McINTYRE v MANGAN and ANOR [1996] NSWCA 354

McINTYRE v MANGAN and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and POWELL JJA 30 April 1996, 30 April 1996

[1996] NSWCA 354

Application for extension of time s43, s44, s52 of Motor Accidents Act, 1988 - approach of Court to such applications — prejudice to both parties to be considered — application of principles of natural justice and denial of procedural fairness.

FACTS:

Appellant sought extension of time under s52.4 of the Motor Accidents Act, 1988.

Held:

By Meagher JA, Clarke and Powell JJA agreeing:

(1) Under Motor Accidents Act, 1988 the time limit to bring a claim is three years, which period is determined by the reading of s43, s44, s52 and s146.

(2) When asked to consider an extension of time application, the Court first considers the explanation for delay and secondly, considers the prejudice to each party consequent upon the delay.

(3) The prejudice to the defendant/respondent did not involve the loss of, nor damage to, any evidence nor the escape of any witness from the jurisdiction. In such circumstances it is not easy to make out prejudice to the defendant/respondent.

(4) In accordance with the principles of natural justice, Downs DCJ was not in a position to disbelieve the explanation of delay given by the plaintiff/appellant in his affidavit upon which he was not cross-examined.

>ORDERS:

1. The appeal should be allowed with costs.

2. The orders made by Downs DCJ should be set aside, except as to costs.

3. The appellant should have leave pursuant to s52 subs4 of the Motor Accidents Act, 1988 to commence within one month of the date of the order of this Court, proceedings claiming damages arising out of a motor vehicle accident in which he was involved on 31 January 1989.

4. The respondents should, if qualified, have a certificate under the Suitors Fund Act 1951 in respect of the costs of the appeal.