THE COUNCIL OF THE SHIRE OF SUTHERLAND v McNEILLY [1994] NSWCA 72

COUNCIL OF THE SHIRE OF SUTHERLAND v McNEILLY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and POWELL JJA 12 December 1994, 12 December 1994

[1994] NSWCA 72

LIMITATION OF ACTIONS — extension of time to sue — young bicyclist — notification of claim — proceedings within five years — whether "just and reasonable" to extend — adequacy of primary judge's reasons — not necessary to refer to statutory considerations irrelevant, uncontested or not significant to the contest — held: Leave refused.

JUDGMENTS AND ORDERS — reasons — adequacy of — Apps and Anor v Pilet (1987) 11 NSWLR 350 (CA), explained.

LIMITATION OF ACTIONS — personal injury claim — young plaintiff injured when bicycle hits pothole allegedly caused by negligence of local authority — plaintiffs complaint to local MP notified immediately to local authority — plaintiff sees lawyers — delays in commencement of proceedings — proceedings out of time — motion to District Court within five years of accident for extension of time within which to sue — primary judge (Kennedy-Smith A-DCJ) grants extension — on summons for leave to appeal to the Court of Appeal — held (dismissing the summons): (1) The primary judge's reasons adequately expressed the grounds for his decision, being the absence of prejudice, the early notice and the unchallenged evidence of the plaintiff as to her physical and emotional disturbance; (2) It was not necessary for the judge to refer expressly to all of the paragraphs of s60E(1) of the Limitation Act 1969 where the considerations in such paragraphs were either irrelevant, uncontested or otherwise adequately referred to by general reference to "the circumstances"; (3) Summons dismissed with costs.

JUDGMENTS AND ORDERS — judge's reasons — adequacy — sufficient to express the grounds for the decision. Soulemezis vy Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA) and Apps and Anor v Pile (1987) 11 NSWLR 350 (CA), applied.