TRAU v UNIVERSITY OF SYDNEY [1994] NSWCA 316

TRAU v UNIVERSITY OF SYDNEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MEAGHER JJA and COLE J 28 November 1994

[1994] NSWCA 316 Mahoney JA

(SUMMONS)

The applications before the Court are two, an application for extension of time to lodge an application for leave to appeal and a consequent application for leave to appeal.

The application for extension of time arises from circumstances which have (been discussed in argument and I shall not canvass them in detail. They arise from the fact that on 17 March 1994, Smart J refused the plaintiff (as I shall call him) Dr Trau, leave to file an eighth amended statement of claim. There were, it is said from the Bar table without dissent, two or three versions of that amended statement of claim which had been proffered before his Honour. His Honour, having considered the amended statement of claim, refused leave to file it. He did this for at least two reasons. First, because he did not accept that it was arguable that any of the relevant terms pleaded in paral0 of the statement of claim could be inferred from the circumstances of the matter and, secondly, that there was no arguable case, that is one that could succeed, because the limitation period for the bringing of the proceedings had expired before the cause of action had been pleaded.

No application for leave to appeal was brought against that interlocutory order, but subsequently on 24 March 1994 Smart J made orders which effectively, as has been suggested from the Bar table, put an end to the proceeding. This was done on a summary judgment application.

On 21 April 1994 a notice of appeal against the order made on 24 March 1994 was in fact lodged. That notice of appeal was defective in that the order that had been made on 24 March 1994 was an order which required leave to appeal before the appeal could be lodged. That subsequently was held by this Court on 22 August 1994.