Edmondson Memorial Club and Gladesville RSL Club v Bartsch [1999] NSWCA 348

New South Wales Court of Appeal CITATION : Edmondson Memorial Club and Gladesville RSL Club v Bartsch [1999] NSWCA 348 FILE NUMBER(S) : CA 40226/99; 40216/99 HEARING DATE(S) : 23 July 1999 JUDGMENT DATE : 24 September 1999

PARTIES : John Edmondson VC Memorial Club Co-op Ltd v Gabriella Bartsch & Anor; Gladesville RSL Club Ltd v Gabriella Bartsch & Anor JUDGMENT OF : Meagher JA at 1; Hodgson CJinEq at 14

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 4181/93 LOWER COURT JUDICIAL OFFICER : Goldring DCJ

COUNSEL : Claimant: T. Alexis/E. White Opponent: M.Evans SOLICITORS : Claimant: Marshall Marks Kennedy Opponent: Cashman & Partners CATCHWORDS : Limitation Act - limitation period - statutory interpretation - interlocutory Court orders. ACTS CITED : Limitation Act; District Court Rules Part 3 r.2 DECISION : Leave to appeal granted; Appeal dismissed with costs

- 1 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40216/99; 40226/99 MEAGHER JA HODGSON CJ IN EQ

Friday, 24 September 1999 John EDMONDSON VC MEMORIAL CLUB CO-OP LIMITED v Gabriells BARTSCH & ANOR GLADESVILLE RSL CLUB LIMITED v Gabriella BARTSCH & ANOR

LIMITATION PERIOD - STATUTORY INTERPRETATION - INTERLOCUTORY COURT ORDERS - LIMITATION ACT- PART 3 RULE 2 DISTRICT COURT RULE

Mrs Bartsch was employed as a cleaner. She pursued an action in negligence against each club for injuries incurred while working for them. The limitation period against Gladesville RSL Club expired in August 1990 and expired against the Edmondson VC Club in February 1992. By this time Mrs Bartsch had taken no action against either club. On 11 November 1996 Soloman DCJ granted a notice of motion dated 31 August 1993 to extend the time to sue. The extension was granted until 11 December 1996. No action was forthcoming by this date. Mrs Bartsch filed a second notice of motion to extend time to sue. This was granted by Soloman SCJ who extended the time until 17 December 1997. This decision was reversed on appeal. However it was noted by the appeal court that orders for extension for time to sue were interlocutory and therefore could be varied. It was also noted that Part 3 Rule 2 of the District Court Rules allowed for amendment of interlocutory orders. Mrs Bartsch thus sought to vary the order of 11 November 1996 made by Solomon DCJ. This was granted by Goldring DCJ. The applicants appealed this decision, arguing that his Honour had no inherent power to vary the order, only that granted to him under Part 3 Rule 2. It was further submitted that this Rule could not apply to the application because of the restrictions placed on granting extensions by S60I of the Limitation Act. Held: While great credence was given to the arguments submitted by the applicants it was held that interlocutory court orders need to be kept flexible in order to best meet the needs of justice. Unless plainer language was used it could not be inferred that S60I of the Limitation Act restricted Rule 2 in the manner suggested. It was noted that such a restrictive interpretation of the Limitation Act could be dangerous to litigants, for if they were not entitled to relief under the Act, then Rule 2 would also be inapplicable. As such it was held there had been no prejudice against the appellants in allowing either an extension or variation of the motion. Orders 1. Leave to appeal granted; 2. Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL