HOLDEN v WYONG SHIRE COUNCIL [1988] NSWCA 65

HOLDEN v WYONG SHIRE COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and PRIESTLEY JJA 10-1 May 1988, 9 June 1988 [1988] NSWCA 65

PRACTICE & PROCEDURE — pleading — motion to amend statement of claim — application to add claim in negligence against local government authority based on events of 1974 — judge rejects amendment as futile on the ground that the claim is statute barred — on appeal, counsel concedes claim not statute barred — seeks to support judgment which followed below upon the ground that proposed cause of action was "obviously untenable" — seeks order for continuance of first trial before original trial judge held: (1) following abandonment of limitation defence by authority, which was the basis of the judgment at the trial, the discretion to refuse amendment miscarried requiring retrial; (2) claim made not so unarguable as to attract jurisdiction to strike out the amended statement of claim under General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125; Mathaman vy Nabalco Pty Ltd (1969) 14 FLR 10 applied; (3) (semble) no power or inappropriate for Court of Appeal to order retrial before a particular judge. Lockyer v Macready & Anor (1965) 66 SR (NSW) 369, 382; Escobar v Spindaleri & Anor (1986) 7 NSWLR 51, 58 distinguished; (4) retrial in the Common Law Division ordered.

LIMITATION OF ACTIONS actions statute barred — whether defence a privilege that may be waived — Limitation Act 1969, s14 — action "not maintainable" whether duty in a court to determine that action is "maintainable" where trial judge has held action statute barred but parties agree that defence on the statute is unavailable held: in the circumstances of the case and having regard to the concession made, the Court could act upon the concession of the party which was the beneficiary of the earlier finding of a limitation bar now not pressed — cases of illegality distinguished — Staniland v Kentucky Homes Pty Limited, unreported, CA, 2 December 1987; (1988) NSWJB 17 referred to.