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. The respondent should be protected in case the application before the High Court of Australia is successful and the decision in Plum is overturned. Save for that protection, the result following Plum is that the present appeal must be allowed. A submission was put to the Court that a special order should be made in respect of costs, having regard to the delay in the prosecution of the appeal. It is true that the appeal was prosecuted somewhat belatedly. However, the leave to appeal was granted on 30 August 1993. The respondent has had since that time to formulate his position as it was announced before this Court today. The delay on the part of the respondent in formulating his position has prevented the matter 2 UNREPORTED JUDGMENTS being disposed of otherwise than on the hearing. In those circumstances, in my view, the ordinary cost order should be made. Noting the formal submission of the respondent to which I have referred, I would propose that the following orders be made by this Court: 1. That the appeal be allowed; 2. That the order of Newman J dated 21 June 1991, extending the limitation period, be set aside; 3. That the proceedings be remitted to the Common Law Division of the Court; and 4. That the respondent pay the costs of the appeal but have, in respect thereof, a certificate under the Suitors Fund Act 1951. Mahoney JA I agree with the orders proposed by the President. Priestley JA I also agree. Kirby P The orders are therefore as I have provided. 1. Appeal allowed; 2. The order of Newman J dated 21 June 1991, extending the limitation period, set aside; 3. The proceedings be remitted to the Common Law Division of the Supreme Court; and 4. The respondent pay the costs of the appeal but have, in respect thereof, a certificate under the Suitors' Fund Act 1951. Counsel for the Appellant: AJ Bartley Instructed by: Hickson, Lakeman and Holcombe Counsel for the Respondent: RJ Goodridge Instructed by: Stacks