STATE RAIL AUTHORITY v GAUDRON [1997] NSWCA 297

STATE RAIL AUTHORITY v GAUDRON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and MEAGHER JJA, and BROWNIE AJA 1 May 1997, 12 August 1997

[1997] NSWCA 297

LIMITATION OF ACTIONS — EXTENSION OF LIMITATION PERIOD — LATENT INJURY — LIMITATION ACT 1969 (NSW) s60G, s60I, Sch 5 cl4.

In 1964, when he was eight years old, the respondent sustained serious injuries when his foot was run over whilst he was trying to board a moving train. In July 1993 the respondent filed a statement of claim, and a notice of motion seeking an extension of the limitation period. Christie DCJ dismissed the application for extension of time on the basis of the decision in Dedousis v Water Board (1992) 9 NSWCCR 417. That decision was subsequently overturned by the High Court. In March 1995 the respondent again made application to the District Court seeking an extension of time. Dent DCJ allowed the application in February 1997.

On appeal the appellants appealed on the following grounds:

(1) Dent DCJ erred in thinking that he had power to rehear an interlocutory motion already dismissed by Christie DCJ;

(2) the application for extension heard by Dent DCJ was out of time under Schedule 5, cl4(4) of the Limitation Act 1969 (NSW);

(3) Dent DCJ was in error in finding that the requirements of s60I(1)(a) had been satisfied as: (a) he had taken a significantly wrong date as the expiration of the relevant limitation period; and, (b) his finding in relation to the respondent's "unawareness" within the terms of s60(D(1)(a)(iii) of the Limitation Act was not in accordance with the decision of the High Court in Dedousis v Water Board (1994) 181 CLR 171; and,

(4) Dent DCJ erred in finding the respondent had discharged the onus laid down by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 886.