SPADOTTO AND CO PTY LTD (IN LIQUIDATION) v RABER [1995] NSWCA 442

SPADOTTO AND CO PTY LTD (IN LIQUIDATION) v RABER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and POWELL JJA

24 October 1995, 27 October 1995

[1995] NSWCA 442

LIMITATION ACT — AWARENESS OR NON-AWARENESS OF PLAINTIFF

LIMITATION ACT — whether the lack of knowledge and non-awareness referred to in s60I(1)(a)(iii) must be those of the plaintiff himself or herself or whether knowledge of plaintiff's solicitor can be imputed to plaintiff — exercise of discretion

under s60G. Held: para(iii) speaks of actual state of lack of knowledge and non-awareness of plaintiff; no error in exercise of discretion; appeal dismissed.

Priestley JA Spadotto and Co Pty Ltd (in liquidation) (the appellant) employed Mr D Raber (the respondent) from November 1983 to May or June 1985.

By notice of motion in the District Court dated 30 August 1993 the respondent sought orders that the period during which he might commence proceedings against the appellant and two other past employers be extended. His Honour Judge Kirkham decided the motion on 16 June 1995. Inter alia, he ordered that the limitation period for the cause of action against the appellant be extended. This is the only aspect of his decision of the motion that is relevant to this appeal.

Leave to appeal was granted to the appellant on 4 September 1995.

In the appeal the appellant made submissions under two heads. Under the first it was said that Kirkham DCJ had been wrong in holding that the respondent was, at the relevant time, "unaware of the connection" within the meaning of s601(1)(a)(iii) of the Limitation Act 1969 (the Act), "between the personal injury" for which he wished to claim damages from the appellant and the appellant's "act or omission". Under the second head it was submitted that Kirkham DCJ had erred in his application of s60G(2) of the Act.