Smith v Young [2016] NSWCA 281

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Smith v Young [2016] NSWCA 281 Hearing dates: 13 October 2016 Date of orders: 13 October 2016 Decision date: 17 October 2016 Before: Ward JA at [1]; Leeming JA at [29]; Sackville AJA at [30] Decision: 1. Grant leave to appeal. 2. Direct the applicant to file a notice of appeal in terms of the draft notice dated 15 July 2016 within 48 hours. 3. Set aside the orders of Olsson DCJ made on 3 June 2016 and order instead that the respondent's motion filed on 6 May 2016 be dismissed with costs. 4. Order the respondent to pay the appellant's costs of the appeal. 5. The respondent should have a certificate under the Suitors' Fund Act 1951 (NSW). Catchwords: APPEAL – practice and procedure – summary dismissal of proceedings as statute barred by reason of Limitation Act 1969 (NSW), ss 14 and 63 – whether primary judge erred in finding that claim as pleaded so obviously untenable that should be summarily dismissed Legislation Cited: Limitation Act 1969 (NSW), ss 14, 63 Cases Cited: Butler v Fairclough (1917) 23 CLR 78; [1917] HCA 9 Executor, Trustee & Agency Co of South Australia Ltd v Thompson (1919) 27 CLR 162; [1919] HCA 51 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Haller v Ayre [2005] 2 Qd R 410; [2005] QCA 224 Pico Holdings Inc v Wave Vistas Pty Ltd (2005) 79 ALJR 825; [2005] HCA 13 Ryan Wealth Holdings Pty Ltd v L & V Tomkins Pty Ltd [2016] NSWSC 136 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55 Category: Principal judgment Parties: Josephine Aapa Smith (Applicant) Joanne Elizabeth Young (Respondent) Representation: Counsel: M Condon SC with EA Walker (Applicant) D Campbell SC with J Sheller (Respondent)