Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

Matter No S530/2005

ANDREW BATISTATOS BY HIS TUTOR

WILLIAM GEORGE ROSEBOTTOM APPELLANT

AND

ROADS AND TRAFFIC AUTHORITY OF

NEW SOUTH WALES RESPONDENT

Matter No S531/2005

ANDREW BATISTATOS BY HIS TUTOR

WILLIAM GEORGE ROSEBOTTOM APPELLANT

AND

NEWCASTLE CITY COUNCIL RESPONDENT

Batistatos v Roads and Traffic Authority of New South Wales

Batistatos v Newcastle City Council

[2006] HCA 27

14 June 2006

S530/2005 & S531/2005

ORDER

In each matter, the appeal is dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

Matter No S530/2005

B M Toomey QC with S J Maybury for the appellant (instructed by T D Kelly & Co)

I D Temby QC with C F Hodgson for the respondent (instructed by Crown Solicitor for New South Wales)

Matter No S531/2005

B M Toomey QC with S J Maybury for the appellant (instructed by T D Kelly & Co)

M J Joseph SC with S P W Glascott for the respondent (instructed by Phillips Fox Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Batistatos v Roads and Traffic Authority of New South Wales

Batistatos v Newcastle City Council

Abuse of Process – Delay – Proceedings commenced in 1994 in respect of causes of action which accrued in 1965 – Appellant suffered quadriplegia and other injuries in motor accident allegedly caused by the negligence of, and nuisance created by, the respondents – Appellant born mentally retarded and later orphaned – Applications brought by respondents for summary dismissal or permanent stay for abuse of process – Whether, due to the effluxion of time since the causes of action accrued, a fair trial was not possible for the respondents.

Abuse of Process – Delay – Factors to be considered in determining whether delay precludes the conduct of a fair trial – Whether actions commenced by appellant untenable or futile – Whether actions commenced by appellant present real question to be determined – Sufficiency of evidence – Relevance of fundamental right to bring legal proceedings – Relevance of summarily denying right to a trial – Relevance of appellant's severely disabled condition – Relevance of the extent of the investigations made by the parties – Relevance of the disparity in the economic resources of the parties – Relevance of fact that the 30 year ultimate limitation bar had not yet descended.