Supreme Court New South Wales Medium Neutral Citation: Kovarfi v BMT & Associates Pty Ltd [2014] NSWSC 89 Hearing dates: 14 February 2014 Decision date: 14 February 2014 Jurisdiction: Common Law Before: Campbell J Decision: I overrule the objection. Catchwords: EVIDENCE - admissibility Legislation Cited: Evidence Act 1995 (NSW) Limitation Act 1961 (NSW) Trade Practices Act 1974 (Cth) Category: Interlocutory applications Parties: Edith Kovarfi (First Plaintiff) Attila Kovarfi (Second Plaintiff) Sara Kovarfi (Third Plaintiff) Representation: Counsel: E Kovarfi (Plaintiff in person) J Williams (Defendants) Solicitors: Yeldham Price O'Brien Lusk (Defendants) File Number(s): 2013/137597 Judgment 1Mr Williams of counsel for the defendants has objected to material attached to the plaintiff's affidavit of 9 October 2013 at pages 146 to 150. That material consists of reports and certificates from two general practitioners. 2The issue to which that material goes is that one of the grounds on which summary dismissal is sought is that the statement of claim is issued out of time; that is to say, the time fixed by either s 14 of the Limitation Act 1961 (NSW) or s 82 of the Trade Practices Act 1974 (Cth) which might apply to these proceedings. 3So far as s 14 of the Limitation Act is applicable, the time fixed by that provision may be suspended under s 52 where a plaintiff can demonstrate that he or she was labouring under a disability as defined by the Act when time was running. I won't consider that provision further at this time. Section 82 of the Trade Practices Act doesn't seem to be subject to the same potentiality for extension. 4Disability is defined by the Act in terms which would include a mental condition which substantially impaired the applicant's ability to manage her affairs. I put it informally and not by way of quotation. 5To the extent to which the relief sought by the defendants is based upon that matter, the plaintiff has filed a document entitled Reply to Notice of Motion where the first plaintiff, on behalf of herself and the second and third plaintiffs, has raised s 52, inter alia, of the Limitation Act. 6In those circumstances as the central question I will have to determine is whether there is a high degree of certainty about the ultimate outcome of the proceedings, in the sense that it would be futile to allow them to proceed to trial, it seems to me to be sufficient if the plaintiff demonstrates, the ultimate onus being on the defendants, that there is evidence before me from which I can infer that if the matter proceeds to trial, the plaintiff will probably be in a position to lead evidence which if accepted will be capable of making good her argument in relation to disability. 7I therefore think that the material objected to is admissible, first because s 75 of the Evidence Act 1995 (NSW) provides an exception to the hearsay rule in interlocutory proceedings; and secondly, evidence relied upon by Mrs Kovarfi is relevant because it tends to prove, if I accept it, that there is a triable issue in relation to the argument Mrs Kovarfi makes based upon s 52 Limitation Act 1969. 8I overrule the objection. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2014