Rutter v The State of New South Wales [2005] NSWCA 231

New South Wales Court of Appeal

CITATION: Rutter v The State of New South Wales [2005] NSWCA 231

HEARING DATE(S): 28 June 2005

JUDGMENT DATE: 6 July 2005

JUDGMENT OF: Handley JA at 1; McColl JA at 2; Hunt AJA at 41

DECISION: (1) Leave to Appeal granted. (2) The appellant to file the Notice of Appeal on or before 5 July 2005. (3) Appeal allowed. (4) Order of O'Toole DCJ refusing the appellant's application for an extension of time to sue the respondent set aside. (5) Extend the limitation period for the appellant's causes of action accruing on and after 12 March 1995 to 21 December 2002. (6) Respondent to pay the costs of the appeal.

CATCHWORDS: LIMITATION OF ACTIONS - application for extension out of time - Limitation Act 1969, s 60C - determining issues of causation on final basis as opposed to determining whether the applicant could prove facts which demonstrated reasonable prospects of success at a final hearing. (D)

Limitation Act 1969 LEGISLATION CITED: District Court Rules 1973

House v R [1936] HCA 40; (1936) 55 CLR 499 Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 CASES CITED: Salido v Nominal Defendant (1993) 32 NSWLR 524 Scarcella v Lettice [2000] NSWCA 289; (2000) 51 NSWLR 302; Yu v Speirs [2001] NSWCA 373

Brendon Wayne Rutter (Appellant) PARTIES: The State of New South Wales (Respondent)

FILE NUMBER(S): CA 40526/04

B J Gross QC/K O Earl (Appellant) COUNSEL: P Menzies QC/L K Crowley (Respondent)

Baker & Edmunds Solicitors (Appellant) SOLICITORS: Crown Solicitor (Respondent)

LOWER COURT JURISDICTION: District Court