FITZGERALD v BANKSTOWN CITY COUNCIL [1995] NSWCA 149

FITZGERALD v BANKSTOWN CITY COUNCIL

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 149

LIMITATION OF ACTIONS — Limitation Act 1969, s60G, s60I — Dedousis v The Water Board (1994) 181 CLR 171, Colarado v Haden Engineering Pty ltd (NSW Court of Appeal, unreported 6 November 1995) followed.

LIMITATION OF ACTIONS — Limitation Act 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 This is an application for leave to appeal against the decision of his Honour Judge Herron, QC, in the District Court, refusing the claimant's motion for an extension of time within which to sue the opponent for damages in respect of noise induced hearing loss allegedly due to negligence.

The reasons advanced for the grant of leave are inextricably bound up with the merits of the appeal, and accordingly the court heard argument upon the merits without first resolving the question of leave. For reasons which will appear, I have reached the conclusion that leave to appeal should be granted, that the appeal should be allowed, and that the matter should be returned to the District court for re-hearing.