HAINES v HUDSON [NO 1] [1993] NSWCA 128

HAINES v HUDSON [No 1]

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and HANDLEY JJA 30 August 1993, 30 August 1993 [1993] NSWCA 128

LIMITATION OF ACTIONS — extension of time — injuries non latent — primary judge (Newman J) extends time for plaintiff to sue — extension contrary to Electricity Commission of New South Wales v Plumb (1992) 27 NSWLR 364 (CA) later delivered- application out of time for leave to appeal against order — whether time default should be cured — availability of challenge following trial — held: Extension granted — claimant to pay full costs incurred by plaintiff on indemnity basis.

Limitation Act 1969, s60G.

Kirby P Before the Court is a motion for an extension of time within which to bring a summons for leave to appeal from orders of Newman J made on 21 June 1991. On that day Newman J provided an extension of time to Mr Colin Hudson (the opponent) within which to sue the claimant. His Honour proceeded upon the basis that s60G of the Limitation Act 1969 permitted an order to be made extending a limitation period in cases even where the opponent's injuries were not latent.

Subsequently, this Court in Electricity Commission of New South Wales v Plumb (1992) 27 NSWLR 364 (CA) has held to the contrary. An application for special leave to appeal to the High Court of Australia against the decision in Plumb was made but failed. Accordingly, Plumb states the law in this jurisdiction. On the face of things, therefore, the matter is one which attracts leave to appeal. Without more, it seems to provide a strong case for allowing the substantive appeal.

The difficulty which has presented in this matter is the very long period of time that has been allowed to elapse between the judgment of Newman J and this application for an extension of time within which to pursue the application for leave to appeal.