993 and December 1998 Dr Quittner negligently failed to arrange for Mr Gilmore to be tested for the Hepatitis C Virus ("HCV"). Mr Gilmore alleged that he had HCV from at least early 1993, that that fact was not ascertained until August 2001 and that as a result of Dr Quittner's negligence he suffered significant harm, including permanent kidney damage resulting in chronic renal impairment.

4 On 3 April 2009 Mr Gilmore filed a Notice of Motion in the proceedings against Dr Quittner seeking orders under the Limitation Act 1969 extending the period for institution of proceedings against Dr David Waugh and Dr Gavin Barr to permit their joinder as second and third defendants to the proceedings.

5 Dr Waugh is a consultant nephrologist to whom Mr Gilmore was referred by Dr Quittner in early 2001. Mr Gilmore claims that Dr Waugh negligently failed to arrange for him to be tested for HCV in March or April 2001 with the same consequences as those alleged to have flowed from the negligence of Dr Quittner.

6 In addition to seeking the extension referred to in [4] above, on 5 November 2009 Mr Gilmore commenced proceedings in the Professional Negligence List against Dr Barr, a consultant gastroenterologist, claiming damages for negligence. He alleged that in November 2001 Dr Barr, to whom Mr Gilmore had also been referred by Dr Quittner, negligently failed inter alia to treat Mr Gilmore for HCV. The injuries that were alleged to have resulted were the same as those alleged to have flowed from Dr Quittner's negligence.

7 By judgment of 2 August 2011 Hall J, sitting in the Common Law Division of the Court, rejected Mr Gilmore's applications for an extension of time holding, in essence, that Mr Gilmore had not shown that he had an arguable cause of action against Dr Waugh or Dr Barr and that he had not demonstrated that he had any "proper excuse or justification for the very substantial delay that ... occurred before the application was made" (Judgment [289]).

8 Mr Gilmore now seeks leave to appeal from Hall J's decision. That application has been heard concurrently with the hearing of the appeal that would lie if leave to appeal were granted.

9 For the reasons given below, I have concluded that the prospects of claims against Dr Waugh and Dr Barr succeeding, if time were extended, are highly doubtful ([62] and [72] below) and Mr Gilmore has not adequately explained his delay in seeking extensions of time to bring proceedings ([65] and [74] - [76] below). In these circumstances I do not consider that the primary judge erred in declining to grant extensions of time. As appeals by Mr Gilmore would be bound to fail, leave to appeal should be refused.

FACTUAL CIRCUMSTANCES

Referral to Dr Waugh

10 On Dr Quittner's referral, Mr Gilmore consulted Dr Waugh on 1 March 2001 in relation to kidney problems that he was experiencing. Dr Waugh recommended a renal biopsy to confirm his suspicion of IgA nephropathy (a form of inflammation of the glomeruli of the kidney). Dr Waugh's report of the same date to Dr Quittner included the following:

"I suspect that [the applicant] may well have an associated viral illness and possibly was over-training [for sport]. I am also not clear as to the cause of his persistent but fluctuating levels of liver enzymes.

I would suggest an ultrasound of his abdomen to look at liver, spleen and kidneys. I would also like to screen again for Hepatitis B and C as well as toxoplasma, CMV and EBV. To assess his renal function more accurately a formal creatinine clearance should be performed.

A repeat haemoglobin would also be worthwhile but I think should be delayed for another couple of weeks to give him a chance to get over a putative viral infection. I have arranged to see him again after those tests".

11 Dr Waugh wrote to Dr Quittner on 12 March 2001 saying that Mr Gilmore had come to see him that day "with his ultrasound" and that a renal biopsy had been arranged for 14 March 2001.

12 As a result of the biopsy on 14 March 2001, Mr Gilmore suffered a severe renal haemorrhage.

13 On 24 April 2001 Dr Waugh reported that, upon the basis of the renal biopsy and a bone marrow report, Dr Jenny Turner, a lymphoma expert consulted by Dr Waugh, considered that there was "small lymphocytic lymphoma of a low grade nature" and recommended "a wait and see approach". The biopsy confirmed Dr Waugh's diagnosis of nephropathy (although IgM, rather than IgA).

14 On 3 May 2001 Dr Waugh reported to Dr Quittner that on 1 May 2001 he had had "a long discussion [with Mr Gilmore] about all of his results". Dr Waugh advised that certain steps be taken to monitor Mr Gilmore's "medical problems", including a creatinine clearance every six months.

15 Mr Gilmore did not consult Dr Waugh further. In fact he sought legal advice in mid-2001 as to whether he had any recourse against Dr Waugh for his conduct of the renal biopsy which led to the severe haemorrhage.

16 On 6 November 2001 Dr Barr forwarded to Dr Waugh a copy of Dr Barr's letter of that date to Dr Quittner and asked Dr Waugh whether he had had Mr Gilmore tested for HCV. Dr Waugh's response dated 15 November 2001 included the following:

"When I first saw Peter he did have some mild abnormalities of liver function tests and I thought in fact I had ordered a Hepatitis B and C but cannot find any documentation of this".

17 There was in evidence a form of request signed by Dr Waugh for Mr Gilmore to be tested for HCV which the Court was informed was produced by a pathologist used by Dr Waugh. However, that request was not acted upon and there was no other evidence of advertence by Dr Waugh at any time after 1 March 2001 to the HCV testing of Dr Gilmore that Dr Waugh had reported on that day should occur.

Referral to Dr Barr

18 The fact that Mr Gilmore was infected with HCV was ascertained in August 2001 when Mr Gilmore had a blood test for routine insurance purposes.

19 On Dr Quittner's referral, Mr Gilmore consulted Dr Barr on 6 November 2001 in relation to his HCV. Mr Gilmore's evidence about the consultation included the following:

"20. I recall Dr Barr saying something to the effect of:

'HCV is a virus that slowly attacks the liver and has long term consequences for the liver and other organs. It is treated with interferon.'

He did not tell me specifically about any potential connection with kidney disease or lymphoma. He continued:

'You would need to have a liver biopsy to commence interferon, but interferon can make patients depressed so we will treat it on a non-urgent basis. I think you are already generally depressed from your experiences and interferon may be dangerous for you at this time. Given your previous biopsy experience it may be possible to avoid having another one on psychological grounds. I will look into that and contact Dr Quittner about it.'

21. I understood that I would be following up with Drs Waugh and Barr after seeing Dr Quittner. However, I did not hear back from either Dr Waugh or Dr Barr either directly or through Dr Quittner. Eventually, in April 2002, Dr Quittner contacted me about following up with Drs Waugh and Barr but by then I felt disillusioned by the lack of contact from Drs Waugh and Barr. I asked Dr Quittner to instead refer me to doctors at St Vincent's Hospital, Darlinghurst" (affidavit of 9 September 2010).

20 In his report to Dr Quittner of 6 November 2001, Dr Barr said that he had arranged further tests and continued:

"Clearly, Peter will not want to have a liver biopsy to further assess his problem [because of the difficulty he had with his kidney biopsy earlier in the year] and without it treatment for Hep C will be difficult to arrange for him. In any event, in view of his emotional disposition at present I don't feel that the time is right to introduce anti-viral therapy, particularly as Interferon can cause emotional lability and depression.

I shall be in touch again when he returns for review following his tests".

21 As indicated by Mr Gilmore's evidence quoted in [19] above, Dr Barr had no further involvement with Mr Gilmore.

Mr Gilmore's subsequent medical history

22 In mid-2002 Dr Quittner referred Mr Gilmore to Dr Mark Penny, a nephrologist who continues to treat Mr Gilmore. Mr Gilmore gave evidence that Dr Penny told him in 2002 that because Dr Barr was a gastroenterologist, Dr Penny would be guided by Dr Barr in relation to his treatment of Mr Gilmore's HCV.

23 In early 2003 Mr Gilmore was diagnosed with Non-Hodgkin's Lymphoma ("NHL") for which he received chemotherapy. That treatment was successful but his kidney function deteriorated in late 2003. He was then advised that he had a form of kidney disease caused by his HCV and that treatment of the former depended on treatment of the latter. His subsequent HCV treatment was successful.

24 In his affidavit of 9 September 2010 Mr Gilmore said that he was free of HCV and NHL but suffered from "intractable hypertensive illness as a result of the permanent kidney damage", leading to "a myriad of health problems which have impacted severely on my life and work".

Mr Gilmore's legal proceedings

25 Mr Gilmore gave evidence that by mid-2004 he realised, as a result of advice from Dr Penny, that he had had HCV for many years and that Dr Quittner should have had him tested for HCV after he came under his care in 1993.

26 In 2004, on the referral of Dr Penny, Mr Gilmore consulted Professor Ronald Penny, a nephrologist. In a report dated 30 July 2004, Professor Penny provided his opinion regarding Mr Gilmore's likely medical condition if his HCV had been diagnosed in 1993 (by or at the instance of his then general practitioner, Dr Quittner). Professor Penny advised that if the HCV had been diagnosed in 1993 and "within a year or two [Mr Gilmore had] undergone treatment which was available", he probably would not have developed the renal disease that he did. He also said that it was possible that he may not have contracted NHL, but Professor Penny wished to do more research on that possibility.

27 In August 2004 Mr Gilmore engaged Laurence & Laurence solicitors to provide advice on possible negligence on the part of Dr Quittner. Mr Kevin Connor of counsel was briefed in this regard. As a result, the proceedings to which I referred in [3] above were commenced against Dr Quittner on 23 March 2005.

28 In July 2005 Mr Gilmore instructed a new solicitor, Mr Arthur Fogarty of Lamrocks, who was retained until October 2006. Mr Gilmore's affidavit of 9 September 2010 included the following:

"During Lamrocks' conduct of the matter, neither Mr Fogarty nor Mr Connor nor anyone else advised me that I had a potential claim against Drs Waugh and/or Barr. I spoke to Mr Fogarty several times about Dr Waugh's failure to have me tested and Dr Waugh's apparent belief that I had been tested for HCV prior to 1 March 2001. On each such occasion, Mr Fogarty advised that, because I had had HCV since the 1980s, the damage had already been done, and that I therefore had no actionable claim against Dr Waugh".

29 On 4 April 2006 Dr Penny provided a lengthy report (which Mr Gilmore said he did not see until December 2006) on Mr Gilmore's renal disease, concluding with his view that if Mr Gilmore's HCV had been treated in the early 1990s his renal disease would have resolved or remained only of a mild form. Dr Penny added:

"Regarding if the hepatitis C had been successfully treated at later time points throughout the 1990s, my opinion is that successful treatment at any time up to late 2003 (before which time Mr Gilmore had maintained stable renal function with only mild renal disease) the course, prognosis, and therapy of his renal disease would be the same as if his hepatitis C had been successfully treated in the early 1990s".

30 An email dated 2 May 2006 from Ms Lynn Cunningham, apparently a lawyer assisting Mr Fogarty, records an assertion made by Mr Gilmore on that day that Dr Waugh had been negligent in not arranging an HCV test. Ms Cunningham's response to Mr Gilmore was, inter alia, that "he was already damaged in his kidneys and suffered no damage. Already had [NHL]".

31 In October 2006 Mr Gilmore changed solicitors again, instructing Mr Timothy Benjamin of Benjamin McInnes Lawyers.

32 In his affidavit of 9 September 2010 Mr Gilmore said that in early December 2006 Mr Benjamin drew his attention to the view of Dr Penny (stated in his report of 4 April 2006 and quoted in [29] above) that if Mr Gilmore's HCV had been treated at any time up to the end of 2003, his severe permanent kidney damage probably would not have occurred. This led to a conference in February 2007 with Mr Connor who, according to Mr Gilmore, said that although Dr Waugh appeared to have been negligent, "it was unclear how much damage this had caused [Mr Gilmore] since [he] was diagnosed with HCV about six months later in any event". Mr Gilmore then deposed that:

"Over the course of the next two years, Mr Benjamin and I discussed Dr Waugh several times. Mr Benjamin said that he was uncertain whether I could or should sue Dr Waugh since it was difficult to see what damage he was responsible for (given I was tested and diagnosed with HCV in August 2001, some 5 months after I was seen and treated by Dr Waugh). He told me I could suffer a costs penalty if it was found that no compensable damage or only negligible compensable damage was caused by him".

33 In his affidavit Mr Gilmore said the following concerning Dr Barr:

"In relation to my proposed action against Dr Barr, the same considerations applied [as] in relation to Dr Waugh - namely my belief that the damage had already been done by the time I saw him - but there was an additional component. By the time I saw Dr Barr, it had already been discovered that I had Hepatitis C. Until I read Dr Vickers' report of 26 August 2008, I had not realised that Dr Barr may have been negligent in not immediately referring me for treatment for Hepatitis C. At paragraph 4(c), Dr Vickers states that one does not withhold treatment because the patient may be emotionally depressed" ([44]).

34 Dr Christopher Vickers, to whom Mr Gilmore there referred, had been asked the following question:

"We understand interferon [medication for HCV] can cause depression. Is it common to deny therapy to someone because they report feeling unhappy and frustrated at the commencement of therapy, or is the preferable course to treat, and carefully monitor with appropriate psychological and psychiatric reviews?"

To which Dr Vickers replied in his report of 26 August 2008:

"No. One does not deny treatment in these circumstances but the patient may require more support and counselling during the treatment than others. Prophylactic low dose anti-depressant medication is often prescribed to these patients. Those who have more florid signs of depression or a past history of clinical depression would normally have a psychiatric consultation in the first instance".

35 From reports of Professor John Levi of 27 May 2008 and Professor Andrew Grulich dated 3 November 2008, Mr Gilmore said that he formed the view that his NHL was probably causally linked to his HCV and that Dr Waugh's apparent negligence had potentially caused him far greater damage than previously thought. In November 2008 he also came to believe that any judgment against Dr Quittner was unlikely to be satisfied.

36 In March 2009, in response to an inquiry from Mr Benjamin, Dr Waugh stated that he had no record or recollection that Dr Quittner had told him that Mr Gilmore had been tested for HCV prior to 1 March 2001 (although Dr Waugh's letter of 1 March 2001 said that he would like Mr Gilmore to be screened for HCV "again" - see [10] above). Mr Gilmore expressed surprise at Dr Waugh's response because he had expected him to say that Dr Quittner had told him that Mr Gilmore had been tested.

37 Mr Gilmore summarised his reasons for not proceeding earlier against Drs Waugh and Barr as follows:

"In summary, from my perspective, the reasons for the delay in proceeding against Dr Waugh and Dr Barr are:

a) initial legal advice received that firstly I had no claim against anyone other than Dr Quittner because the damage had already been done by 2001

b) legal advice casting doubt on whether Dr Waugh was responsible for my permanent damage

c) my belief that Dr Quittner had told Dr Waugh that I had previously been tested for HCV

d) the need to establish a causative link between HCV and NHL

e) investigations into joining the insurers of Dr Quittner

f) my personal difficulties, including

i my health problems, all of which I say have been caused or contributed to by the negligence of Drs Quittner, Waugh and/or Barr,

ii the effect of the medications I have to take to stay alive causing an inability to mentally focus on things,

iii the necessity to earn income to try to meet my financial commitments and support my family".

38 Mr Benjamin, who was not cross-examined, gave evidence concerning the period in which he acted for Mr Gilmore that supported Mr Gilmore's evidence. Mr Benjamin summarised the reasons for the delay in proceeding against Drs Waugh and Barr as follows:

"In summary the reasons for the delay in proceeding against Drs Waugh and Barr are:

(a) The Plaintiff and I were not aware that there was any link between their alleged negligence and the Plaintiff's damage until we received Dr Penny's report of 3 April 2006, which stated that contrary to our then held belief that the damage to the Plaintiff's kidneys had already been done, treatment of the HCV at any time up to late 2003 would have prevented the permanent damage

(b) Although Dr Waugh appeared to have been negligent in not testing for HCV, there were doubts as to the damage that had [been] caused given the Plaintiff's HCV had been discovered some 5 months later after which he had been referred to a gastroenterologist

(c) We did not know Dr Barr may have failed in his duty of care until we received Dr Vickers' report of 28 August 2008

(d) Plaintiff's unstable condition

(e) establishing the link between the Plaintiff's HCV and NHL

(f) investigating the joining of the insurers of Dr Quittner

(g) difficulty in obtaining instructions from the Plaintiff due to his condition and the drugs he is forced to take".

MR GILMORE'S CROSS-EXAMINATION

39 Mr Gilmore was cross-examined strenuously in relation to the history recorded in a report dated 23 October 2005 of Dr Peter Morse, to whom Mr Gilmore had been referred for a psychiatric report and opinion "in relation to [Mr Gilmore's] claim for damages for injuries he received as a result of his general practitioner failing to carry out tests over a number of years for Hepatitis C".

40 Dr Morse recorded that Mr Gilmore told him that:

"[H]e had around 26 blood tests and he was referred to renal and ... thoracic physicians. He said he found out later that both these specialists had recommended to his GP that he perform Hepatitis C tests".

41 Whilst the reference to the renal physician was clearly to Dr Waugh, the identity of the thoracic physician mentioned by Mr Gilmore remains unclear. Mr Gilmore may have intended to refer to Dr Barr who is in fact a gastroenterologist. Alternatively he may have intended to refer to Dr Janet Rimmer, a thoracic physician to whom he was referred by Dr Quittner at one stage. In any event, it is clear from the opening words of Dr Morse's report quoted in [39] above, and what followed, that Mr Gilmore's complaint, at least at the time he saw Dr Morse, was against Dr Quittner and not against Drs Waugh or Barr. Nevertheless, questions put to Mr Gilmore in cross-examination implied that in 2005 Mr Gilmore had complained to Dr Morse not only about Dr Quittner's conduct but also that of Drs Waugh and Barr. As a copy of Dr Morse's report was not put before Mr Gilmore during his cross-examination and this proposition was neither squarely put to Mr Gilmore nor justified by reference to Dr Morse's report, I do not consider that the cross-examination adversely affected Mr Gilmore's case by demonstrating that he had earlier knowledge of the possibility of claiming against Drs Waugh and Barr than that which he described in his affidavit evidence.

THE STATUTORY PROVISIONS

42 The application to extend time was argued on appeal upon the assumption that if there was a breach of duty by Dr Waugh or Dr Barr, Mr Gilmore suffered damage, and his cause of action therefore accrued, immediately after the alleged negligence occurred. In the case of Dr Waugh that was in March - April 2001 and in the case of Dr Barr in or about November 2001.

43 As Mr Gilmore's asserted causes of action arose after 1 September 1990 but prior to the commencement of the Civil Liability Amendment (Personal Responsibility) Act 2002, the applicable limitation period under the Limitation Act 1969 was a period of three years (s 18A(2)). Under s 60C(2) a Court had power to extend that period for up to a further five years if it decided that it was "just and reasonable" to do so. In exercising that power, regard had to be had to s 60E(1) which was as follows:

"60E Matters to be considered by court

(1) In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:

(a) the length of and reasons for the delay,

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available,

(c) the time at which the injury became known to the plaintiff,

(d) the time at which the nature and extent of the injury became known to the plaintiff,

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission,

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action,

(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received,

(h) the extent of the plaintiff's injury or loss".

44 Section 60G(2) empowered the court to further extend the period for Mr Gilmore to commence proceedings, provided, again, that the court considered it "just and reasonable" to do so. Its power was further limited by s 60I(1) which was as follows:

"60I Matters to be considered by court

(1) A court may not make an order under section 60G or 60H unless it is satisfied that:

(a) the plaintiff:

(i) did not know that personal injury had been suffered, or

(ii) was unaware of the nature or extent of personal injury suffered, or

(iii) was unaware of the connection between the personal injury and the defendant's act or omission,

at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and

(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)-(iii)".

45 Having been filed on 5 November 2009, the Statement of Claim commencing proceedings against Dr Barr was within time if the Court makes an order under s 60C(2) extending the initial period of three years by five years to a total of eight years. As proceedings were not commenced against Dr Waugh within eight years of the claimed cause of action against him arising in 2001, Mr Gilmore can only pursue proceedings against Dr Waugh if he obtains an order under s 60G(2) extending time to a date after the date of this judgment. To obtain such an order he needs to surmount the hurdle imposed by s 60I. For the purposes of provisions such as s 60E(1) and 60I(1)(a), an applicant's knowledge or awareness is his or her actual knowledge or awareness without regard to the reasonableness of that awareness or any concept of constructive knowledge (Harris v Commercial Minerals Ltd [1996] HCA 49; 186 CLR 1 at 9 - 10). However an assessment of the reasonableness of an applicant's conduct may be relevant to the Court's determination of whether it is "just and reasonable" to extend time and s 60l(1)(b) expressly renders constructive knowledge relevant. To satisfy s 60l(1)(b) it is necessary for Mr Gilmore to demonstrate that his application filed on 3 April 2009 for an extension of time to commence proceedings against Dr Waugh was made within three years after he became aware (or ought to have become aware) of all three matters listed in s 60l(a)(i) - (iii). In other words, Mr Gilmore cannot have become aware (actually or constructively) of all three of the matters prior to 3 April 2006.

46 To satisfy the Court that it is "just and reasonable" to extend time, an applicant must demonstrate that he has a worthwhile cause of action against the prospective defendant. Different descriptions have been given of an applicant's burden in this respect. For example in Yu v Speirs [2001] NSWCA 373, Rolfe AJA (with whom Beazley and Ipp JJA agreed) referred to the need for an applicant to demonstrate that he or she "will have a reasonable prospect of success on the ultimate hearing" (at [17]). In Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 at 520 Priestley JA spoke of the need for "sufficient evidence to show that [the applicant] had a viable cause of action". In Rutter v State of New South Wales [2005] NSWCA 231 at [31], McColl JA (with the concurrence of Handley JA and Hunt AJA) said that:

"the issue the appellant was required to address was not whether he could prove his cause of action in the sense for which proof would be required at a final trial but, rather, that it would not be futile to extend time because, for example, an element of his cause of action was incapable of being established: cf Salido v Nominal Defendant [1993] 32 NSWLR 524 at 528 per Gleeson CJ".

47 It is unnecessary to choose between these different modes of expression as the circumstances of each case will vary and ultimately the Court's role is to determine whether it is "just and reasonable" that time be extended. What is required to be established in relation to an applicant's cause of action must be considered alongside other relevant factors. For example, if there is a short and well-explained delay the Court may consider that time should be extended even if the applicant's prospects of success on his or her cause of action are only limited. The position may be otherwise if the delay is long and its justification weak.

THE JUDGMENT AT FIRST INSTANCE

Delay by Mr Gilmore

48 In dealing with Mr Gilmore's knowledge for the purposes of s 60E and, in the case of Dr Waugh, s 60I, the primary judge concluded as follows:

"[257] The evidence ... establishes that, by March 2005, the applicant knew of the fact of the diagnosis of his Hepatitis C, the alleged 'damage' caused by the 'injury', the connection (as alleged) between omission to treat Hepatitis C and the alleged consequences of failure to treat, including a lymphoma. The failure to treat a known condition of Hepatitis C and the consequences of a failure to treat are all the elements and circumstances pleaded against Dr Waugh and Dr Barr. Knowledge of all these matters were [sic] known by 23 March 2005.

[258] ... The allegations of failure to arrange for a Hepatitis C serology, to advise the applicant to have such serology and refer to a hepatologist or gastroenterologist are the same as alleged against Dr Quittner.

[259] There is an additional particular of negligence of a failure to perform a liver biopsy but the 'damages' are the same - that serology and biopsy '... would have revealed that the plaintiff was infected with Hepatitis C'.

[260] Accordingly, the facts concerning the contraction of Hepatitis C and knowledge of the causal connection to 'damage' and the type of 'damage' were all known by the applicant by 23 March 2005."

49 The primary judge had earlier concluded that there was no material difference between the claims against Drs Waugh and Barr on the one hand and that against Dr Quittner on the other (Judgment [243]).

50 His Honour considered that Mr Gilmore possessed the relevant knowledge at least by 23 March 2005, when he commenced proceedings against Dr Quittner, and that he had not adequately explained why his Notice of Motion for extensions of time was not filed until 3 April 2009. His Honour considered that the facts concerning the nature and extent of his injuries and their connection to the alleged negligence of Drs Waugh and Barr "were all within Mr Gilmore's knowledge and relied upon to make allegations against Dr Quittner in the proceedings instituted against him ... which are now almost four years on" (Judgment [261]).

51 The primary judge added:

"[262] I do not consider that the evidence establishes that the applicant has satisfied the statutory criteria under either s 60E(1) or s 60I(1). In particular, on the evidence no attempt was or has been made to obtain medical evidence (a) defining or establishing the scope of duty or (b) that addresses the issues of breach of duty in relation to either Dr Waugh or Dr Barr.

[263] The matters that prompted attention to the possibility of commencing proceedings against Dr Waugh and Dr Barr arose out of a concern that difficulty may be encountered in recovery under a judgment, if entered against Dr Quittner (paras [254] and [255] above). Up until 2008, as indicated in the above discussion, no attempt had been made to fully investigate the abovementioned issues as to Dr Waugh or Dr Barr and no satisfactory explanation has been provided for such failure. The delay and associated matters to which I have referred above, in my opinion, establish a failure by the applicant to discharge the onus on him in relation to the statutory criteria discussed above."

52 His Honour also considered it significant that "Dr Penny did not embark upon treatment or recommend treatment of the Hepatitis C in the years 2002 and 2003 and no error is established in this respect" (Judgment [270]).

53 Accordingly he dismissed Mr Gilmore's application for extensions of time.

Whether viable causes of action

54 The primary judge concluded that Mr Gilmore did not establish that he had viable causes of action against Drs Waugh and Barr and concluded that this was a further and independent basis upon which it was not "just and reasonable" to grant the extensions of time that Mr Gilmore sought (Judgment [266] and [287]).

55 His Honour's conclusions were expressed as follows:

"[284] There is, accordingly, no expert evidence that supports the proposition that any specialist medical practitioner should or would have taken any approach other than that pursued, initially, by Dr Waugh and then by Dr Barr and Dr Penny.

[285] The evidence referred to above constitutes, in my assessment, a strong affirmative basis for the proposition that Dr Waugh and Dr Barr competently discharged their respective duties of care in their management of the applicant in the period of months that they were involved in his case".

RESOLUTION OF THE APPLICATION FOR LEAVE TO APPEAL IN RELATION TO DR WAUGH

56 A decision as to whether it is "just and reasonable" to extend a limitation period is not discretionary. In determining a challenge to such a decision an appellate court must give respect and weight to the conclusion of the primary judge but, having reached its own conclusion, must give effect to it (Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56 at [91] - [111] applying Warren v Coombes [1979] HCA 9; 142 CLR 531).

57 The primary judge cited Mr Gilmore's delay and the absence of evidence of a viable cause of action as independent reasons for refusing an extension of time to bring proceedings against Dr Waugh. For reasons that I give below, I disagree with the primary judge's conclusion as to the time at which Mr Gilmore became aware of a critical matter concerning potential proceedings against Dr Waugh. It is therefore necessary for this Court to consider afresh whether Mr Gilmore adequately explained his delay in seeking an extension of time.

58 Determination of the date upon which Mr Gilmore acquired the requisite knowledge was relevant, so far as his prospective action against Dr Waugh is concerned, not only to the question of whether it was "just and reasonable" to extend time under s 60G but also to the satisfaction of the pre-conditions specified in s 60I (see [44] above). In light of his conclusions as to when Mr Gilmore acquired the relevant knowledge, the primary judge understandably concluded that the pre-conditions in s 60I(1) had not been satisfied.

59 For reasons also set out below, I agree with the primary judge's conclusion that Mr Gilmore did not establish that he had a sufficiently arguable cause of action against Dr Waugh to warrant an extension of time to proceed against him.

60 I deal first with this issue.

Cause of action against Dr Waugh

61 Mr Gilmore complained that Dr Waugh did not ensure that he was tested for HCV in or about March 2001, with the result that it was not discovered until August 2001. Mr Gilmore claims that if this delay had not occurred, he would not have developed the severe kidney disease from which he currently suffers, because the HCV would have been treated sufficiently early to avoid permanent kidney damage.

62 There are however a number of difficulties concerning this cause of action which in my view render its prospects of success highly doubtful:

(a) There is no evidence in these proceedings that Dr Waugh departed from common medical practice, or was negligent for any other reason, in failing to ensure that Mr Gilmore was tested for HCV. The fact that Dr Waugh said in his letter to Dr Quittner of 1 March 2001 that he would "like" Mr Gilmore to be screened for HCV is not in my view evidence of any significant weight that a nephrologist in Dr Waugh's position would have been negligent in failing to ensure that such a test was carried out at that time. It is common knowledge that medical practitioners frequently order tests as precautionary measures and not as a form of compliance with minimum professional standards.

(b) Dr Waugh's letter of 1 March 2001 referred to Mr Gilmore being screened "again" for HCV. Although Dr Waugh could not recall in 2009 whether he was told in 2001 that Mr Gilmore had previously been tested for HCV, his letter of 1 March 2001 suggests that he was. Without expert evidence it would be difficult for a court to conclude that Dr Waugh was negligent in not having Mr Gilmore re-tested. The Court was not given any reason to think that such evidence would be available at a final hearing.

(c) There would be a real question at a final hearing of proceedings against Dr Waugh whether the obligation lay on Dr Quittner, Mr Gilmore, or Dr Waugh to follow up Dr Waugh's recommendation for HCV screening. Dr Waugh signed a form of request for such a test to be undertaken (see [17] above) but one can only speculate as to why the test was not undertaken.

(d) Mr Gilmore's HCV was discovered in August 2001, only about five months after he saw Dr Waugh. Whether events relating to Mr Gilmore's treatment would have occurred in any significantly different fashion if his HCV had been discovered five months earlier is also a matter of speculation. There is no expert evidence before the Court that attempts to identify the likely course of events and to explain, for example, whether Mr Gilmore's renal biopsy would still have occurred on 14 March 2001 if his HCV had been discovered by then. It is relevant in this respect that, as Dr Waugh was a nephrologist and HCV is a condition primarily connected with the liver, Dr Waugh would not have treated Mr Gilmore himself but would have referred him to a hepatologist (liver specialist) or a gastroenterologist such as Dr Barr.

Delay by Mr Gilmore

63 Fundamental to the primary judge's conclusion on delay was his finding that there was no material difference between the claims against Drs Waugh and Quittner, leading him to conclude that Mr Gilmore possessed sufficient knowledge to proceed against Dr Waugh by at least 23 March 2005 when he commenced proceedings against Dr Quittner (see [49] and [50] above).

64 I do not agree that the claims against Drs Waugh and Quittner were materially the same. Significantly, they related to allegedly negligent conduct occurring at different times: early 1993 to December 1998 in the case of Dr Quittner and early 2001 in the case of Dr Waugh (see [3] and [5] above). This difference in timing gave rise to a potential difference in the causative potency of the conduct. Mr Gilmore readily accepted that a failure to discover and treat his HCV in the period 1993 to 1998 might have prevented the development by about 2003 of his serious kidney disease but, perhaps understandably, did not jump to the conclusion that such a failure in 2001 might have had that effect. Indeed, Mr Gilmore's unchallenged evidence was that he was repeatedly told by his solicitors that by the time Dr Waugh was consulted in 2001 "the damage had already been done" (see [28] and [30] above). It was not until December 2006 that Mr Gilmore had reason to believe that Dr Waugh's conduct might have had some relevant causative effect (see [32] above).

65 I therefore find that Mr Gilmore's knowledge was relevantly complete only by December 2006, rather than the date of 23 March 2005 found by the primary judge. However I share his Honour's view that Mr Gilmore did not adequately explain his delay (Judgment [289]), albeit that in my view the relevant date is December 2006 rather than March 2005.

66 Two and a quarter years passed before Mr Gilmore filed his motion seeking an extension of time. I referred in [35] and [36] above to three circumstances occurring in that period that Mr Gilmore proffered as reasons for his delay: first, his ascertainment of a probable causal link between his HCV and his NHL; secondly, his realisation that a judgment against Dr Quittner was unlikely to be satisfied; and thirdly, the receipt of Dr Waugh's letter stating that he did not have any record or recollection of being told that Mr Gilmore had already been screened for HCV prior to March 2001. None of these matters in my view excuses that delay. Mr Gilmore was aware by December 2006 of the circumstances that would have justified a claim by him against Dr Waugh, and over five years had passed since their consultation. In these circumstances, the further delay of more than two years was in my view unreasonable.

67 When account is also taken of the weakness of Mr Gilmore's asserted cause of action, it is in my opinion clear that the primary judge correctly concluded that it was not "just and reasonable" to grant Mr Gilmore extensions of time under s 60G and s 60I to proceed against Dr Waugh.

68 Finally, although unsuccessful for other reasons, Mr Gilmore's application for extension under s 60G is not defeated by a failure to satisfy the pre-conditions in s 60l(1). They were satisfied because Mr Gilmore was not aware of the connection between his injury and Dr Waugh's alleged negligence (see (iii)) at the expiration of the relevant limitation period, which was three years from March 2001. Similarly, because Mr Gilmore only became aware of that connection in December 2006, he filed his application within the time specified in s 60l(1)(b).

69 As an appeal would for these reasons be bound to fail, I would dismiss Mr Gilmore's application for leave to appeal insofar as it relates to Dr Waugh.

RESOLUTION OF THE APPLICATION FOR LEAVE TO APPEAL IN RELATION TO DR BARR

70 Mr Gilmore filed a statement of claim commencing proceedings against Dr Barr within five years of the expiration of the three year limitation period. Accordingly he requires an extension of time under s 60E (for close to five years), but not a further extension under s 60G. As with Dr Waugh, the questions of whether Mr Gilmore has demonstrated a cause of action with a significant prospect of success and has sufficiently explained his delay are important in determining whether it is "just and reasonable" to grant an extension of time.

Whether a viable cause of action

71 Mr Gilmore's complaint against Dr Barr is, primarily, that when he consulted Dr Barr in December 2001, Dr Barr did not advise him to have his HCV treated immediately, with the consequence that Mr Gilmore continued to have the HCV virus in 2003, resulting in severe and permanent kidney damage. Mr Gilmore also alleges that Dr Barr had an obligation to follow up Mr Gilmore or Dr Quittner to ensure that Mr Gilmore returned to Dr Barr for further advice.

72 In light of the following matters, I do not consider that Mr Gilmore has demonstrated that he has a cause of action against Dr Barr with any significant prospect of success:

(a) Whilst in his report of 26 August 2008, Dr Vickers expressed the view that "[o]ne does not deny treatment" in the circumstances presented to Dr Barr, Dr Vickers did not comment directly on Dr Barr's advice or criticise him for not causing treatment for HCV to be undertaken immediately. Dr Barr had not conclusively rejected interferon treatment for Mr Gilmore's HCV. Rather, according to Mr Gilmore's evidence, he had advised Mr Gilmore that interferon "may be dangerous for you at this time" and that he would consider the position further and consult Dr Quittner (see [19] above). In his report, Dr Barr said that "I don't feel that the time is right to introduce anti-viral therapy ... I shall be in touch again when [Mr Gilmore] returns for review following his tests" (above at [20]).

(b) In proceedings against Dr Barr there would be a real question as to whether Dr Barr had any responsibility to arrange to see Mr Gilmore again. As noted above, Mr Gilmore's evidence was that Dr Barr said that he would contact Dr Quittner but his report indicated that Mr Gilmore was to have tests and return to Dr Barr for a review of them. It is not at all obvious that Dr Barr had any responsibility to do anything before Mr Gilmore presented himself again. Much might turn on the precise words used in late 2001, eight years before the commencement of action against Dr Barr and probably 10 years before that action could reasonably have been expected to come to trial.

73 In neither aspect of his claim has Mr Gilmore demonstrated that there is expert evidence available to him indicating that Dr Barr breached the duty of care owed to him. As I do not regard the breaches as discernable simply by the application of commonsense, without the aid of expert evidence, I consider that Mr Gilmore's prospects of success against Dr Barr, if time were extended, would be poor.

Delay by Mr Gilmore

74 For the reasons given in [63] - [65] above regarding the claim against Dr Waugh, Mr Gilmore was not aware until at least December 2006 of the possible connection between Dr Barr's alleged negligence in not having him treated immediately for HCV and the onset of his severe permanent kidney damage. For the same reasons, the primary judge erred in concluding that the claims against Drs Barr and Quittner were relevantly the same. There was in fact an important difference: in the case of Dr Barr there was no reason until December 2006 for Mr Gilmore to believe that immediate treatment of his HCV, on advice from Dr Barr at that time, would have thwarted the onset of his severe permanent kidney disease.

75 A further factor in relation to the claim against Dr Barr is that it was not until he had received Dr Vickers' report of 26 August 2008 that Mr Gilmore became aware that Dr Barr's failure to recommend immediate treatment of his HCV may have been negligent (see [34] above). Mr Gilmore did not therefore become aware of the elements of his cause of action against Dr Barr until about August 2008. However, in my view, Mr Gilmore has not adequately explained why after becoming aware in December 2006 of Dr Penny's view that treatment of his HCV prior to 2003 would have avoided his serious kidney disease, he did not take earlier steps to obtain advice as to the appropriateness of Dr Barr failing to recommend immediate HCV treatment. The evidence does not suggest that Dr Vickers (whose report questioned Dr Barr's approach) was consulted before July 2008, almost two years later. Even after receipt of Dr Vickers' report it took approximately another six months for Mr Gilmore to file his Motion seeking an extension of time.

76 In my view these matters indicate that, on the question of delay, Mr Gilmore is no better placed in relation to his claim against Dr Barr than he is in relation to his claim against Dr Waugh. Furthermore, as in relation to Dr Waugh, Mr Gilmore's claim against Dr Barr is, in my view, relatively weak. Together these factors indicate that the primary judge did not err in concluding that it was not "just and reasonable" to extend the time for Mr Gilmore to proceed against Dr Barr and leave to appeal should be refused.

ORDERS

77 For the reasons that I have given, the primary judge did not err in refusing to extend the limitation period for Mr Gilmore to proceed against Drs Waugh and Barr. In these circumstances, I propose that his application for leave to appeal be dismissed with costs.

78 MEAGHER JA: I agree with Macfarlan JA.

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Decision last updated: 24 August 2012