ASSOCIATION OF EMPLOYERS OF WATERSIDE LABOUR v CORBETT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, HANDLEY and SHELLER JJA 9 April 1992, 28 April 1992 [1992] NSWCA 12 LIMITATION OF ACTIONS — power to extend limitation period — effect of Limitation (Amendment) Act 1990 — no power to extend limitation period in respect of existing causes of action under transitional provisions in cases of non-latent injury. The respondent while employed by the appellant was injured on a wharf on 12 August 1983. On 12 June 1986 he commenced proceedings for damages against the Maritime Services Board as the occupier of the wharf. In June 1991 he applied under the Limitation (Amendment) Act 1990 for an extension of the limitation period in respect of the cause of action against his employer. The Master followed Plumb v Electricity Commission of New South Wales and granted the extension. On appeal the Judge ordered under RSC Pt12 R2 that the proceedings be removed to the Court of Appeal for decision of the question whether Plumb v Electricity Commission of New South Wales was correctly decided. Held: Plumb v Electricity Commission wrongly decided. Mahoney JA This matter was considered at the same time as the Court consideredthe appeal in The Electricity Commission of New South Wales v Plumb. In the Plumb proceeding I detailed my views as to the construction of the relevant provisions. For those reasons and for the reasons set forth in the judgment of Handley JA, I agree with the orders which his Honour proposes. Handley JA On 12 August 1983 the respondent was employed by one or other of the present appellants. He was injured while working at No 6 Wharf Darling Harbour when he slipped on some oil that had been left lying on the wharf. He suffered an injury to his ankle. The respondent's injury was in no sense latent. In September 1985 he consulted his present solicitors and instructed them to commence proceedings against the Maritime Services Board. On 12 June 1986 the respondent commenced proceedings by statement of claim against the Board suing it as the occupier of the wharf where he was injured. Those proceedings have not yet been heard. By notice of motion filed during June 1991 and amended on 6 September the respondent sought an order extending the limitation period to permit the joining of the present appellants as additional defendants in the proceedings against the Board. The notice of motion was heard by Master Malpass. In the result, as the Master recorded in his judgment, the plaintiff only sought relief pursuant to s60G(2) and Sch 5 of the Limitation Act added by the 1990 amendments on the basis that his injury was not latent. Before the Master the plaintiff relied upon the then recent decision of McInerney J in Plumb v Electricity Commissioner of New South Wales, judgment in which had been given on 6 August. The Master, as he was bound to do, followed this decision. He held that it was just and reasonable to grant an extension of the limitation period, and ordered that the period for the causes of 2 UNREPORTED JUDGMENTS action against the proposed second and third defendants in the proceedings be extended up to and including 11 November. The respondents appealed to a Judge. In their notice of appeal they contended that Plumb v Electricity Commission was wrongly decided. In these circumstances an order was made on 6 December 1991 pursuant to RSC Pt12 R2 for the proceedings to be removed to the Court of Appeal "the question to be decided whether Plumb v Electricity Commission of New South Wales (N 300262/89) was properly decided." The Court listed the proceedings with the appeal in Electricity Commission v Plumb and both cases were heard together, judgment being reserved. The Court has today delivered its reserved judgment in Electricity Commission v Plumb and allowed the appeal. For the reasons given in the judgments in that case I would answer the question reserved no. In my opinion the following orders should be made: 1. Question reserved answered no and declare that Plumb v Electricity Commission of New South Wales (N 300262/89) was not properly decided. 2. Remit the proceedings to the Common Law Division for determination. 3. Order that the costs of the reference to this Court be costs in the proceedings in the Common Law Division. Sheller JA I have had the benefit of reading the judgment of Handley JA and agree with it and the orders therein proposed. 1. Question reserved answered no and declare that Plumb v Electricity Commission of New South Wales (N 300262/89) was not properly decided. 2. Remit the proceedings to the Common Law Division for determination. 3. Order that the costs of the reference to this Court be costs in the proceedings in the Common Law Division. Counsel for Appellant: J McCONACHIE QC/R WOOD Instructed by: WK CHAMBERS - SOLICITOR for GIO Counsel for Respondent: A PUCKERIDGE QC/K ANDREWS Instructed by: GH HEALEY and Co