Hogan v Thornley

1. [1]

   HIS HONOUR: This is an application brought by Michael Hogan (the plaintiff) by way of a notice of motion filed on 29 November 2024, seeking an order that the limitation period for his commencement of personal injury proceedings against a medical specialist, to whom he was referred by his general practitioner, be extended nunc pro tunc; that is, that the plaintiff be permitted to retrospectively rely upon the initiating filing that otherwise was filed out of time, pursuant to the relevant provisions of the Limitation Act 1969 (NSW). The order sought is that it be extended to 23 December 2020.

The nature of the claim

1. [2]

   Between December 1997 and 2016, the plaintiff consulted his general practitioner, Dr Martin Jaffe (Dr Jaffe), reporting certain symptoms: a deterioration of memory, low energy levels and general fatigue and tiredness. In consultations over subsequent years, he continued to report the same symptoms to Dr Jaffe.

2. [3]

   In June 2003, Dr Jaffe referred the plaintiff to Dr Stephen Thornley (Dr Thornley), who is an endocrinologist, furnishing to him pathology results. The plaintiff was assessed by Dr Thornley on 23 July 2003 (their only consultation), who wrote to Dr Jaffe, “noting the plaintiff had abnormal thyroid function with a history of long standing lethargy, dyspnoea, hair loss, cold intolerance and a longstanding problem with memory” and advising that the plaintiff required further testing, review and a thyroid ultrasound.

3. [4]

   On 11 August 2003, Dr Thornley emailed the plaintiff. The email was part of the tender bundle to this Court. It states:

4. [5]

   The following day, the plaintiff replied, stating, “Great news Stephen”.

5. [6]

   On or about 3 September 2003, Dr Thornley advised Dr Jaffe, following test results, that in his opinion the thyroid function tests were essentially normal, and with further advice as to treatment.

6. [7]

   The plaintiff’s health steadily declined and on 20 April 2016 he consulted another general practitioner, Dr Jodie Parker, who arranged for him to have a CT scan on 31 August 2017 and an MRI on 2 September 2017. The CT scan showed a likely macropituitary adenoma (a pituitary macroadenoma), which was confirmed by the MRI. The plaintiff was referred to a neurosurgeon, Dr Ali Ghahreman. Dr Ghahreman referred the plaintiff to an endocrinologist, Dr Terry Diamond, who the plaintiff saw on 12 September 2017. In a letter of the same date to Dr Ghahreman, a copy of which is in evidence, Dr Diamond stated:

7. [8]

   Dr Ghahreman removed the adenoma on 21 September 2017. On 22 September 2017, the plaintiff underwent further surgery to remove a suprasellar haematoma and on 1 October 2017, a craniotomy with evacuation of the haematoma. He was discharged from hospital on 3 November 2017.

8. [9]

   The plaintiff consulted Wyatts Lawyers & Advisors (Wyatts) who filed a statement of claim against Dr Jaffe on 18 October 2019. It is the plaintiff’s case that, consequent to his impaired memory, he did not recall, and therefore did not instruct Wyatts, that he had also been treated by Dr Thornley. That came to the attention of Wyatts in January 2020, who brought it to the plaintiff’s notice in February 2020. By an amended statement of claim that was filed on 23 December 2020 (the ASoC) the plaintiff joined Dr Thornley, as the second defendant. The proceedings against the first defendant resolved on 10 October 2023. Dr Thornley filed a cross claim against Dr Jaffe on 7 May 2024.

9. [10]

   The plaintiff filed a further amended statement of claim (the Further ASoC) on 8 March 2024 and Dr Thornley filed a defence to the Further ASoC on 6 June 2024.

10. [11]

    In an affidavit by the plaintiff dated 20 March 2025 (the plaintiff’s affidavit), he described his injuries and disabilities thus:

11. [12]

    The plaintiff pleaded that the risk of harm of a delayed diagnosis of secondary hypothyroidism and/or pituitary adenoma ought to have been foreseeable by a reasonable defendant in Dr Thornley’s position, that Dr Thornley was under a duty of care to take precautions against that harm and was in breach of it, as a result of which the plaintiff suffered injury, loss and damage. The plaintiff clarified in oral submission at the hearing of the motion that it is his case that the tumour existed (and was missed) at the time he was assessed by Dr Thornley.

12. [13]

    In his defence to the Further ASoC, Dr Thornley pleaded s 5O of the Civil Liability Act 2002 (NSW); that he acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice, and that he did not incur any liability in negligence to the plaintiff. In further answer, Dr Thornley denied the claim pursuant to s 50C(1)(b) of the Limitation Act.

The relevant legislative provisions

1. [14]

   Sections 50C(1) and s 50D of the Limitation Act which are in Pt 2, Div 6 of the Act, provide as follows:

2. [15]

   The power of the Court to extend the long-stop period is provided, relevantly, by ss 62A(1)-(3) and 62B(1) of the Limitation Act:

Affidavit evidence as to the delay in commencing proceedings

1. [16]

   Affidavits by the plaintiff, the plaintiff’s solicitor Mitchell Broom and the defendant’s solicitor Paul Baram were read, subject to their availability for cross-examination, with the exception of an objection taken to para (39) in the affidavit of Mr Broom, which I have determined to be inadmissible.

2. [17]

   The plaintiff’s material included an evidentiary statement that he made on 20 July 2021. The plaintiff explained in his affidavit that where he had no recollection of what happened during medical consultations and legal conferences or telephone calls, his statement was based on his belief about what happened after being shown and read:

3. [18]

   As to the issue of delay, the plaintiff said that he had not recalled the involvement of Dr Thornley. He stated, with the above proviso, that on 25 October 2017, his wife contacted Wyatts. On 15 November 2017, he attended his first conference, which was with a Principal of Wyatts, as to the issue of whether there was a cause of action against Dr Jaffe. Annexed to his affidavit are the conference notes of the Wyatts’ solicitor and a letter from the Principal to the plaintiff, dated 27 November 2017, confirming the history he provided. Those documents refer to the plaintiff seeing Dr Jaffe, but do not mention that he was referred to Dr Thornley. The conference notes include the following: “Memory issues he considers to go back to at least 1998 when he was working for Franklins as a National Buyer where he worked until 2000”. A letter was sent to the plaintiff, dated 27 November 2017, confirming the history he provided, including that reference to his memory issues. The conference notes and letter refer to the plaintiff seeing Dr Jaffe, but do not mention that he was referred to Dr Thornley. In that letter, the plaintiff was advised, incorrectly, that:

4. [19]

   The letter went on to request the plaintiff’s signed medical authorities, so that Wyatts could obtain his clinical records. On 27 November 2017, the plaintiff signed a costs agreement with Wyatts.

5. [20]

   On 1 December 2017, Wyatts wrote to Dr Jaffe’s medical practice requesting “copies of all clinical notes, reports, discharge summaries, operation records, letters of referral and X-ray reports” relating to the plaintiff’s attendance upon the practice. Those documents were produced on 13 December 2017 (Dr Jaffe’s first records batch). Mr Broom stated, “A review of those records did not disclose any previous referral to an endocrinologist”.

6. [21]

   A photocopy of the notes is in evidence. There are 194 pages in all. 15 pages are handwritten clinical notes, covering the period from an illegible date in 1985 to 16 February 2015. There are eight pages of correspondence and 164 pages of (typed) pathology results. On my examination of the clinical notes, there are two barely legible references to “S”, followed by a name that is consistent with “Thornley”, but not legible as such. One of the references is preceded by “D/W”, which, as noted by Adjunct Clinical Associate Professor Peter Clyne (A/Prof Clyne), is an abbreviation for “discussed with”. The context is clearly pathology results, apparently concerning the plaintiff’s medical complaint. The dates for the two entries appear to be 28 May 2003 and 3 September 2003. Three sets of results in the pathology notes identify “Dr S Thornley” as the source of the referral, all indicating a request date of 23 July 2003 and a collection date of 8 August 2003.

7. [22]

   On 4 April 2018, the plaintiff attended a conference with Wyatts and a barrister, Kelvin Andrews. Following the conference, the plaintiff attended appointments with medical experts, including a consultant endocrinologist, Professor John Carter, on 30 August 2018. It is apparent that Prof Carter was briefed with a copy of Dr Jaffe’s first records batch. In a letter dated 3 September 2018, Prof Carter wrote to Wyatts:

8. [23]

   The plaintiff was referred to a consultant general practitioner, A/Prof Clyne, to obtain an expert opinion as to whether there was evidence of an abrogation of Dr Jaffe’s duty of care to the plaintiff (causation). A/Prof Clyne was also briefed with a copy of Dr Jaffe’s first records batch. In his report, dated 25 June 2019, A/Prof Clyne canvassed the history he has been provided by Wyatts and a history he obtained from the plaintiff; neither included a disclosure that Dr Jaffe had referred the plaintiff to Dr Thornley.

9. [24]

   A section of A/Prof Clyne’s report is titled, “Chronology of Events”. It is apparent from the preamble that A/Prof Clyne refers to Dr Jaffe’s first records batch which included hand-written clinical notes:

10. [25]

    The summary that follows in A/Prof Clyne’s report includes a reference to the results of “Blood tests ordered by Dr S. Thornley” that were received on 8 August 2003. The entry in A/Prof Clyne’s report reads: “8th August 2003 Blood tests ordered by Dr S. Thornley return the following results”, followed by the results.

11. [26]

    Under the heading “Analysis and discussion”, A/Prof Clyne was critical of the investigations that Dr Jaffe performed of the plaintiff. He concluded the section stating the following:

12. [27]

    A/Prof Clyne repeated his opinion that Dr Jaffe had “failed to refer the plaintiff to an appropriate specialist” five more times in his report. It follows that it appears from A/Prof Clyne’s report that he had not appreciated that the reference to “Dr S. Thornley” requesting blood tests was to an endocrinologist.

13. [28]

    There is no evidence of Wyatts acting upon the reference to Dr Thornley in the clinical records, as noted in A/Prof Clyne’s report.

14. [29]

    The plaintiff stated in his affidavit:

15. [30]

    As noted, on 18 October 2019, Wyatts commenced proceedings against Dr Jaffe.

16. [31]

    On 8 January 2020, the solicitors acting for Dr Jaffe produced additional records to Wyatts, which, they explained, had been overlooked due to an administrative error which was correspondence between Dr Jaffe and Dr Thornley (Dr Jaffe’s second records batch). It included a letter dated 23 July 2003 from Dr Thornley addressed to Dr Jaffe, in which he thanked Dr Jaffe for asking him to review the plaintiff “who presents with abnormal thyroid function”. In the letter, Dr Thornley noted that the plaintiff has a “long-standing problem with memory.”

17. [32]

    On 10 February 2020, Wyatts phoned the plaintiff and informed him of their receipt of these records and that they included a referral to, and correspondence from, Dr Thornley, in July 2003. The plaintiff was asked whether he recalled that referral. A file note records:

18. [33]

    The following day (11 February 2020), the plaintiff emailed the solicitor at Wyatts who then had carriage of his matter:

19. [34]

    Wyatts lawyers advised the plaintiff that they would “obtain expert advice” as to whether Dr Thornley could be joined. On 23 October 2020, Wyatts briefed Duncan Graham SC. On 11 November 2020, the plaintiff attended a conference with Mr Graham by audio video link. Following a further report from Prof Carter, on 23 December 2020, Dr Thornley was joined.

20. [35]

    Mr Broom is the solicitor employed by Wyatts who has had the carriage of the plaintiff’s matter since 18 October 2021. He stated that the solicitors who were responsible for the matter before him were no longer with the firm. Two affidavits by Mr Broom were read, dated 29 November 2024 and 20 March 2025. In his later affidavit, Mr Broom referred briefly to Wyatt’s investigations into Dr Jaffe’s potential liability to the plaintiff. He gave a chronology of the firm’s awareness of the potential liability of Dr Thornley and the preparation of the case against him:

21. [36]

    As to any prejudice that an extension may occasion to Dr Thornley, Mr Broom stated that all of Dr Thornley’s records concerning the plaintiff are available and that Dr Thornley was able to respond to interrogatories that were served upon him on 12 May 2023.

22. [37]

    As noted, Mr Baram is the solicitor on record for Dr Thornley. He annexed various documents to his affidavit that are relevant to the defendant’s case, including the email from Dr Thornley to the plaintiff dated 11 August 2003 extracted at [4] above, and Dr Diamond’s letter to Dr Ghahreman dated 12 September 2017.

23. [38]

    Mr Baram said that he obtained a copy of Services Australia’s records relating to the plaintiff between 1997 and 2020, which disclosed that Dr Thornley’s service to the plaintiff is listed with Dr Jaffe as an ordering provider, and the pathology ordered by Dr Thornley is listed, with him identified as an ordering provider. Mr Baram noted that the earliest request made of Services Australia for a claims history statement concerning the plaintiff by Wyatts was on 31 October 2019. Mr Baram stated:

The evidence at the hearing

1. [39]

   The plaintiff’s evidence suffered from him having little memory of relevant events. The plaintiff’s assertion that his memory was seriously impaired by his medical condition was not challenged by the defendant; it was not put, or suggested, to him that he was feigning a loss of memory. He said that he continued to have no memory of the email sent to him from Dr Thornley on 11 August 2003. He explained that Dr Thornley sent the email to his work email address, and that he lost those emails when his employment ceased, some years before 2017.

2. [40]

   He did have a distinct memory of seeing Dr Diamond (who he saw on 12 September 2017), which prompted him to make inquiries as to a possible legal claim. He said of his consultation with Dr Diamond, who he knew to be an endocrinologist:

3. [41]

   The plaintiff was asked about the content of his email to Wyatts on 11 February 2020, in which he stated that Prof Carter had told him that, according to Dr Jaffe’s clinical notes, he had discussed his case with an endocrinologist around 2003. He was asked if he told his solicitors what Prof Carter had told him:

4. [42]

   The cross-examination of Mr Broom centred on when Wyatts first became aware of a possible claim in negligence. It was based on Wyatts’ records, since Mr Broom did not take over carriage of the matter until 18 October 2021; that is, 10 months after Dr Thornley had been joined. Accordingly, his evidence was of little utility to the issues in dispute.

5. [43]

   The cross-examination of Mr Baram probed Mr Baram’s opinion that, effectively, Wyatts should have obtained a Medicare Claims Record at the outset. Mr Baram agreed that in order to make a request for a claims report, there must be a basis for the request, that Wyatts did not have a report on causation (from A/Prof Clyne) until 2019, and that the request for a claims report was made after proceedings were commenced against Dr Jaffe.

The plaintiff’s submissions

1. [44]

   The plaintiff joined Dr Thornley in the proceedings by way of the amended statement of claim more than 17 years after the one occasion that Dr Thornley examined him, and accepted that he could only succeed on the application if, pursuant to s 62A(2) of the Limitation Act, he could establish that the date of filing of the amended SoC was no more than three years after the date on which the cause of action became discoverable; in other words, if he could establish that it was not discoverable on or before 23 December 2017, which is the date three years before he filed the amended SoC.

2. [45]

   The plaintiff’s first argument in favour of that proposition was that:

3. [46]

   Secondly, since the plaintiff was diagnosed with a pituitary macroadenoma on 31 August 2017, underwent neurosurgery and rehabilitation thereafter and then instructed solicitors in November 2017, he could not, and ought not, to have known the facts required by s 50D(1) of the Limitation Act within about a month of instructing solicitors or within three months of having major brain surgery.

4. [47]

   Thirdly, in determining whether the plaintiff took “reasonable steps”, the question is whether he personally took reasonable steps, and not the state of knowledge of his legal advisers: Rickhuss v The Cosmetic Institute Pty Ltd (No 4) [2023] NSWSC 666 at [172].

5. [48]

   It was submitted that, in any event, the plaintiff was “a competent adult” and his solicitors were entitled to proceed on his instructions, which did not include him consulting an endocrinologist. As well, there was nothing in Dr Jaffe’s fist records batch to alert them to Dr Thornley’s involvement:

6. [49]

   The plaintiff submitted that the evidence established that the plaintiff first became aware that he had a pituitary macroadenoma on 31 August 2017. He did not recall the consultation with, or involvement of, Dr Thornley in his treatment and was unaware of it until early 2020, when Wyatts asked him about the entries in recently disclosed further medical records of Dr Jaffe. Thereafter, he promptly instructed Wyatts “to investigate a claim against [Dr Thornley] and has at all times followed their advice and provided instructions without delay”.

7. [50]

   The plaintiff said that it was unreasonable to expect that his solicitors should have investigated a reference in Dr Jaffe’s first batch of produced records to a “S. Thornley” or to have requested a Medicare Claims Record for the plaintiff when he had not given instructions of attending upon anyone other than Dr Jaffe in relation to his condition.

8. [51]

   The plaintiff submitted that Dr Thornley would not be prejudiced by the delay in the proceedings, because he had access to the relevant records and correspondence.

The defendant’s submissions

1. [52]

   The defendant submitted that the cause of action was discoverable for the first time on 12 September 2017 when Dr Diamond expressed a view that he was misdiagnosed in 2003. As to whether the plaintiff “ought to have known” that he had a cause of action against Dr Thornley at that time, the defendant conceded in oral submissions that it was “the trickiest limb” for the defendant; he had taken “reasonable steps” by immediately engaging solicitors. As to what he ought to have done, counsel for the defendant orally submitted:

2. [53]

   Pursuant to s 50D(2), the involvement of Dr Thornley in the plaintiff’s treatment would have been discovered prior to 23 December 2017 if his solicitors had requested a Medicare Claims Record, since it would have informed them that Dr Thornley was a “rendering provider” and “ordering provider” for the plaintiff. As to the plaintiff’s personal knowledge, the defendant relied upon the plaintiff’s email to Wyatts on 11 February 2020, extracted at [33] above, that he had been told by Prof Carter that Dr Jaffe’s clinical records showed that Dr Jaffe had discussed his case with an endocrinologist “around this time”, which I take to mean the time that the plaintiff in fact saw Dr Thornley, according to the second batch of records produced by Dr Jaffe.

3. [54]

   Secondly, and in the alternative, it would not be just and reasonable to extend the limitation period because significant actual and presumptive prejudice would be occasioned to Dr Thornley. The defendant submitted that he would suffer actual prejudice (s 62B(1)(b)). Although the correspondence between Dr Thornley and Dr Jaffe is available, the nature of the plaintiff’s claim extends beyond that ambit, which is prejudicial to Dr Thornley given that the consultation with the plaintiff and any conferences with Dr Jaffe occurred in 2003; that is, 22 years ago, and more than 17 years before the filing of the amended SoC. The Court was invited to infer from Dr Thornley’s responses to interrogatories to the effect that he did not recall certain matters and that he did not have an independent recollection of the case.

Consideration

1. [55]

   The plaintiff bears the onus to satisfy the Court that the discretion to extend the long-stop period should be exercised in his favour and that it would not involve a significant prejudice to the prospective defendant, although there is an evidentiary onus on the defendant to raise any consideration against the exercise of the discretion: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 per Dawson J at 544 and Toohey and Gummow JJ at 547; [1996] HCA 25.

2. [56]

   The question for determination is: when was the cause of action discoverable? In my view, in the context of this factual matrix, that devolves to the question of: when was the plaintiff capable of instructing his solicitors that Dr Thornley had examined and advised him and/or Dr Jaffe in relation to his medical complaint; that is, when was he aware of it?

3. [57]

   As to how s 50D(2) is to be understood in the context of this case, the appropriate test, in my view, is what the plaintiff knew or ought to have known; not what a reasonable person in the plaintiff’s position ought to have known: Telstra Corporation Ltd v Rea [2002] NSWCA 49 per Foster AJA, Mason P and Einstein J agreeing, at [37]. As noted by Faulkner J in Doughty v Hillier [2024] NSWSC 1220 at [90]:

4. [58]

   Accordingly, the plaintiff’s memory impairment is relevant to what the plaintiff knew, or ought to have known. The plaintiff has reported having a worsening memory for at least 25 years. I accept that he did not recall having seen Dr Thornley, or his email communications, when he first retained Wyatts in this matter and gave them instructions on 15 and 27 November 2017, and therefore the cause of action was not discoverable at that time.

5. [59]

   The next possible time for discoverability is when Prof Carter informed the plaintiff that, according to Dr Jaffe’s first records batch, Dr Jaffe had consulted with an endocrinologist, which I assume to have been when Prof Carter assessed him on 30 August 2018. Curiously, there is no mention in Prof Carter’s report that he had observed in Dr Jaffe’s records a reference to a consultation with an endocrinologist.

6. [60]

   It would, of course, be unsurprising that Prof Carter, who was a consultant endocrinologist practising in Sydney, recognised the reference in the notes as being to “S. Thornley”, an endocrinologist who also practised in Sydney. Whether or not that was the source of Prof Carter’s view that Dr Jaffe had consulted with an endocrinologist in about 2003, as recalled by the plaintiff in February 2020, it is perplexing that Prof Carter did not mention it in his report to Wyatts.

7. [61]

   In my view, the plaintiff was entitled to expect that Prof Carter would have informed Wyatts of all relevant matters in his report, which relieves the expectation that he, the plaintiff, should have personally reported to Wyatts what Prof Carter had told him, assuming that he recalled that exchange after the conference, without prompting.

8. [62]

   In the context of ss 50D(1) and (2), I am satisfied that the plaintiff’s impaired memory is factored into the reference to “the person”. It follows that I am satisfied he did not know of the factor identified in s 50D(1)(b) and that he had taken “all reasonable steps” to ascertain the identity of the relevant defendants, before it was brought to his attention on 10 February 2020 that he had been assessed by Dr Thornley. From that time, his solicitors investigated a possible action against Dr Thornley, culminating in him being joined on 23 December 2020.

9. [63]

   I turn then to consider the evidence as to when the plaintiff’s legal advisors could, or should, have realised that Dr Thornley, an endocrinologist, had examined the plaintiff and given an opinion as to his diagnosis and treatment.

10. [64]

    As noted, the plaintiff submitted in writing that it was unreasonable to expect that Wyatts should have investigated a reference in the 2017 batch of Dr Jaffe’s notes to “S. Thornley”, when the plaintiff had not instructed Wyatts that he had seen a specialist, and Dr Jaffe had not produced correspondence of a specialist consultation.

11. [65]

    That submission was a reference to Dr Jaffe’s hand-written notes. I accept that those scrawls were not a red flag, but the same can’t be said for the crisply printed references to “Dr S. Thornley” requesting pathology on 27 July 2003 and the results being received on 8 August 2003. On their own, they were worthy of inquiry, and in conjunction with the hand-written notes, more so.

12. [66]

    It is no answer to submit that the plaintiff did not instruct Wyatts that he attended an endocrinologist, because they were aware that he had an impaired memory. Relying exclusively on his instructions for a reliable account of which doctors he had consulted over the period of his medical complaint, which on his account dated back to the 1990’s, was unwise to say the least.

13. [67]

    The pathology entry in A/Prof Clyne’s report, considered in isolation, should also have prompted Wyatts to request a Medicare Claims Record or to make other inquiries as to whether there was a Dr S. Thornley also providing medical services to the plaintiff concerning this issue. Wyatt’s failure to do so is ameliorated to some extent by the fact that a reading of A/Prof Clyne’s report, as a whole, suggests that he was of the view that Dr Jaffe had not consulted an appropriate specialist. Therefore, it may be inferred that A/Prof Clyne had proceeded on the basis that the reference to “Dr S. Thornley” was not to an endocrinologist.

14. [68]

    In any event, the question for determination is what the plaintiff, and not his legal advisors, knew or ought to have known: Pomare v Whyte (2019) 377 ALR 352; [2019] NSWCA 317 per Basten JA at [13]-[14]. Accordingly, I am satisfied that the plaintiff did not know that a cause of action against Dr Thornley was discoverable until 10 February 2020, and that he ought not have known of that fact before then.

15. [69]

    In determining whether to extend the long-stop limitation period, the Court is obliged to take into account, to the extent that they are relevant, the matters identified in s 62B of the Limitation Act.

16. [70]

    As to the length and reasons for the delay (s 62B(1)(a)), the length is a factor that impacts on Dr Thornley. In my view, neither the plaintiff nor Dr Thornley are responsible for the delay. As to prejudice, the defendant has submitted that the lengthy delay prejudices him in that he does not have an independent memory of the consultation and this is confined to the content of the medical records and correspondence. However, it is also relevant, in my view, that the plaintiff is not in a position to allege actions by Dr Thornley beyond the records and correspondence, since he also has no recollection of what occurred.

17. [71]

    The defendant also made submissions as to loss (s 62B(1)(c)), submitting that since the proceedings against Dr Jaffe have settled, the principle of double recovery will apply, if the limitation period is extended and he succeeds in his claim. In my view, this is not a significant factor against making the order sought.

18. [72]

    Having regard to all the evidence and taking into account that, if Dr Jaffe’s solicitors had produced all relevant records on 15 December 2017 in response to Wyatt’s notice to produce, it is likely that this issue would not have arisen, I am satisfied that it is just and reasonable for the long-stop period to be extended to 23 December 2020.

Orders

1. [73]

   I make the following orders:

   1. (1)

      Pursuant to s 62A of the Limitation Act 1969 (NSW), the long-stop limitation period for the commencement of proceedings by the plaintiff is extended to 23 December 2020.

   2. (2)

      The issue of costs is referred to the Registrar.