HOBBS v COSTAIN AUSTRALIA LTD [1996] NSWCA 248

HOBBS v COSTAIN AUSTRALIA LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, HANDLEY JA and COLE JA 24 July 1996

[1996] NSWCA 248 LIMITATION OF ACTIONS — extension of time under Limitation Act 1969 s 601.

The plaintiff who suffered from industrial deafness had been employed continuously by the defendant since 1971. He applied for an extension of time under s 60 G of the Limitation Act 1969. The trial judge found on the facts that the plaintiff had not satisfied the provisions of s 601 of the Act and refused the application. The appellant contended that the trial judge had misunderstood or misapplied s 60I(1)(b) with respect to the 3-year period therein relevant to cl 4(4)(a) of Sch 5 of the Act.

HELD, dismissing the appeal: No error had been established.

Handley JA. This is an appeal by leave of this Court granted on 28 August 1995 from a decision of McDevitt DCJ refusing an application by the appellant for an extension of the limitation period under s 60G of the Limitation Act in an industrial deafness case.

The plaintiff has been employed by the defendant continuously since 1971. His Honour was not satisfied on the facts that the plaintiff had brought himself within the provisions of s 60I(1)(a) of the Act. This was a necessary pre-condition in this case for the making of any order extending the limitation period, the application having been made on 12 May 1995.

Mr Robison did not directly challenge the primary Judge's findings of fact on those matters, but submitted that his Honour's approach had miscarried because he had misunderstood or misapplied s 60I(1)(b).

It seems to me that his Honour was correct in his interpretation of s 60I(1)(b), and that the plaintiff did have to bring his case within the 3 year period therein referred to, which was relevant because of cl 4(4)(a) in the 5th Schedule.