BHP STEEL (AIS) PTY LIMITED v LAKOVSKI [2000] NSWCA 334

New South Wales Court of Appeal

CITATION : BHP STEEL (AIS) PTY LIMITED v LAKOVSKI [2000] NSWCA 334 FILE NUMBER(S) : CA 40065/99 HEARING DATE(S) : 31 October 2000 JUDGMENT DATE : 24 November 2000

PARTIES : BHP STEEL (AIS) PTY LIMITED v Blagoja LAKOVSKI JUDGMENT OF : Meagher JA at 1; Fitzgerald JA at 12; Heydon JA at 13

LOWER COURT JURISDICTION : District Court LOWER COURT 3772/98 FILE NUMBER(S) : LOWER COURT Kuner ADCJ JUDICIAL OFFICER :

COUNSEL : Appellant: J D Hislop QC/ G. M Watson Respondent: K. Andrews SOLICITORS : Appellant: Sparke Helmore Respondent: Nicholas Karefylakis CATCHWORDS : Limitations Act 1969 NSW - consideration of presumption of prejudice in a case of long delay in the commencement of common law proceedings - determination of prejudice in an application for extension of time to bring common law proceedings - where significant prejudice precludes a fair trial. LEGISLATION CITED : ss. 60I, 60G Limitation Act 1969 (NSW) CASES CITED: Council of the City of Sydney v Zegerac (1998) 43 NSWLR 195; BHP Steel (AIS) Pty Limited v R. Dimitrioski (unreported, Supreme Court of New South Wales, Court of Appeal 24 February 1997); Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Holt v Wynter (2000) 49 NSWLR 128. DECISION : 1. Appeal dismissed with costs.

- 6 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA: 40065/99

MEAGHER JA FITZGERALD JA HEYDON JA

Friday, 24 November 2000 BHP STEEL (AIS) PTY LIMITED v Blagoja LAKOVSKI FACTS The respondent/plaintiff brought a successful application for an extension of time under s.60 of the Limitation Act 1969 (NSW). The appellant/respondent appeals on the ground that his Honour Kuner ADCJ erred a) in his interpretation of s.60G of the Limitation Act 1969 (NSW) because the defendant argued that the decision of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 precluded success by the plaintiff/respondent; b) in relying upon Council of the City of Sydney v Zegerac (1998) 43 NSWLR 195; c) by way of consideration of any prejudice to the plaintiff if no order were made, because such consideration is irrelevant; and d) in not giving proper weight to the decision of the Court of Appeal in BHP Steel (AIS) Pty Limited v R. Dimitrioski (unreported, New South Wales Supreme Court, Court of Appeal, 24 February 1997). HELD By the Court: 1. The decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 does not mean there are distinctly differing tests to determine how a long delay may prejudice a fair trial: see Holt v Wynter (2000) 49 NSWCA 128. 2. In seeking to rely on a finding of significant prejudice, the appellant/defendant sought to rely on a state of affairs and did not lead any evidence that they would suffer prejudice, which is hardly conducive to a finding that they will suffer prejudice. ORDERS 1. Appeal dismissed with costs.