BARLOW v HOMEBUSH BAY DEVELOPMENT CORPORATION [1995] NSWCA 39

BARLOW v HOMEBUSH BAY DEVELOPMENT CORPORATION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE and POWELL JJA and BADGERY-PARKER AJA 29 October 1995, 6 November 1995

[1995] NSWCA 39

LIMITATION OF ACTION — Limitation Act 1969, s60G, s60I — Dedousis v The Water Board (1994) 181 CLR 171, Colarado vy Haden Engineering Pty Ltd (NSW Court of Appeal, unreported to November 1995) followed.

LIMITATION OF ACTIONS — Limitation Ant 1969, s60G, s60I District Court judge applied Dedousis vy The Water Board (New South Wales Court of Appeal, unreported 20 August 1993) — reversed, Dedousis v The Water Board (1994) 181 CLR 171. Colarado vy Haden Engineering Pty Ltd (New South Wales Court of Appeal, unreported 6 November 1995) followed — application remitted to District Court for rehearing.

Clarke JA For the reasons given by Badgery-Parker AJA in this case and for reasons analogous with those I gave in Colorado v Haden Engineering Pty Ltd and Anor (New South Wales Court of Appeal, 6 November, 1995, unreported) I agree with the orders proposed by Badgery-Parker AJA.

Powell JA I agree with Badgery-Parker AJA.

Badgery-Parker, AJA The plaintiff, Barry Barlow, was employed by the defendantcontinuously from 1977 until 1988. By his statement of claim filed on 29 March 1993, he alleges that by reason of exposure to excessive noise levels during the course of his employment, he suffered damage to his hearing. On 13 August 1993, he applied pursuant to s60G of the Limitation Act for an extension of the time within which he might bring his action against the defendant. That application was dismissed by His Honour Judge Patten on 22 November 1993 and the plaintiff now seeks leave to appeal.

At the time that that application was heard, the relevant law was established by the decision of this court in Dedousis v The Water Board (unreported 20 August 1993) subsequently reversed by the High Court (Dedousis v The Water Board (1994) 181 CLR 171.