BONDS INDUSTRIES LTD v MATTIUSSI [1996] NSWCA 54

BONDS INDUSTRIES LTD v MATTIUSSI

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and COLE JJA

23 July 1996, 23 July 1996

[1996] NSWCA 54

EXTENSION of time — no question of principle.

Cole JA The respondent worker filed a Statement of Claim on 31 August 1993 claiming damages for deafness allegedly caused by the appellant which was her employer for a period of about 12 months in 1969 and 1970, and another employer, VDK Investments Pty Ltd. Also filed was a Notice of Motion dated 30 August 1993 seeking an extension of time to bring proceedings pursuant to s60G, Limitation Act, 1969.

Judge McLachlan thought on his then understanding of the law that he had no option but to grant the application.

The evidence disclosed that the respondent worker worked in noisy premises of the appellant in 1969 and 1970, and in noisy premises of two other companies, one preceding and one during the five years succeeding her employment with the appellant.

In 1982, in consequence of a social incident, she had her hearing tested. She was advised that she was suffering from deafness, and that the deafness was a result of working in noisy factories.

The respondent has not at this point of time taken steps in the existing action against the second defendant, VDK Investments Pty Ltd which is in liquidation. Whether it will be able to take any steps effectively against that defendant is unclear.

The law in relation to the grant of applications for extensions of time has now been clarified by the High Court in the decisions Dedousiss v The Water Board, ! and Harris v Commercial Minerals Ltd? It is now clear that an applicant must endeavour to satisfy the requirements of s60I, and if the applicant is successful in so doing, then must pass through the barrier of s60G.

Satisfaction of the requirements of s60I does not necessarily mean that the just and reasonable test referred to in s60G will be satisfied, see the decision in Dedousis and the decision of this Court in Drayton Coal Pty Ltd v Drain3.