Australia: The importance of good communication

Last Updated: 29 January 2016
Article by Mark Birbeck

Key Points

  • There is no prejudice in extending a limitation period to join a defendant to the proceedings when that person or entity is already a cross-defendant and the evidence against them has already been established.
  • In establishing an entitlement to an interim payment order under section 82 of the Civil Procedure Act 2005 (NSW), the party seeking the order must prove that it is more probable than not that they would recover substantial damages at trial.


Leighee Eastbury (Mrs Eastbury) and Philip Eastbury (Mr Eastbury) are the parents of Hayden and Jacob Eastbury. In the early years following their birth, Hayden and Jacob were diagnosed with Fragile X Syndrome following a test which revealed that they both had a full mutation sized expansion of "Fragile X". As a result of the Fragile X Syndrome, both children suffer from significant speech and language delays, behavioural and language difficulties, and neuro-developmental and physical features of the syndrome. Mrs Eastbury had a family history of Fragile X Syndrome and was referred for genetic testing prior to falling pregnant. The tests were carried out by Genea Limited (Genea), except that Genea used the cytogenetic method of diagnosing Fragile X, rather than the molecular test. In essence, Genea's tests were incapable of determining whether Mrs Eastbury was a Fragile X carrier, they could only determine whether she had the disease. Mrs Eastbury's general practitioner, Dr Ranjana Curtotti (Dr Curtotti) informed her subsequently that the result of the testing was negative. Mr and Mrs Eastbury commenced legal proceedings against Genea and Genea joined Dr Curtotti as a cross-defendant seeking indemnity and contribution from her. Mr and Mrs Eastbury then sought orders that:

  • Dr Curtotti be joined as a second defendant to the proceedings;
  • pursuant to section 60G(2) of the Limitation Act 1969 (NSW) (equivalent to the Limitation Act 2005 in Western Australia), the limitation period be extended to enable Mr and Mrs Eastbury to join Dr Curtotti to the legal proceedings; and
  • pursuant to section 82 of the Civil Procedure Act 2005 (NSW), Genea pay Mr and Mrs Eastbury damages sought to be recovered in the proceedings (interim order).


Pursuant to section 18A of the Limitation Act 1969 (NSW), the limitation period for causes of action founded on personal injury is three years.

Pursuant to section 60G of the Limitation Act 1969 (NSW):

  1. This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.
  2. If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.

Section 60I(1) sets out some considerations for the court in making a decision under section 60G.

Western Australia does not have a section 60G or section 60I equivalent. Rules relating to the extension of limitation periods differ according to the type of cause of action and the age of the plaintiff, These rules can be found in Part 3 of the Limitation Act 2005.

Section 82 of the Civil Procedure Act 2005 (NSW) states that in any proceedings for the recovery of damages, the court may order a defendant to make one or more payments to the plaintiff of part of the damages sought to be recovered in the proceedings. The court cannot make such an order unless it is satisfied that if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant.


Joining Dr Curtotti to the proceedings and extension of time

It was not disputed that the matters listed in section 60I(1) of the Limitation Act 1969 (NSW) have been satisfied. However, Dr Curtotti argued that it was not just and reasonable to extend the limitation period pursuant to section 60G(2). Mr and Mrs Eastbury submitted that there was no prejudice to Dr Curtotti being joined as a second defendant as Genea had already joined her as a cross-defendant and Mr and Mrs Eastbury intended to rely on Genea's evidence against Dr Curtotti (they did not intend to adduce new evidence). Dr Curtotti then attacked the adequacy of the medical evidence against her and argued that being joined as a second defendant is obviously different to being a cross-defendant. The court held that Mr and Mrs Eastbury had an arguable case against Dr Curtotti backed by expert evidence. Further, as Dr Curtotti was already joined to the proceedings, it was unlikely that she would suffer prejudice.

Interim order

Mr and Mrs Eastbury sought an interim payment order from Genea in the sum of $100,000.00 on the basis that they would probably recover substantial damages at trial. Mr and Mrs Eastbury's expert evidence supported the notion that Genea should have carried out molecular testing to diagnose Fragile X and not the cytogenetic method. If Genea was unable to do the molecular test, they should have referred Mrs Eastbury to another laboratory. Genea did not adduce any expert evidence to the contrary, however, it argued that it performed the test it was asked to perform accurately. The reason for Genea's misunderstanding of the purpose of the test was due to the typed Pathology Referral stating "uncle has x-factor Mental Retardation" and omitting Dr Curtotti's handwritten note "genetic testing for carrier status of X-factor". The court found that the former sentence should nevertheless have alerted Genea to the purpose of the test, that is, to determine whether Mrs Eastbury was a carrier. By this reasoning, the court further found that Mr and Mrs Eastbury would probably succeed at trial in recovering substantial damages against Genea.


In relation to the above three issues, the court ordered that:

  1. Dr Curtotti be joined as a second defendant to the proceedings;
  2. The limitation period to join Dr Curtotti to the legal proceedings be extended to 17 December 2015; and
  3. Genea make an interim payment to Mr and Mrs Eastbury in the sum of $100,000.00.

Lessons Learnt

This case highlights that there is no prejudice in extending a limitation period to join a defendant to legal proceedings when that person or entity is already a cross-defendant and the evidence against them has already been established. Furthermore, the case touches on the burden of proof required to be met in establishing entitlement to an interim payment order under section 82 of the Civil Procedure Act 2005 (NSW). Mr and Mrs Eastbury were required to, and did, prove that it was more probable than not that they would recover substantial damages against Genea at trial.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.