COAL AND ALLIED OPERATIONS PTY LTD AND ANOR v PARKER [1997] NSWCA 65

COAL & ALLIED OPERATIONS PTY LTD & ANOR v PARKER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER and COLE JJA, and SHEPPARD AJA 21 August 1997, 21 August 1997

[1997] NSWCA 65

Sheller JA Ex tempore This is an appeal pursuant to leave granted by the Court on 16 August 1996 against a judgment of Gallen DCJ in the District Court given on 20 March 1996.

The appellants were the defendants in proceedings commenced by the respondent, Ian Gordon Parker, in the District Court by a statement of claim filed on 31 August 1993. The respondent claimed damages for loss of hearing alleged to have been suffered during a period of employment with the appellants, in the case of the first appellant between 22 May 1981 and 13 June 1984, and in respect of the second appellant from 13 June 1984 up to 4 pm on 30 June 1987, which was the cut-off date for the claim made by Mr Parker.

The appellants raised the statute of limitations as a defence to the claim, which led to Mr Parker's application by notice of motion of 20 September 1993 for an extension of time pursuant to s60G of the Limitation Act. Gallen DCJ granted the application, and it is from that grant that this appeal is brought. The grounds of appeal related to the exercise of his Honour's discretion under s60G (2) of the Limitation Act, which enables the Court to extend the limitation period if it decides that it is just and reasonable to do so. In exercising this discretion, his Honour was concerned with the prejudice that it was claimed would be suffered by the appellants if the extension was granted. On the appeal being called on for hearing today, Mr Puckeridge QC conceded that his Honour's discretion miscarried in that he engaged in a weighing process rather than approaching the matter in the appropriate way now described by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866. Mr Puckeridge submitted that this being so, the Court should now re-exercise the discretion itself or, alternatively, remit the matter to the District Court for reconsideration of the application for extension of time.