Commonwealth of Australia v Leonard Lewis [2007] NSWCA 127

New South Wales Court of Appeal

CITATION: Commonwealth of Australia v Leonard Lewis [2007] NSWCA 127

HEARING DATE(S): 5 February 2007

JUDGMENT DATE: 6 June 2007

JUDGMENT OF: Beazley JA at 1; Santow JA at 98; Ipp JA at 99

DECISION: 1. Appeal allowed in part; 2. Confirm Order 1 made by the trial judge extending the limitation period to 18 October 2001; 3. Set aside the costs order made by the trial judge; 4. Order the respondent to pay the costs of the appellant of the application to extend the limitation period; 5. Order the appellant to pay the respondent's costs of the trial.

CATCHWORDS: APPEAL – interference with exercise of discretion by trial judge – circumstances where appellate court will intervene – whether trial judge fell into error in exercise of discretion - LIMITATION OF ACTIONS – Limitations Act 1969 (NSW) s 60G – power of court to extend period where just and reasonable – underlying principle in extension of time is fairness of the trial – whether appellant significantly prejudiced if extension of time granted – prejudice alleged by appellant due to loss of evidence and inability to investigate cause of action - LIMITATION OF ACTIONS – costs – successful applicant for extension of time to pay unless respondent's opposition wholly unreasonable – whether trial judge erred in reserving question of costs

LEGISLATION CITED: Limitation Act 1969 (NSW) ss 14, 60G, 60I, Schedule 5 Supreme Court Rules 1970 (NSW) Pt 52A r 17

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 Commonwealth of Australia v Smith [2005] NSWCA 478 Gretton v The Commonwealth [2005] NSWSC 437 CASES CITED: Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143 House v The King (1936) 55 CLR 499; [1936] HCA 40 Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80 Smith v Commonwealth of Australia [2004] NSWSC 873 Wayne Sauer v Allianz Australia Insurance Limited [2006] NSWCA 364