Matheson v Commissioner of Main Roads & Anor

[2001] WASCA 402

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Limitation of Actions
2. › Extension of time
3. › Personal injuries against public authorities
4. › Leave to commence proceedings
5. › Whether limitation period applies to commencement of action or to application for leave
6. › Whether leave may be granted retrospectively or nunc pro tunc
7. › Whether declaration validating writ issued without leave may be made
8. › Limitation Act 1935 (WA), s 47A
1. Limitation of Actions
2. › Extension of time
3. › Criteria for grant of leave
4. › Whether delay occasioned by mistake or other reasonable cause
5. › Whether prospective defendant materially prejudiced
6. › Principles governing exercise of discretion
7. › Limitation Act 1935 (WA), s 47A(3)(b)
1. Practice and Procedure
2. › Validity of process
3. › Writ issued without required leave
4. › Whether writ is a nullity
5. › Whether court may validate process issued without leave

Quick Take

Under s 47A of the Limitation Act 1935 (WA), the six-year period limits the time within which the action must be brought, not merely the time for making the application for leave. Leave can only operate prospectively and cannot be granted nunc pro tunc. A writ issued without the required leave is a nullity that cannot be validated by a subsequent court order. Practitioners must ensure that both the application for leave and the commencement of proceedings occur within the six-year period, and that sufficient time is allowed for any appeal from a refusal of leave.