ELEFTHERIOU v WATER BOARD [1991] NSWCA 91

ELEFTHERIOU v WATER BOARD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and HANDLEY JJA 26 April 1991, 17 May 1991

[1991] NSWCA 91

INFERIOR COURTS — District Court — appeal to Supreme Court — from what decisions — ruling, order, direction or decision "in an action" — no appeal from proceeding "ancillary to action" — District Court Judge (Walsh A-DCJ), pursuant to motion filed in court in the action and at the hearing of an action, extends time within which plaintiff may sue the defendant pursuant to Limitation Act 1969, 8 58(2) — judge gives reasons for extension in the course of giving his reasons for judgment in favour of plaintiff in the action — defendant appeals to Court of Appeal from that judgment — notice of appeal includes grounds challenging correctness of the order extending time — motion by plaintiff to dismiss appeal an incompetent — held: (1) (by the Court): Generally, in an appeal, a party may challenge the final judgment upon the ground of any error in an anterior or ancillary or interlocutory order or ruling. Bunning v Cross (1978) 141 CLR 54, 82; Smith v Tabain (1987) 10 NSWLR 562, 566 applied; (2) (per Clarke and Handley JJA; Kirby P dissenting): However, a motion for extension of the limitation period is, under the District Court Rules, an originating motion which is separate from, although ancillary to, the action. It is thus not competent to appeal from it in an appeal "in an action"; (3) Accordingly, the purported grounds of appeal challenging the decision to extend the limitation period were incompetent and should be struck out. Clutha Developments Pty Limited v Barry (1990) 18 NSWLR 86 applied.

District Court Act 1973, s128(2A). District Court (Amendment) Act 1990, s3, Schedule 1, para 1(a) and (b). Limitation Act 1969, s57,s58. District Court Rules, Pt5, Division 3.