Certain Lloyds Underwriters v Kathy Giannopoulos; Certain Lloyds Underwriters v Marlene Giannopoulos [2009] NSWCA 56

New South Wales Court of Appeal

CITATION: Certain Lloyds Underwriters v Kathy Giannopoulos; Certain Lloyds Underwriters v Marlene Giannopoulos [2009] NSWCA 56 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 5 December 2008

JUDGMENT DATE: 20 March 2009

JUDGMENT OF: Giles JA at 1; Ipp JA at 7; Campbell JA at 8

In each of proceedings 40098 of 2008 and 40099 of 2008: (1) Grant leave to appeal. (2) Set aside the orders in the court below. DECISION: (3) In lieu thereof, order: (a) summons filed 27 April 2007 dismissed with costs. (b) proceedings dismissed with costs. (4) Respondent to pay costs of the Applicant of the proceedings in this court, and to have a certificate under the Suitors Fund Act 1951 if otherwise entitled.

CATCHWORDS: LIMITATION OF ACTIONS – extension of limitation period – nature of the decision whether it is "just and reasonable" to extend the limitation period – proper approach to assessing the factors in Limitation Act 1969 section 60E(1) – role of "reasonableness" in assessing reasons for delay - LIMITATION OF ACTIONS – extension of limitation period – prejudice to the defendant – effect of the death of a witness – witness died outside the limitation period but after the filing of the originating process - LIMITATION OF ACTIONS – extension of limitation period – effect of extension of limitation period - APPEAL AND NEW TRIAL – appeal – general principles – proper approach to appellant intervention concerning a decision whether to extend a limitation period – nature of the first instance decision – whether application for extension of limitation period is a discretionary decision – whether principles which apply for appellate intervention of a discretionary decision apply to non-discretionary decisions - TORTS – negligence – whether a decision that a duty of care has been breached is a discretionary decision – proper approach to appellate review for a decision that a duty of care has been breached - LEGAL SYSTEM AND LAWYERS' REASONING – use of ostensive definition