STATE RAIL AUTHORITY OF NEW SOUTH WALES v SUNDERLAND [1992] NSWCA 241

STATE RAIL AUTHORITY OF NEW SOUTH WALES v SUNDERLAND SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and SHELLER JJ 7 December 1992, 7 December 1992

[1992] NSWCA 241

LIMITATIONS — whether right of action extinguished — whether equitable and other remedies to restrain late enlargement of defence — held: (dismissing summons): Leave to appeal premature.

Kirby P (Expressing the reasons of the Court for dismissing the summons): The Court is of the opinion that the summons for leave to appeal should be dismissed. The Court is of the view that it would be premature, at this stage, to bring the matter up. There are other discretionary decisions which are, or may still be, to be determined between the parties at first instance.

Necessarily, this decision of the Court does not foreclose any application which the claimant may be advised to make to a judge at first instance to enlarge its defence. Whether or not the claimant seeks to enlarge its defence, whether or not any such application is, upon discretionary grounds, successful or unsuccessful, the claimant may have an entitlement to raise, in any appeal against any final judgment that is recovered by the opponent, its objection which it has sought to raise in this summons for leave to appeal. It may, for example, be able to do so by the modern equivalent of a motion to stay the entry of judgment. That is not a matter upon which the Court will pass today. We have not heard full argument on this matter, upon which argument would certainly be required.

A transcript of argument will be available to the parties. It will reveal the considerations of a discretionary kind which were concerning the Court. Of necessity, the Court's orders do not involve any final determination of the correctness of the decision of Badgery-Parker J.