STATE RAIL AUTHORITY OF NEW SOUTH WALES v KEARNS [1997] NSWCA 296

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

PRIESTLEY and POWELL JJA 8 September 1997

[1997] NSWCA 296

Priestley JA Mr Montgomery has put the case very forcefully for his client, the State Rail Authority.

The Authority appears from the evidence that was before the trial judge to have done everything it could have been expected to do in this case. That does not detract however, from the basis of our refusal to grant leave which is that the trial judge appears from his reasons and from what we have heard in argument to have considered the exercise of his discretion on a proper basis. I am not suggesting Mr Montgomery conceded that but that is how it appears to the court - and to have taken the appropriate matters into consideration in arriving at his conclusion that he should grant the extension of time in the case.

It is not necessary in this application to go into the question whether Taylor's case applies absolutely to the statutory provisions in question here. The trial judge appears to have accepted that it did and he stated the test in a slightly different way from the various ways tests can be extracted from Taylor's case, we think however that the way in which he stated it, and assuming that Taylor's case was applicable, did not show any sign of error.

We therefore dismiss the application with costs.

Dismiss the application with costs.