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. Limitation Act 1969, s60C, s60E. Kirby P The Court has before it a summons for leave to appeal from a decision and orders of Kennedy-Smith A-DCJ given in the District Court on 16 September 1994. The proceedings before his Honour concerned an application for an extension of time e within which Ms McNeilly, the opponent, could sue the Council of the Shire of Sutherland. Ms McNeilly's application arose out of an incident which occurred on 15 February 1991 at 6.30 am when the opponent was riding her bicycle along Sutherland Road, Jannali. The bicycle hit the edge of a pothole. This caused Ms McNeilly to fall and to suffer a number of significant injuries. She lost consciousness. She suffered concussion. She received injuries to the upper maxilla, upper palette, cuts to the inside of the lip, soft tissue injury, shock and other consequences. She was taken by ambulance to the Sutherland Hospital where she underwent surgery. Ms McNeilly consulted a solicitor on 5 April 1991. However, according to her evidence which was received in an affidavit by Kennedy-Smith A-DCJ, she consulted her local Member of Parliament before doing so. The local Member of 2 UNREPORTED JUDGMENTS Parliament notified the Council of the mishap. Accordingly, in February 1991, the Council was fully aware of the incident that had befallen Ms McNeilly and in respect of which she was later to seek leave to sue. The Council at no stage has suggested that any actual prejudice was suffered by it by reason of the late commencement of proceedings by Ms McNeilly. It further appears that Ms McNeilly consulted counsel in July 1991. She saw her solicitor again in November 1991. However, between 1992 and 1993 she took no proceedings to commence an action against the Council. The relevant period under the Limitation Act 1969 expired on 15 February 1994. It was not until May 1994 that the opponent again consulted her solicitors with a view to prosecuting her claim. She then commenced the proceedings which came before Kennedy-Smith A-DCJ. The application was for an extension of time under s60C(2) of the Limitation Act 1969. That section provides for an extension of time where the period in question, although beyond the limitation period, does not exceed five years. The judge is given a wide power to extend time where it is "just and reasonable" to do so. Kennedy-Smith A-DCJ determined that the extension of time should be granted. He did so in reasons which were quite brief: "Tt seems to me that this is, overall, a proper case to extend the limitation period, notwithstanding a delay of some seven months after the expiration of the limitation time. There is no real additional prejudice to the defendant and there was some difficulty for the plaintiff in obtaining expert advice on causation. In my view, such application should be brought very promptly, as soon as it is noticed that the limitation time has been exceeded. So, having regard to the other matters in s60E(I) and all the circumstances, I am minded to grant the orders sought in the notice of motion, except that I do not extend it to the date nominated. I think this matter should be prosecuted promptly and diligently hereafter for the benefit of both parties and the Court. I am prepared to grant a further fourteen days within which to file a statement of claim against the defendant That extension of the limitation period will expire at 4pm on Friday 30 September. If it is not done by that date, you will have some difficulty getting another notice of motion on." The summons sought leave to appeal upon two essential bases. The first was that his Honour did not state reasons sufficiently, to the standards required by the law and, secondly, it was said that his Honour had not - or had not sufficiently made reference to the list of factors provided in s60E of the Limitation Act as the factors relevant to the consideration of an application for extension under s60C of the Act. In my view, neither of these points has substance. So far as the first is concerned, the claimant referred to the decision of the Court in Apps and Anor v Pilet (1987) 11 NSWLR 350 (CA), 352f. However, that decision was, in turn, simply an application of the well-established principles of this Court stated in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA). In that case it was made clear that detailed reasons are not required in every case. It is sufficient for the judge to give the grounds for his or her decision. See ibid 279; Apps (above) at 356f. When the reasons of Kennedy-Smith A-DCJ are examined, it is clear that his Honour referred to the lack of prejudice and to all the circumstances of the case. That must be taken to include the unchallenged affidavit of the opponent. In her affidavit Ms McNeilly said: URJ COUNCIL OF THE SHIRE OF SUTHERLAND v McNEILLY (Powell JA) 3 "After my conference with Mr O'Brien I instructed him on the 3rd May 1994 that it was my wish to commence proceedings in the District Court of New South Wales against the Sutherland Shire Council seeking damages. I say that the extensive nature of my injuries and disabilities and the emotional trauma that I suffered as a result of the accident is why there has been a delay in my giving instructions to commence proceedings. I have since the accident been focussed on my physical and emotional recovery and the commencement of proceedings was not in the forefront of my mind. I have not felt well enough until this year to further instruct my solicitors." As these statements were not challenged and would readily have been in the mind of Kennedy-Smith A-DCJ, it is inconceivable that his Honour would not have taken them into account in his references to "the circumstances". Indeed, it is possible that a failure to take into account the untested assertions of the claimant as to the reasons for her not proceeding might have constituted error on his part. There is, therefore, no substance in the first point. As to the second point, the complaint is that the Judge did not refer, in terms, to para(c), para(d), para(e) and para(f) of the facts which are referred to in s60E(1) of the Act. He did refer, albeit briefly, to the considerations mentioned in the other paragraphs in the subsection. In my view, along with Clarke JA, who expressed this opinion during argument, it would have been completely unnecessary for his Honour to refer to the factors (c), (d), (e) and (f) because each of them was irrelevant to the facts of the particular application which was before his Honour. The opponent knew the time and nature of the injury, and the time she fell off her bicycle. It would have required an excess of enthusiasm on his Honour's part, in reasons which were brief, to have referred to all of those considerations given that on no view were they determinative of this particular application. I have, therefore, in reasons which are longer than those the primary judge gave, indicated why it was open to his Honour to come to the conclusion that he did. In my view, that conclusion was open to his Honour in the exercise of a very broad discretion granted by the statute and having regard to the lack of prejudice, the untested and unchallenged evidence of the opponent, and the other considerations that were before him. I do not consider that this is a case that justifies leave to appeal. If leave had been granted, the fate of the appeal would have been inevitable. The decision of the Judge was a discretionary one. This Court should not interfere in such decisions except in clear cases involving error of principle. The summons for leave should be dismissed with costs. Clarke JA The application must fail for the simple reason that the applicant has failed to throw any doubt upon the correctness of the judgment in question. Powell JA I agree that the summons should be dismissed with costs. The order of the Court is that the summons is dismissed with costs. Counsel for the Claimant: D J Russell Solicitor for the Claimant: Henry Davis York Counsel for the Opponent: P S Jones Solicitor for the Opponent: Fox O'Brien Maker Sommerville