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. Mr Hislop QC, who appeared for the appellants, submitted that the appeal should be upheld, the order below discharged, and the application for extension of time dismissed. Mr Hislop did so on two bases. First, that the respondent had failed to prove that he suffered any damage during the relevant period of employment from 22 May 1981 up to 30 June 1987, that is to say, the relevant period of employment with both appellants. He relied upon what was said in this Court in BHP Steel AIS Pty Ltd v Burjarovski, (unreported) Court of Appeal, 7 March 1997, at 7-8. There was evidence before his Honour of hearing loss suffered by the respondent, that evidence being a report of 22 May 1981. There was no evidence of measured hearing loss thereafter. During the course of the hearing of the application, the appellants' counsel called for the production of a medical report from an audiologist who Mr Parker said he had consulted. This medical report was not produced. There seems to me no doubt at all that his Honour had no 2 UNREPORTED JUDGMENTS evidence before him to support a claim for damages for hearing loss suffered as a result of any act or omission of the appellants during the six year period of employment to which I have referred. Accordingly, it seems to me that on the application for an extension of time the only order that his Honour could or should have made was an order dismissing the application. Mr Hislop also relied upon what was said in the High Court decision to which I have referred to suggest that there was no sufficient evidence of lack of prejudice to the appellants for the application to be granted. I do not think it desirable to go into that question, and in my opinion, it is unnecessary to do so. It is sufficient that the respondent failed to produce evidence that he had any viable cause of action before the Judge hearing the application. Accordingly, in my opinion, the following orders should be made: 1. Appeal allowed. 2. Set aside the order for an extension of time made by Gallen DCJ on 20 March 1996. 3. The application for an extension of time of 20 September 1993 is dismissed. The respondent to pay the appellants' costs of the appeal, but to have a certificate under the Suitors' Fund Act. There would be no orders as to the costs of the application. Cole JA I agree. Shephard AJA I agree. 1. Appeal allowed. 2. Set aside the order for an extension of time made by Gallen DCJ on 20 March 1996. 3. The application for an extension of time of 20 September 1993 is dismissed. The respondent to pay the appellants' costs of the appeal, but to have a certificate under the Suitors' Fund Act. There would be no orders as to the costs of the application. Counsel for the appellant: J D Hislop QC/G Watson Solicitors for the appellant: Sparke Helmore Counsel for the respondent: A F Puckeridge QC/A Porthouse Solicitors for the respondent: Maurice May & Co