MARKARIAN v WOOLWORTHS LTD [1995] NSWCA 273

MARKARIAN v WOOLWORTHS LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE and POWELL JJA and BADGERY-PARKER AJA 27 October 1995, 7 November 1995

[1995] NSWCA 273

LIMITATION OF ACTIONS — PERSONAL INJURY — PRINCIPLE OF FINALITY IN INTERLOCUTORY APPLICATIONS — MISCARRIAGE OF JUSTICE — LIMITATION ACT 1969 (NSW) S60F, S60I

FACTS

The claimant first noticed hearing difficulties some time in the period between 1980 and 1982. In March 1984, she learnt that she was suffering from a 43.9 per cent loss of hearing in the left ear and 21.4 per cent in the right ear. In 1985, she was awarded compensation for this loss of hearing.

In 1992, she first learnt that she had an 82.3 per cent hearing loss in her left ear and 23.3 per cent in her right ear.

His Honour applied s60F of the Limitation Act 1969 and dismissed the claimant's application for an extension of time.

HELD

His Honour erred in deciding that the claimant became statute barred at about the beginning of 1986: Colorado v Haden Engineering Pty Ltd and Anor (New South Wales Court of Appeal, 6 November 1995, unreported) followed.

Since his Honour handed down his judgment, Dedousis v The Water Board (1994) 181 CLR 171, was handed down by the High Court. A claimant now has to satisfy the requirements laid down in s60I of the Limitation Act. Sinclair J did not directed his attention to the inquiry under s60I(1)(a)(iii) and hence did not apply the correct legal principles in reading his determination.

In the interests of justice, the Court should grant leave to appeal and allow the appeal. Colorado was followed. Since the correct issue was never addressed this Court is unable finally to deal with the application and the proceedings should be remitted for determination in accordance with the law.

Clarke JA Ziazan Markarian, the claimant, has applied for leave to appeal froma judgment of Sinclair DCJ dismissing his application for an extension of time pursuant to s60G of the Limitation Act 1969 ("the Act"). The application was heard during a special list and one of the orders made at the time of listing was that the court should also hear full argument as though the proceeding was an appeal with the intent that if the court thought that the application should be granted it would finally dispose of the appeal.