SUMESS PTY LTD v NOLAN [1997] NSWCA 299

SUMESS PTY LTD v NOLAN SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY and BEASLEY JJA

27 October 1997

Handley JA. Mr Mater has moved for leave to appeal from the decision of Delaney DCJ given on 18 July 1997 to extend the 3 year limitation period under s 60C of the Limitation Act.

Mr Mater has demonstrated a number of errors of principle by the primary Judge, but the Court is of the view that on a re-exercise of the discretion an extension of time would still be granted and, in those circumstances, leave should be refused.

The learned Judge directed himself (p 11 of his reasons) to consider whether a relevant factor was such as to 'disentitle the applicant to commence proceedings, although out of time', and whether it required him 'to disentitle an applicant to a right under the legislation'.

The judgment in Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 makes it clear that an applicant for an extension of time under legislation such as this must satisfy the Court that grounds exist for exercising the discretion in his or her favour. There may be an evidentiary onus on the respondent to raise considerations telling against the exercise of the discretion, but the ultimate onus of satisfying the Court remains on the applicant throughout (see per Toohey and Gummow JJ at 547). His Honour therefore fell into error in considering whether the applicant was disentitled to an extension. He should have remained focused on whether the applicant had made out a case for an extension.

A further error of principle was disclosed when the Judge said: 'I find that it is on the preponderance of evidence, based on the likely prejudice to the applicant, compared to the prejudice to the respondent, I find that it is just and reasonable to grant the application, and I do so'. The judgment of Toohey and Gaudron JJ demonstrates that a Judge should not attempt, in these cases, to weigh the prejudice to the applicant against that to the respondent. The question is always whether the applicant has made out a case for an extension, that is whether the Court is satisfied that it would not be causing significant injustice to the defendant by granting an extension, having regard to the prejudice that it will suffer as a result of the statutory bar being removed. These errors of principle would normally result in the grant of leave. However, in this case I am satisfied that a re-exercise of the discretion would confirm the extension granted by the Judge. The Court is concerned with a 3 year limitation period which expired on 17 March 1995. Proceedings were commenced against the claimant about 5 months later. A defence was promptly filed which raised the limitation point. There was then considerable unexplained delay by the plaintiff until an application for an extension of time was filed on 20 June 1997.