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. Read before the Court today was an affidavit of Stephen Firth, solicitor. That affidavit sets out the numerous steps which have been taken in reliance upon the orders of Newman J, and on the fact that it was not immediately appealed. Considerable costs have been incurred. The matter was set down for substantive arbitration on 3 September 1993. The costs which have been incurred, and the inconvenience to the opponent, are certainly matters which this Court must take into account in considering whether to cure the time default. The claimant indicated that he did not wish to be heard to excuse the circumstances of the delay. Nor did he dispute the costs that have been incurred by the opponent since the orders were made by Newman J. Notwithstanding the delay, it seems to me that it is appropriate to allow the extension of time upon the footing that those costs which have been incurred are to be paid by the claimant on an indemnity basis. I come to that view because it would be open to the claimant, if the Court were now to refuse the extension of 2 UNREPORTED JUDGMENTS time, to raise in resistance to any final judgment in favour of the opponent, the point which would be raised in the substantive appeal from Newman J's judgment pursuant to leave. Upon that footing, it would be fruitless for the matter to proceed to hearing without the benefit of the point. This is an occasion which provides the Court with an opportunity to cure the delay. It may do so upon the just basis that the claimant pay the costs that have been incurred by the opponent since the orders of Newman J were made. For those reasons the orders which I propose are: 1. Extend the time within which the claimant may seek leave of this Court to appeal from the orders of Newman J dated 21 June 1991 until this date; 2. Grant leave to appeal; 3. Stand over the hearing of the appeal to a date to be fixed by the Registrar after consultation with the parties; 4. Order that the claimant pay on an indemnity basis all costs that have been incurred by the opponent in connection with the proceedings at first instance from 21 June 1991 to date; 5. Order that the claimant pay the opponent's costs of the motion and on the summons for leave to appeal such costs to be paid on an indemnity basis. Mahoney JA I agree. Handley JA I agree. Kirby P. Because the point that has been raised in these proceedings appears on its face to be a compelling point, the Court gave some consideration as to whether or not it would be appropriate to proceed forth to allow the appeal. However, we have not heard full argument on the point. There is potentially a person who has an interest in the point, namely, the solicitor who formerly acted for the opponent. It is possible, in the light of the developments which have occurred today, that the opponent would wish to take action against that solicitor. If such action were taken, it would be possible that the solicitor will wish to notify his professional indemnity insurer and to take advice. It is therefore appropriate that the appeal should not proceed immediately. The claimant should have a period of twelve weeks within which to file the notice of appeal which is now permitted by the orders that the Court has made. Accordingly, I propose that, in addition to the orders previously announced, there be added an order: 6. That the claimant have until Monday, 1 November 1993 at 4 p.m. within which to file an appeal pursuant to the leave which the Court has this day granted. Mahoney JA: I agree. Handley JA: I also agree. Kirby P: The foregoing are the orders of the Court. 1. Extend the time within which the claimant may seek leave of this Court to appeal from the orders of Newman J dated 21 June 1991 until this date; 2. Grant leave to appeal; 3. Stand over the hearing of the appeal to a date to be fixed by the Registrar after consultation with the parties; URJ HAINES v HUDSON [No 1] (Kirby P) 3 4. Order that the claimant pay on an indemnity basis all costs that have been incurred by the opponent in connection with the proceedings at first instance from 21 June 1991 to date; 5. Order that the claimant pay the opponent's costs of the motion and on 5 the summons for leave to appeal such costs to be paid on an indemnity basis; and 6. That the claimant have until Monday, | November 1993 at 4 p.m. within which to file an appeal pursuant to the leave which the Court has this day granted. Counsel for the Claimant: JA McIntyre Instructed by: Hickson, Lakeman and Holcombe Counsel for the Opponent: DL RonzaniInstructed by: Stacks The Law Firm253545