Windsurf Holdings Pty Ltd v Leonard; Carlson v Leonard; Wyvill v Leonard [2009] NSWCA 6

New South Wales Court of Appeal

CITATION: Windsurf Holdings Pty Ltd v Leonard; Carlson v Leonard; Wyvill v Leonard [2009] NSWCA 6

HEARING DATE(S): 15 October 2008

JUDGMENT DATE: 30 January 2009

JUDGMENT OF: Beazley JA at 1; Bell JA at 2; Sackville AJA at 26

(1) Grant leave to each of the applicants to appeal from the decision of the Associate Judge given on 7 December 2007. (2) Direct the draft notice of appeal in each case be treated as if filed pursuant to leave. (3) In each case allow the appeal. DECISION: (4) Set aside orders (1), (2), (3) and (4) made by the Associate Judge on 7 December 2007. (5) In substitution therefor order that the application for an extension of the limitation period against each of the appellants and for orders joining each of them as defendants to the proceedings be dismissed. (6) Ms Leonard to pay the costs of each of the appellants of the application for leave to appeal and of the appeal. (7) Ms Leonard to pay the costs of the appellants of the amended motion determined by the Associate Judge.

CATCHWORDS: LIMITATION OF ACTIONS – application to extend time to bring personal injuries claim – choice of law – Queensland law applies – findings of prejudice – extension of time should not have been granted – motion filed to join a party to existing proceedings but no amended pleading filed – "action" not brought within time

Choice of Law (Limitation Periods) Act 1993 (NSW) ss 5, 6 Choice of Law (Limitation Periods) Act 1996 (Qld) s 5 Civil Procedure Act 2005 (NSW) ss 56, 63, 65(2)(b) Constitution s 75(iv) Judiciary Act 1993 (Cth) s 39(2) Limitation Act 1939 (UK) s 31 Limitation Act 1963 (UK) LEGISLATION CITED: Limitation Act 1969 (NSW) ss 58, 60C, 60G, Pt 3 Div 3 Limitation of Actions Act 1974 (Qld) ss 5, 10, 11, 30, 31 Motor Accidents Act 1988 (NSW) Poor Relief Act 1601 Supreme Court Act 1970 (NSW) s 81 Supreme Court Rules 1965 (English) O 2 r 1 Supreme Court Rules 1970 (NSW) Pt 7 r 6, Pt 60 r 17(j) Uniform Civil Procedure Rules 1999 (Qld) rr 8, 371 Uniform Civil Procedure Rules 2005 (NSW) rr 6.2, 6.28, 19.1(1), 19.2, 19.2(4)