FRIZELLE v BAUER [2009] NSWCA 239

New South Wales Court of Appeal

CITATION: FRIZELLE v BAUER [2009] NSWCA 239

HEARING DATE(S): 3 August 2009

JUDGMENT DATE: 3 August 2009

JUDGMENT OF: McColl JA at 1; Basten JA at 2

EX TEMPORE JUDGMENT DATE: 3 August 2009

(1) Grant extension of time.

DECISION: (2) Refuse leave to appeal.

(3) Order the applicant to pay the respondent's costs in this Court.

CATCHWORDS: APPEAL – leave to appeal – "holding appeal" originally filed – extension of time required to file application for leave– no explanation or justification for subsequent delay – whether prejudice caused by delay – whether application for leave reasonable arguable - LIMITATION OF ACTIONS – action for damages arising from personal injury – date when cause of action is discoverable – anticipated requirement of ongoing surgery and medical attention – impairment of earning capacity – receipt of advice from solicitors – whether plaintiff knew or ought to have known that injury was sufficiently serious to justify the bringing of an action – Limitation Act 1969 (NSW) s 50C(1), s 50D - WORDS AND PHRASES – "discoverable" – "sufficiently serious to justify the bringing of an action"

LEGISLATION CITED: Limitation Act 1969 (NSW), ss 50C, 50D Uniform Civil Procedure Rules 2005 (NSW), r 28.2

CASES CITED: Baker-Morrison v State of New South Wales [2009] NSWCA 35

Kelly Renee Frizelle (Applicant) PARTIES: Wolfgang Bauer (First Respondent) Chepan Pty Ltd T/as L J Hooker Newtown (Second Respondent)

FILE NUMBER(S): CA 40008/09

J E Sexton SC/R W Royle (Applicant) COUNSEL: M Kumar (First Respondent) D Hand (Second Respondent)