HAINES v HUDSON [1994] NSWCA 119

HAINES v HUDSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBYP, MAHONEY and PRIESTLEY JJA 3 February 1994, 3 February 1994

[1994] NSWCA 119

LIMITATION OF ACTIONS — personal injuries — latent injury disease or impairment — extension of time granted by Newman J — subsequent decision in Electricity Commission of New South Wales v Plum (1992) 27 NSWLR 364 (CA) invalidates extension — on appeal (by leave) against order — held: (1) Applying Plum the appeal must be allowed; (2) Proceedings remitted to the Common Law Division for consequential orders in the action.

Limitation Act 1969, s60G.

Kirby P Before the Court is an appeal from Newman J. His Honour on 21 June 1991 made orders pursuant to the Limitation Act 1969 s60G extending until 18 August 1988, the time of the limitation period for the cause of action set out in the respondent's amended statement of claim.

Subsequently the appellant sought leave to appeal to this Court. Such leave was granted by the Court, differently constituted, on 30 August 1993. The appeal is before this Court today for disposal.

Following Newman J's decision and orders, this Court delivered its decision in Electricity Commission of New South Wales v Plum (1992) 27 NSWLR 364 (CA). It is conceded, properly in my view, that the decision of Newman J cannot stand with Plum.

Plum was the subject of an application for special leave to appeal to the High Court of Australia. That application was rejected by the High Court. Accordingly, in a number of cases this Court has proceeded to apply Plum as establishing the law of this State. However, the Court has been informed that there is before the High Court of Australia at present a fresh application for special leave to appeal, in other proceedings, in which the correctness of Plum may again be agitated.

For that purpose the respondent to the appeal formally submits to the Court that Plum was incorrectly decided. That formal decision is made in order to protect the position of the respondent. No other submission was made. It was conceded, as I have said, that if Plum stands the appeal must be allowed and, indeed, that the action at first instance, which is otherwise out of time must be dismissed.