COMMONWEALTH OF AUSTRALIA v MCLEAN [1997] NSWCA 76

COMMONWEALTH OF AUSTRALIA vy MCLEAN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY and BEAZLEY JJA, and SANTOW AJA

3 March 1997, 28 July 1997

[1997] NSWCA 76

Extension of limitation period - exercise of discretion — s60G Limitation Act

Handley, Beazley JJA and Santow AJA On 31 December 1996, the Court delivered its judgment in The Commonwealth of Australia vy McLennan, the appeal having been heard on an expedited basis on 23-25 and 28-31 October 1996. As the oral argument had not concluded by the end of the extended time allocated for the hearing of the appeal, the parties were directed to file further written submissions in respect of the issues not dealt with in oral argument.

One of the issues dealt with in this way was the trial judge's exercise of discretion in extending the limitation period. In our judgment, we upheld the trial judge's order extending the time in which the proceedings could be brought. Our expressed reasoning focused on the construction of s60G and s60I of the Limitation Act 1969. We omitted to express any reasons in respect of his Honour's exercise of discretion. This omission was drawn to the attention of Handley JA at a directions hearing on 13 January 1997. Subsequently, the Commonwealth filed a Notice of Motion seeking orders to the effect that the trial judge's order extending the limitation period be set aside. The issue raised by the orders sought in the Notice of Motion related to his Honour's exercise of discretion in granting the extension (the discretion issue), and did not relate to the construction issue. Senior Counsel for the Commonwealth urged the Court to at least express its reasons on the discretion issue. Counsel for Mr McLean informed the Court that his client had no objection to the Court now expressing its reasons on the discretion issue and did not otherwise seek to be heard unless the Court decided to entertain the motion to set aside the order of the Court made on 31 December 1996, that there be a new trial of the action. The Court considers it appropriate therefore to express its reasons on the discretion issue.