PARSONS v. DOUKAS [2001] NSWCA 128

Reported Decision : 52 NSWLR 162

New South Wales Court of Appeal

CITATION : PARSONS v. DOUKAS [2001] NSWCA 128 FILE NUMBER(S) : CA 40724/99 HEARING DATE(S) : 20/04/2001 JUDGMENT DATE : 8 August 2001

PARTIES : RICHARD PARSONS - Appellant CARROLL DOUKAS - Respondent JUDGMENT OF : Sheller JA at 1; Powell JA at 3; Davies AJA at 73

LOWER COURT JURISDICTION : District Court LOWER COURT DC 2801/99 FILE NUMBER(S) : LOWER COURT Christie DCJ JUDICIAL OFFICER :

COUNSEL : P. P. Strasser - Appellant W. M. Fitzsimmons - Respondent SOLICITORS : Charles G. Roth & Co. (Surry Hills) - Appellant Abbott Tout - Respondent CATCHWORDS : LIMITATION OF ACTIONS - Motor vehicle accidents - Leave to commence proceedings out of time - Discretion to grant leave - Scope of discretion - Factors to be considered D LEGISLATION CITED : Motor Accidents Act 1988 s.52 DECISION : Appeal dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40724/99 DC 2801/99 SHELLER JA POWELL JA DAVIES AJA

8 August 2001

PARSONS v. DOUKAS

JUDGMENT

1 SHELLER JA: I have had the benefit of reading the reasons for judgment prepared by Powell JA and by Davies AJA. In my reasons for judgment in Holt v Wynter (2000) 49 NSWLR 128 I concluded, on the basis of the authorities referred to, that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant (147, para 119). The authorities also deal with the tests to be applied where there has been long and unexplained delay which has not resulted in significant prejudice to the potential defendant. In that context as I said (147, para 113) it may be that, in the absence of significant prejudice to a potential defendant, there is no reason why the discretion should not be exercised in favour of the applicant. However, the authorities do not in my opinion suggest that the Court is bound to grant leave to commence proceedings in the absence of proof of any significant prejudice to the proposed defendant in doing so, for example in a situation of long and unexplained delay; Holt v Wynter at 147, para 116. The real question remains as Toohey and Gummow JJ pointed out in Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541 at 550: "…. whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent." 2 As Powell JA emphasises in para 69 of his judgment, the relevant discretion is a discretion to grant and not a discretion to refuse leave. The applicant must satisfy the Court that grounds exist for the exercise of the discretion in his or her favour. I agree with Powell JA's analysis of the judgment of the first instance Judge and with his Honour's conclusion that the Judge has not been shown to have erred in the exercise of his discretion. The appeal should be dismissed with costs.