South Western Sydney Area Health Service v Gabriel & Anor , Gatenby v Gabriel & Anor

[2001] NSWCA 477

NSW Court of Appeal

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Interrogate

Catchwords

1. Limitation of Actions
2. › Extension of time
3. › Personal injury
4. › Whether just and reasonable to extend
5. › Onus of proof
6. › Applicant must prove absence of prejudice making fair trial unlikely
7. › Limitation Act 1969 (NSW), ss 60G, 60I
1. Limitation of Actions
2. › Extension of time
3. › Prejudice to defendant
4. › Presumptive and actual prejudice from delay
5. › Loss of evidence
6. › Whether delay made chances of acceptably fair trial unlikely
1. Practice and Procedure
2. › Appeals
3. › Extension of limitation period
4. › Appellate review of discretionary decision
5. › Whether primary judge asked the correct question

Quick Take

On an application to extend a limitation period under s 60G of the Limitation Act 1969 (NSW), the ultimate onus is on the applicant to prove that the delay has not caused such prejudice as would make the chances of an acceptably fair trial unlikely. The potential defendant bears only an evidentiary onus to lead evidence suggesting prejudice. The question is not whether the prejudice is 'so significant that it would be unjust or unreasonable' to grant the extension, but whether the applicant has affirmatively satisfied the court that the prejudice does not make a fair trial unlikely. Prejudice is not assessed by comparison with the position at the expiry of the limitation period.