THEOCTISTOU v WETE [1998] NSWCA 233

THEOCTISTOU v WETE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and HANDLEY JJA 23 February 1998

[1998] NSWCA 233

Priestley JA This is an application for leave to appeal against a decision by Chief Judge Blanch of the District Court granting an application to enlarge the time for commencement of proceedings in relation to an accident which happened on Parramatta Road in 1993.

The decision his Honour had to make was a discretionary one and in giving his reasons for granting the application he stated quite fully the kind of approach which he felt bound to take in weighing the facts before him in considering whether he should exercise his discretion in favour of the application or against it.

No criticism is made by the defendant, who opposed the application at first instance and is seeking leave to appeal, of the approach which the judge indicated he felt bound to take.

The criticism made of the judge's decision is that he failed to give sufficient weight to the prejudice arising from three aspects of the materials before him and affecting the defendant's ability to defend the proceedings in a trial which would be relevantly a fair trial.

I do not think more need be said that that the Chief Judge appears to have taken into account the relevant facts in regard to each of the three headings separated out by counsel for the defendant in this application; to have considered the facts by reference to the approach which he had indicated he felt he must follow; and, having considered the facts in the light of that approach and having dealt with each of the three heads of matter raised by the defendant, then to have exercised his discretion in favour of the applicant/plaintiff.

For the defendant today the facts in each of the three aspects identified by the defendant were gone into in some detail but in none of the discussion did it appear that the judge had either misunderstood the facts or had taken into account matters that he should not have taken into account, or had failed to take into account matters that he should have taken into account; given that he was applying a test for the exercise of his discretion which in my opinion rightly has not been criticised by the defendant.