Supreme Court New South Wales

• Medium Neutral Citation: Eastbury v Genea Genetics [2014] NSWSC 1793
• Hearing dates: 3 December 2014
• Decision date: 17 December 2014
• Jurisdiction: Common Law
• Before: Hall J

Decision

(1) The limitation period for the causes of action pleaded in the Statement of Claim filed 11 March 2014 be extended to 11 March 2014.

(2) On the costs follow the event rule, costs of the application would ordinarily be awarded in favour of the plaintiffs against the defendant. If the defendant wishes to argue against the making of such an order, a period of seven (7) days is allowed to apply in that respect.

• Catchwords: PERSONAL INJURY - application for an extension of time pursuant to s 60G of the Limitation Act 1969 (NSW) - claim arises from the diagnosis of the plaintiffs' sons as having a full mutation consistent with a diagnoses of Fragile X Syndrome - plaintiffs claim damages for mental harm and claim the defendant laboratory breached its duty of care in failing to test the first plaintiff's carrier status for Fragile X Syndrome - cause of action arguably accrued on the date of birth of each of the plaintiffs' two sons - application for an extension of time on the basis that after becoming aware of their sons' conditions the plaintiffs acted with reasonable expedition and that the extent of any damages awarded is likely to be significant - extension of time granted
• Legislation Cited: Limitation Act 1969; Uniform Civil Procedure Rules 2005
• Cases Cited: Bell v SPC Ltd [1989] VR 170; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Cartledge v E Jopling and Sons Limited [1963] AC 758; Cowie v State Electivity Commission of Victoria [1964] VR 788; McIntosh v Southern Meats Pty Ltd (1997) Aust Torts Reports 81-424; Sydney City Council v Zegarac (1998) 43 NSWLR 195
• Category: Interlocutory applications
• Parties: Leighee Eastbury (First Plaintiff); Philip Eastbury (Second Plaintiff); Genea Genetics (Defendant)
• Representation: Counsel: J Anderson (Plaintiffs); D Lloyd (Defendant); Solicitors: Catherine Henry Partners (Plaintiffs); Kennedys Lawyers (Defendant)
• File Number(s): 2014/74655

Judgment

The Proceedings

1 The first and second plaintiffs are respectively the father and mother of two children, Hayden Eastbury and Jacob Eastbury. Hayden was born on 30 August 2008. Jacob was born on 12 March 2011.

2 The first and second plaintiffs commenced proceedings by way of Statement of Claim filed on 11 March 2014 in the Professional Negligence List in respect of genetic screening performed by the defendant, Genea Genetics (formerly known, inter alia, as Sydney Genetics Pty Ltd), in 1999 ("Genea").

3 Hayden Eastbury was diagnosed in or about May 2012 by a paediatrician, Dr Lynn Banna, with Autism and Global Development Delay. Subsequent test in July 2012 revealed that Hayden had a full mutation sized expansion of "Fragile X", consistent with a diagnosis of Fragile X Syndrome.

4 In or about August 2012, Jacob underwent the same tests and received the same diagnosis.

5 Both children suffer from significant speech and language delays, behavioural and language difficulties and neuro-developmental and physical features of Fragile X Syndrome. The plaintiffs' claim is that it is unlikely that either will be able to live independently as adults.

6 The plaintiffs claim damages upon two separate bases. First, that they have and will continue to suffer economic and non-economic loss. Particulars of the additional costs that have and will be incurred by the plaintiffs in respect of raising, caring for and maintaining the children attributable to their disabilities were to be provided in accordance with the Uniform Civil Procedure Rules 2005.

7 Second, the plaintiffs claim damages by reason of the mental harm they say they have suffered in consequence of the matters pleaded in the Statement of Claim, including those matters referred to in [6]-[8].

8 By Amended Notice of Motion filed pursuant to orders made by Deputy Registrar Kenna on 29 September 2014, the plaintiffs seek an order that the limitation period for the causes of action pleaded in the proceedings be extended until 11 March 2014. The extension sought was said in the course of submissions to relate, in particular, to the second claim referred to in [6] above.

Evidence

9 Relevant factual matters were set out in the affidavits of Leighee Eastbury sworn 11 August 2014 and 17 October 2014.

10 The defendant relied upon the affidavit of Daniela Faggionato, solicitor, sworn 19 September 2014 and the affidavit of Mary Ellen Weaver, Legal Counsel and Company Secretary of Genea, sworn 19 September 2014.

11 The deponents were not cross-examined on their affidavit evidence.

Factual Matters

12 The first plaintiff, Mrs Eastbury, was born on 23 June 1979. Her uncle, Robert Gray, was born on 12 June 1949 and is Mrs Eastbury's father's twin brother. Her uncle was diagnosed with Fragile X Syndrome in 1988, when he was approximately 40 years of age. Mrs Eastbury understands that her uncle has the full mutation of the genetic condition. He needed a carer for his entire life. He has limited expressive language and lives in a nursing home. He is now approximately 65 years of age.

13 Mrs Eastbury stated in her affidavit of 11 August 2014 that she was advised to undergo testing to find out if her father and she herself were carriers of the genetic mutation. Mrs Eastbury stated that she always knew that this was something that she had to do prior to starting a family: at [6].

14 On or about 27 September 1999 she consulted a general practitioner, Dr Ranjana Curtotti, who practiced in Kingston, ACT. She said that she discussed with Dr Curtotti her concerns about being a carrier of Fragile X and requested that she be tested in respect of the same. Dr Curtotti gave her a referral for chromosomal testing (Fragile X).

15 On or about 28 September 1999 she attended Macquarie Pathology Services ("Macquarie Pathology") in Canberra where she handed a staff member the referral and blood samples were taken.

16 On or about 7 October 1999 she was informed, via telephone from Kingston Family Surgery, that the result of the testing was negative. She said no hard copy of the test result was given to her at that time.

17 She and the second plaintiff, Philip Eastbury, met in 2002 and were married on 4 March 2006. She said that, on the understanding that she was not a carrier of Fragile X, she and her husband started a family.

18 Her first pregnancy with her son Hayden was normal. He was born, as stated above, on 30 August 2008. Her second pregnancy with their son Jacob was also normal. He, as also noted above, was born on 12 March 2011.

19 Mrs Eastbury stated that on or about August 2010, when Hayden was about two years old, she noticed that he was having difficulties with his speech compared to other children of the same age. She said she was not concerned at that stage because she understood that children develop differently. However, she soon realised that his gross and fine motor skills were not developing in accordance with developmental milestones.

20 In September 2010, she took Hayden to a speech pathologist who informed her of her concern that there may be underlying factors to Hayden's problems.

21 As stated above, in about May 2012 Hayden was diagnosed with autism and global development delay by Dr Lynn Banna, paediatrician.

22 In August 2012, following multiple blood tests of Hayden, including a DNA test for Fragile X Syndrome, Mrs Eastbury said she learnt the results of the blood test which stated that Hayden has a full mutation sized expansion of Fragile X consistent with a diagnosis of Fragile X Syndrome.

23 Following Hayden's positive result, Mrs Eastbury made efforts to obtain a copy of her previous test results carried out in 1999. She made contact with Genea and obtained a copy of her test results dated 7 October 1999; a copy of which is Annexure D to her affidavit 11 August 2014.

24 On or about 7 August 2012 she requested her general practitioner to refer her and Jacob for genetic testing for Fragile X.

25 In due course, Jacob's test results revealed that he also has a full mutation of the Fragile X gene, consistent with a diagnosis of Fragile X Syndrome.

26 Mrs Eastbury said that she was devastated upon receiving the test results and the diagnosis: Affidavit sworn 14 October 2014 at [20].

27 Accordingly, in summary, the chronology of events is as follows:

23.06.1979	Birth of first plaintiff, Leighee Eastbury
1988	First plaintiff's uncle diagnosed with Fragile X Syndrome
27.09.1999	First plaintiff sought referral for genetic testing
28.09.1999	Bloods taken from first plaintiff for genetic testing
7.10.1999	First plaintiff informed that test results negative
4.3.2006	Plaintiffs married
30.08.2008	Birth of plaintiffs' first child Hayden
12.03.2011	Birth of plaintiffs' second child Jacob
08.2010	First plaintiff notices that Hayden has speech difficulties
05.2012	Hayden diagnosed with autism and global delay
16.07.2012	Hayden tests positive for full mutation sized fragile X
17.08.2012	First plaintiff obtains results of repeat blood test showing that she is a carrier of fragile X in pre-mutated form
11.03.2014	Proceedings commenced

Submissions

28 The Notice of Motion for an extension of time under the Limitation Act 1969 was heard on 3 December 2014. Mr J Anderson of counsel appeared on behalf of the plaintiffs/applicants. Mr DA Lloyd of counsel appeared on behalf of the defendant/respondent Genea.

Plaintiffs' Submissions

29 On the issue of the applicable limitation period it was stated in the written submissions for the plaintiffs that upon the assumption that the relevant pleaded cause of action for damages is for damages for "personal injury" within the meaning of s 11 of the Limitation Act, the relevant limitation period expired three years after the date on which the cause of action first accrued to the plaintiffs: s 18A Limitation Act.

30 The plaintiffs' causes of action in respect of each of their children, it was stated, arguably accrued on the dates of their respective births, 30 August 2008 and 12 March 2011. It was on those dates that the plaintiffs first suffered damage which was not insignificant, although they were then unaware of such damage: Cartledge v E Jopling and Sons Limited [1963] AC 758. It was stated that the earliest date upon which either of their respective pleaded causes of action accrued was 30 August 2008.

31 Alternatively, it was submitted that if the pleaded cause(s) of action are not by definition "for damages for personal injury" within the meaning of s 18A of the Limitation Act, the applicable limitation period is six years: s 14(1)(b) of the Limitation Act. In that case, the present application would be unnecessary and it was submitted the Court would strike out sub-paragraph 25(a) of the defence pursuant to r 36.1 of the Uniform Civil Procedure Rules 2005.

32 In the submissions for the plaintiff it was noted that the jurisdiction to extend the limitation period arises under s 60G of the Limitation Act. It was submitted that the plaintiffs satisfied the threshold conditions prescribed under s 60I of the Limitation Act, as they were unaware until 8 August 2012 of the connection between the Genea's alleged act or omission and the injury when the first plaintiff obtained the results of the repeat genetic testing.

33 It was submitted in relation to the exercise of the Court's discretion, that:

(a) After becoming aware of the relevant connection, the plaintiffs acted with reasonable expedition in obtaining legal advice, procuring expert evidence and commencing these proceedings on 11 March 2014;

(b) The extent of the plaintiffs' damages is likely to be significant; and

(c) They are unaware of any factors which might militate against the exercise of the discretion.

Defendant's Submissions

34 Mr Lloyd relied upon his written submissions filed 17 November 2014 supplemented by oral submissions.

35 Genea opposed the extension of time sought in the Notice of Motion filed 12 August 2014. The basis upon which the extension of time was opposed was stated to be that the plaintiffs have not established that it is "just and equitable" to extend time, because it is likely that Genea will suffer irremediable prejudice if time is extended: Defendant's Written Submissions at [1].

36 In the written submissions the relevant facts were set out.

37 It was acknowledged that in 1999 Mrs Eastbury had a justifiable concern as to whether she may be a carrier of the genetic condition known as Fragile X and consulted her general practitioner, Dr Curtotti, in that respect, who gave her a referral.

38 It was observed in the defendant's written submissions that it appears that no copy of that referral is available because the documents of Dr Curtotti from this time are unavailable: at [3]. However, as discussed below, the document in the handwriting of Dr Curtotti on Macquarie Pathology letterhead contains a signed request by that doctor for the genetic testing of Mrs Eastbury (Exhibit 1).

39 Mrs Eastbury, it was acknowledged, on referral from Dr Curtotti to Macquarie Pathology, attended Macquarie Pathology on 28 September 1999 on which occasion blood samples were taken.

40 Genea's first involvement, it was stated, appeared to be the receipt of a referral dated 28 September 1999, a copy of which is Annexure "A" to Ms Weaver's affidavit: at [5]. As discussed below, that document appears capable of being characterised as a form of referral or "request" by Macquarie Pathology to "Sydney Genetics" as the "Reference Laboratory".

41 It was stated that although it is unclear, it appears that Genea, together with that referral, received a further document from Macquarie Pathology, being Annexure B to Ms Weaver's affidavit (a better copy of which was marked as Exhibit 1). It was submitted for Genea that the circumstances in which Macquarie Pathology referred the testing to Genea are uncertain. However, what appears to be clear is that Genea was retained not by the plaintiffs or Mrs Eastbury's general practitioner, but by Macquarie Pathology: Defendant's Written Submissions at [6].

42 Based on Ms Weaver's evidence, it was noted in the defendant's submissions that Genea, as at September/October 1999, did not perform testing to establish the carrier status of Fragile X of an individual. The only testing Genea was capable of performing at that time was chromosomal analysis to determine whether a person presently was affected by Fragile X: Defendant's Written Submissions at [7].

43 It was submitted for the defendant that there appears to be little likelihood of obtaining evidence bearing upon the knowledge of Macquarie Pathology as to the limitations of Genea's testing capabilities as at 1999, or any communications between Genea and Macquarie Pathology on this issue or, critically, whether Macquarie Pathology retained someone else to perform carrier status testing. Macquarie Pathology was deregistered on 22 March 2007 and it appears that any documents it held have been destroyed: Affidavit of Ms Faggionato at [10].

44 In the defendant's submissions it was stated that what is known is that Genea performed the only testing it was capable of performing, being chromosomal analysis of Mrs Eastbury's blood sample. Those test results are set out in Annexures C and D of Ms Weaver's affidavit. The test results were sent to Macquarie Pathology and the general practitioner in early October 1999: Affidavit of Ms Weaver at [7].

45 It was noted in the defendant's submissions that no criticism is made of the quality of the chromosomal tests which Genea performed: Defendant's Written Submissions at [10].

46 It was also stated that Genea cannot locate the actual copy of the report that it sent: Affidavit of Ms Weaver at [7].

47 It was observed in the defendant's submissions that when Mrs Eastbury was told by Dr Curtotti that "the result of the testing was negative" on 7 October 1999, that was a correct statement of the results of Genea's testing. Whether it was the correct statement in answer to the query Mrs Eastbury raised at the outset with Dr Curtotti, it was stated, was less obvious: Defendant's Written Submissions at [12].

48 The evidence of Ms Faggionato and Ms Weaver was relied upon to establish that, since the proceedings were commenced, attempts have been made by the solicitors for Genea to obtain relevant documents and locate relevant witnesses. These have revealed that:

(a) The documents held by Macquarie Pathology have been destroyed;

(b) The employees of Genea involved in performing the work are no longer working for Genea;

(c) The documents of Dr Curtotti from 1999 are not available.

49 In relation to the allegations made in the proceedings, the following matters were relied upon by Genea as relevant to the application for an extension of time.

50 Firstly, it was said an important fact is that there was no direct contract between the plaintiffs and Genea. The question of Genea's liability will turn on the precise details of its relationship with Macquarie Pathology and, in particular, what testing Macquarie Pathology requested Genea to perform and what knowledge Macquarie Pathology or Dr Curtotti had of Genea's limited testing capacity as of 1999.

51 Secondly, in relation to the power to extend the relevant limitation period in an "ordinary action", the Court must not make an order under s 60G of the Limitation Act unless it is satisfied of the matters set out in s 60I(a), namely:

"(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."

52 Section 60I(1)(b) provides for an application to be made within three years after a plaintiff becomes aware (or ought to have become aware) of all three matters listed in s 60I(a).

53 Thirdly, in the written submissions for the defendant, it was stated, inter alia, that the relevant principles in determining an application for an extension of time include the following:

(i) The plaintiff bears the onus of proof of persuading the Court that the discretion to extend time should be exercised favourably to the plaintiffs: McIntosh v Southern Meats Pty Ltd (1997) Aust Torts Reports 81-424 at 64,104.

(ii) In order to discharge the onus, an applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544 per Dawson J.

(iii) An applicant will succeed if, and only if, he or she satisfies the Court that it is just and reasonable to extend the period: Bell v SPC Ltd [1989] VR 170 at 175.

(iv) It is an error to weigh the competing interests of the plaintiff and the defendant, because to do so relieves the plaintiff of his or her persuasive burden: Sydney City Council v Zegarac (1998) 43 NSWLR 195.

(v) It is necessary for a plaintiff to negate significant prejudice before the discretion could be exercised in his or her favour: Zegarac, supra, per Mason P.

(vi) There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. However, the ultimate onus of satisfying the Court that time should be extended remains on the applicant: Brisbane South Regional Health Authority, supra, per Toohey and Gummow JJ at 547.

(vii) Where prejudice is alleged by reason of the effluxion of time, it is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then to the applicant to show that these facts do not amount to material prejudice: Brisbane South Regional Health Authority, supra, per Toohey and Gummow JJ at 547, citing and approving Gowans J in Cowie v State Electivity Commission of Victoria [1964] VR 788 at 793.

54 The submissions for Genea note that the "central liability issue" will turn on the precise details of the relationship between Macquarie Pathology and Genea in September/October 1999, there being no written contract. It was noted that Macquarie Pathology has no documents and that Genea's witnesses no longer are employed or would be most unlikely to have any recollection.

55 It was contended:

"Critically, Genea's ability to prove that Macquarie Pathology knew of Genea's limited testing capacity is impaired by the loss of this evidence. Similarly, it appears that it will not be known whether Macquarie Pathology arranged molecular testing of the blood sample with any other entity which performed tests as at September/October 1999." (At [35])

56 It was also contended for Genea that the prospect that Dr Curtotti's notes may shed light on these matters has been lost.

57 A further factor raised in the submissions for the defendant is that Genea (unsurprisingly) has stated that it would have wished to cross-claim against Macquarie Pathology and that this is not possible.

58 In relation to these matters it was submitted for Genea:

"In summary, the affidavits relied upon by Genea establish the likelihood of irremediable prejudice as follows:

(a) The documents held by Macquarie Pathology have been destroyed ...

(b) The company which operated Macquarie Pathology has been deregistered ...

(c) It is unlikely that any witnesses from Macquarie Pathology (if they can be found) could shed any light on the dealings between Macquarie Pathology and Genea in 1999.

(d) The employees of Genea involved in performing the work are no longer working for Genea ... Even if they can be found, it is most unlikely that they will have a recollection of any dealings they had with Macquarie Pathology in 1999.

(e) The documents of Dr Curtotti from 1999 are not available ...

(f) Macquarie Pathology is no longer available as a cross defendant." (At [38])

59 Additionally, it was contended that there exists "presumptive prejudice" affecting Genea.

60 The evidence, it was submitted, strongly supported the proposition of irremediable prejudice to Genea if the limitation period is extended. It was observed that Genea had produced evidence in support of the proposition that it will be prejudiced if time is extended. In the circumstances, it was submitted, the onus is on the plaintiffs to show that these facts do not amount to material prejudice in accordance with the abovementioned authorities. It was submitted that the plaintiffs have not discharged that onus: Defendant's Written Submissions at [41].

61 It was further submitted that, in the circumstances of this case, it is not a matter of weighing the undoubted prejudice to the plaintiffs, in what was said to be a very sad case, as a result of not extending time and the prejudice to Genea: citing Zegarac, supra. It was argued that it is necessary for the plaintiffs to negate the significant prejudice established by Genea: Zegarac, supra. The plaintiffs, not having discharged their onus, in Genea's submission, should not be granted an extension of time: Defendant's Written Submissions at [43].

Discussion

62 The evidence establishes that in September/October 1999 the following relationships existed:

(i) A doctor/patient relationship between Mrs Eastbury and Dr Curtotti;

(ii) A relationship between Dr Curtotti, as the referring medical practitioner, and Macquarie Pathology. It appears that the relevant relationship in this respect was established on 27 September 1999.

(iii) A relationship between Macquarie Pathology and Genea. This relationship appears to have come into existence on or about 7 October 1999.

63 In determining the present application for an extension of the limitation period, it is necessary to have regard to the nature and content of the relationship that existed between the abovementioned parties.

64 The relationship between Mrs Eastbury and Dr Curtotti, of course, may be taken to have involved face-to-face communications between them as patient and doctor.

65 The relationship between Dr Curtotti and Macquarie Pathology and the relationship between Macquarie Pathology and Genea, on the evidence, however, involved written communications based upon a documented system involving pathology requests/referrals and reports.

66 The key documents containing communications by way of instructions and testing are to be found in three documents, namely:

• Annexure "A" to Ms Weaver's affidavit: Pathology Referral by Macquarie Pathology to Genea;
• Annexure "B" to Ms Weaver's affidavit: handwritten instructions given by Dr Curtotti to Macquarie Pathology (a better copy of which is Exhibit 1); and
• Annexure "E" to Ms Weaver's affidavit: the "reconstructed" test report by Genea to Macquarie Pathology with a copy to Dr Curtotti.

67 The evidence, including in particular the evidence of Ms Weaver, establishes the following chain of written communications and events concerning the testing of Mrs Eastbury's blood sample:

(i) Dr Curtotti sent a doctor's referral in respect of Mrs Eastbury to Macquarie Pathology. Macquarie Pathology, it is accepted, then took a blood sample from Mrs Eastbury.

(ii) Macquarie Pathology then completed the "Pathology Referral" addressed to "Sydney Genetics" (now Genea) (Annexure "A" to Ms Weaver's affidavit).

(iii) Macquarie Pathology, on the evidence, would have attached Dr Curtotti's handwritten referral written on Macquarie Pathology letterhead (Annexure "B" referred to in [67]) to the "Pathology Referral", and then sent both documents to Genea: Affidavit of Ms Weaver at [4].

68 The critical information recorded and provided in both documents sent to Genea by Macquarie Pathology included the following:

(1) The patient concerned was at the time of the referral a female aged 20 years.

(2) That she had an uncle who had the X factor associated with mental retardation.

(3) Mrs Eastbury's blood sample was sent to Genea, with the referral documents referred to in [68](iii) above.

(4) The documents included a reference to "chromosome (Fragile X)" testing.

(5) The reason for the request for testing, as disclosed in Dr Curtotti's referral/request written on Macquarie letterhead, namely:

• "genetic testing for carrier status of X-factor"; and

• "Uncle has X-factor mental retardation."

69 On the evidence on this application it may be concluded that it would have been apparent to anyone reading the "Pathology Referral" (Annexure "A" and Dr Curtotti's handwritten referral on Macquarie Pathology letterhead, Annexure "B"/Exhibit 1) that the family genetic history (associated with Mrs Eastbury's uncle) formed the basis upon which a female patient (Mrs Eastbury), then of childbearing years (age 20) was being referred for testing.

70 Whilst, it is to be noted, the typed "Pathology Referral" sent by Macquarie Pathology to Genea (Annexure "A" to Ms Weaver's affidavit) reproduced, in typed form, Dr Curtotti's words "uncle has x-factor Mental Retardation", it did not also reproduce Dr Curtotti's further handwritten note on the request form, as set out above, "genetic testing for carrier status of X-factor". The latter was clearly a critical statement.

71 Whilst the failure to include these words in the "Pathology Referral" was a material omission, a reading of the document attached to it, namely Dr Curtotti's handwritten referral request, would have disclosed that Dr Curtotti had made his request for testing for the purpose of and on the basis of the need to determine a critical issue, namely, the "carrier status" of Mrs Eastbury.

72 Genea, it appears based on Ms Weaver's evidence, though not having the capability to perform molecular testing as at September 1999, had the information in Dr Curtotti's handwritten referral as to the reason the request for testing was being made, namely, "genetic testing for carrier status" of X-factor. If Genea did not have the capability of undertaking testing of that kind, of course, it would have been expected to have replied to Macquarie Pathology to the effect that it could not fulfil the request for testing. However, on the evidence in this application, it did not do so. Instead, it did act on the pathology request but only by undertaking a limited test analysis that was within its then capability and inserting the results of the same in the report sent by Genea to Macquarie Pathology with a copy to Dr Curtotti (Annexure "E" to Ms Weaver's affidavit). In that report, it recorded, inter alia:

"46, XX Female - No abnormalities detected

Fragile X negative in 75 cells examined."

73 In responding to the referral and request for testing in these terms and, in particular, having regard to the specific terms of Dr Curtotti's request, Genea's report was effectively conveying or suggesting, or at least impliedly representing. in answer to Dr Curtotti's handwritten request, that Mrs Eastbury had no carrier status. This, at least arguably for the purpose of the present application, might be inferred as arising from a failure by Genea, by its employees, to properly read Dr Curtotti's handwritten instructions attached to the "Pathology Referral". Had both documents been read by Genea's employee the basis and purpose for which the testing was being requested would have been made clear: "genetic testing for carrier status of X-factor". If Genea could not provide an answer, it had to say so.

74 It is in the light of these facts and circumstances that the issue of claimed and presumptive prejudice raised in the submissions for the defendant is to be examined.

75 A submission for the defendant, as noted above, was that "the central liability issue" will turn on the precise details:

"... of the relationship between Macquarie Pathology and Genea in September/October 1999. There is no written contract ... Macquarie Pathology has no documents. Genea's witnesses no longer are employed and would be most unlikely to have any recollection."

76 As the High Court judgment in Brisbane South Regional Health Authority (1996) 186 CLR 541 indicated, in determining the exercise of the statutory discretion to extend a limitation period, the real question is whether delay has made the chances of a fair trial unlikely (per Toohey and Gummow JJ at 550). In determining that question it is necessary for the court determining the application to identify the nature of the liability issue that would arise at trial. That done, it then becomes necessary to identify all of the particular facts and circumstances relevant to that issue in order to determine whether prejudice could exist or arise by reason of the delay that has ensued.

77 In Brisbane South Regional Health Authority, supra, a case that involved an alleged breach of duty in a doctor recommending a hysterectomy for the respondent, the recollection of the doctor concerning the patient, and advice, and the availability of his notes were all plainly relevant to the issue as to whether a fair trial was unlikely by reason of the delay.

78 In the present proceedings, as discussed above, the relationship between Macquarie Pathology and Genea was, on the evidence, not one involving direct verbal communications between employees of the two corporations. The evidence, as discussed above, was that pathology services and test analyses were based upon a system of documented communications involving the completion of written request forms containing written instructions from the referring doctor and the like, responded to by a written report upon completion of the relevant testing. In such circumstances, the contemporaneous documentation constituting the communications consists of the doctor's referral disclosing the background and purpose of the request for the testing, the "Pathology Referral" between Macquarie Pathology and Genea and the report back from Genea both to Macquarie Pathology and to the referring doctor.

79 Such documents evidence the dealings between Macquarie Pathology and Genea and reporting back to the referring doctor. On the evidence on this application, it is likely that the system that operated did not call for, require or involve discussions between the referring doctor and Macquarie Pathology or between Macquarie Pathology and Genea. It is apparent that Genea acted on the request of Macquarie Pathology with the written instructions of the referring doctor being provided to both Macquarie and Genea.

80 The above documents, of course, remain in existence. They establish the data or information that was being transferred from the referring doctor to Macquarie Pathology and from Macquarie Pathology to Genea. There also exist documents containing the analysis and results derived by Genea based upon the particular testing it undertook (Annexures "C" and "D" to Ms Weaver's affidavit).

81 There is no suggestion that Genea would be prejudiced by the loss of any other particular class of documents that could be expected to have existed. The submissions directed to establishing that Macquarie Pathology have no documents (Defendant's Written Submissions at [34]) and the fact that Dr Curtotti's notes are no longer available and "may" shed light on these matters (Defendant's Written Submissions at [36]), do not identify any additional matters beyond those which were conveyed by Dr Curtotti in his written referral which might be capable of placing a different complexion upon the actual written communications constituting the relevant dealings between Dr Curtotti, Macquarie Pathology and Genea.

82 The mere possibility that there may be other unspecified documents that may shed some further light on the dealings or communications between the parties does not, in the particular circumstances of this particular case, establish, in my assessment, either actual prejudice or presumptive prejudice.

Conclusion

83 As noted above, the analysis relied upon by Genea in its submissions proceeded upon the assumption or basis that there were factual issues of significance on liability but that the absence of available evidence from witnesses on them, supported the defendant's claims as to prejudice. Those factual issues included:

• The circumstances in which Macquarie Pathology referred testing to Genea;
• The knowledge of Macquarie Pathology and Dr Curtotti as to the limitations of Genea's testing capabilities as at 1999;
• Communications between those two companies (Macquarie Pathology and Genea) on the fact; and
• The relationship between those two companies.

84 In assessing the issue of prejudice and the associated issue of a fair trial, it has been necessary to closely consider whether the abovementioned assumptions as to the significance or importance of the factual matters referred to in the preceding paragraph is well-founded. In circumstances where, as discussed above, the dealings between the referring doctor and Macquarie Pathology, and between the latter and Genea, proceeded in writing in accordance with an established system for testing based upon the doctor's request or instructions given by him in Mrs Eastbury's case, I do not, with respect, consider that the prejudice contended for by the defendant has been established.

85 The determination of this application is to be undertaken in accordance with established principles, including in particular, those enunciated in the High Court's judgment in Brisbane South Regional Health Authority, supra. These require the particular facts and circumstances of a case, as known at the time of the application, to be closely examined for the purposes of determining and resolving any suggested issue of prejudice and the chances of a fair trial.

86 I have concluded, upon the analysis set out above, that the defendant has not established that this is a case in which discretion should be exercised against an extension of time on the basis of the claimed actual or presumptive prejudice. The possibility of there being some evidence, other than the documentary material that is available, in my opinion does not establish that the defendant is unlikely to have a fair trial.

87 The fact that Macquarie Pathology no longer exists does not constitute, in my opinion, a fact that establishes a prejudice that precludes the extension of time sought by the plaintiffs being granted. The fact that Dr Curtotti's clinical notes (other than as recorded by him in his referral/request for testing) are no longer available, has not been shown to be of importance in a case such as this which does not involve information as to the doctor's clinical observations or his examination of a patient or communications about treatment options, risks of treatment and related matters.

Orders

88 Accordingly, I make the following orders:

(1) An order that the limitation period for the causes of action pleaded in the Statement of Claim filed 11 March 2014 be extended to 11 March 2014.

(2) On the costs follow the event rule, costs of the application would ordinarily be awarded in favour of the plaintiffs against the defendant. I will, however, if the defendant wishes to argue against the making of such an order, allow a period of seven (7) days to apply in that respect.

**********

Decision last updated: 17 December 2014