Harriton & Anor v Macquarie Pathology Services Pty Limited & 4 Ors (No 6) [1999] NSWSC 469

Harriton & Anor v Macquarie Pathology Services Pty Limited & 4 Ors (No 6) [1999] NSWSC 469

Although the plaintiffs' solicitor had been under a misapprehension of fact about the timing of Karin Rose's move and the destruction of Dr Rose's records, and that misapprehension was not solely due to the plaintiffs' neglect or default, the plaintiffs lacked direct evidence that Karin Rose destroyed the records with knowledge of impending proceedings. In any event, even if destruction of the records were established and disregarded as a source of prejudice, the fifth defendant and the estate would still suffer significant prejudice because Dr Rose was dead and could not give evidence. The further evidence therefore would not have made a material difference to the outcome, and justice...

Jurisdiction
Australia
Judgment Date
21 May 1999
Procedural Posture
Notice of Motion for Leave to Re Open After Judgment Has Been Given But Not Entered / Common Law Division Motion After Judgment Delivered and Before Entry of Judgment
Outcome
The plaintiffs' notice of motion was dismissed with costs.
Legal Topics
['reopening Judgment Before Entry' 'fresh or Additional Evidence' 'finality of Litigation' 'extension of Limitation Period' 'destruction of Medical Records' 'prejudice to Deceased Estate']
['civil Procedure' 'limitation of Actions' 'medical Negligence'] ['reopening Judgment Before Entry' 'fresh or Additional Evidence' 'finality of Litigation' 'extension of Limitation Period' 'destruction of Medical Records' 'prejudice to Deceased Estate']

Case Brief

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Procedural Posture

Notice of Motion for Leave to Re Open After Judgment Has Been Given But Not Entered / Common Law Division Motion After Judgment Delivered and Before Entry of Judgment

Legal Issues

  1. 1 ["Whether the plaintiffs' notice of motion should be allowed so that the earlier order refusing to extend time against the fifth defendant could be set aside or reheard on limited issues." "Whether further evidence about Karin Rose's destruction of Dr Gabriel Rose's medical records justified reopening the case after reasons for judgment had been delivered but before entry." 'Whether any misapprehension about the timing and circumstances of destruction of the medical records would have made a material difference to the decision refusing an extension of time.']

Ratio Decidendi

Although the plaintiffs' solicitor had been under a misapprehension of fact about the timing of Karin Rose's move and the destruction of Dr Rose's records, and that misapprehension was not solely due to the plaintiffs' neglect or default, the plaintiffs lacked direct evidence that Karin Rose destroyed the records with knowledge of impending proceedings. In any event, even if destruction of the records were established and disregarded as a source of prejudice, the fifth defendant and the estate would still suffer significant prejudice because Dr Rose was dead and could not give evidence. The further evidence therefore would not have made a material difference to the outcome, and justice...

Court Disposition

The plaintiffs' notice of motion was dismissed with costs.

Orders

  • ["The plaintiffs' notice of motion filed 15 December 1998 is dismissed." "The plaintiffs are to pay the fifth defendant's costs."]