BHP STEEL (AIS) LTD v CINQUEGRANA [1997] NSWCA 45

BHP STEEL (AIS) LTD v CINQUEGRANA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, PRIESTLEY and POWELL JJA 3 September 1997, 3 September 1997

[1997] NSWCA 45

Limitations of actions — extension of time — claim in negligence for industrial deafness — whether prejudice to appellant (defendant) in — refusing to extend time — whether just and reasonable to extend time -

Limitation Act 1969, s60G, s60I Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 841 applied

Mason P The respondent suffers deafness contracted during his employment with the appellant. He sues in negligence and has obtained an order extending time to bring a statute-barred claim. This appeal is brought by leave from that order.

The claim for extension of time is made pursuant to s60G of the Limitation Act 1969 as extended by cl4 of schedule 5 of that Act. S60I precludes the making of an order unless the Court is satisfied of certain matters. S60G also requires the Court to decide that it is just and reasonable to extend time before an order can be made. The relevant principles are discussed in BHP Steel (AIS) Pty Ltd and Guidice, Court of Appeal, unreported 7 March 1997.

The respondent has been employed by the appellant since 29 September 1960. Proceedings were commenced by the respondent in the District Court on 11 November 1994 but the respondent's claims in negligence are limited to acts and omissions which occurred between 1960 and 30 June 1987. This is done presumably to preserve any rights the respondent may have under s66 and s67 of the Worker's Compensation Act 1987. Thus the claim relates to acts or omissions occurring up to thirty-four years before commencement of the proceedings, and all acts and omissions sued upon were statute barred before the commencement of the proceedings.

The relevant portion of the judgment of Gallen ADCJ was as follows: