Walters v Cross Country Fuels Pty Limited [2009] NSWCA 10

New South Wales Court of Appeal

CITATION: Walters v Cross Country Fuels Pty Limited [2009] NSWCA 10

HEARING DATE(S): 2 February 2009

JUDGMENT DATE: 2 February 2009

JUDGMENT OF: Allsop P at 1, 34, 42; Campbell JA at 2; Handley AJA at 37

EX TEMPORE JUDGMENT DATE: 2 February 2009

DECISION: Application for leave to appeal dismissed with costs.

CATCHWORDS: LIMITATION OF ACTIONS – extension of limitation period – prejudice to the defendant – prejudice at the "time of the application for extension" – whether the time of the application is the time of filing or the time of the determination - LIMITATION OF ACTIONS – extension of limitation period – whether just and reasonable to extend – onus of showing - LIMITATION OF ACTIONS – extension of limitation period – prejudice to the defendant – damaged evidence – decision by the plaintiff not to sue – delay – inability to locate witness – witness unable to remember - LIMITATION OF ACTIONS – extension of limitation period – effect of expiration of limitation period - EVIDENCE – witnesses – inability to locate witness – whether solicitor has made satisfactory effects to locate – onus of showing that efforts were not satisfactory – impact of the tendering of a statement when witness is unavailable - EVIDENCE – documentary evidence – destruction of documents - APPEAL AND NEW TRIAL – appeal – general principles – error of fact – whether material error of fact has occurred

Evidence Act 1995 LEGISLATION CITED: Limitation Act 1969 Workers Compensation Act 1987

CATEGORY: Principal judgment

Application des Gaz SA v Falks Veritas Ltd [1974] Ch 381 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 CASES CITED: Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207 Sauer v Allianz Australia Insurance Ltd [2006] NSWCA 364