NSW Sugar Milling Co-Operative Ltd v Murray Norman Fowke

[2002] NSWCA 229

NSW Court of Appeal

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Interrogate

Catchwords

1. Limitation of Actions
2. › Extension of limitation period
3. › Industrial deafness claim
4. › Whether just and reasonable to extend
5. › Prejudice to defendant
6. › Onus of proof on application to extend
7. › Whether primary judge erred in exercise of discretion
8. › Limitation Act 1969 (NSW), ss 60G, 60I
1. Appeal
2. › Leave to appeal
3. › District Court to Court of Appeal
4. › Discretionary decision
5. › Whether error in exercise of discretion established

Quick Take

A defendant opposing an extension of the limitation period under s 60G of the Limitation Act 1969 (NSW) must place 'sufficient facts' before the court to lead it to the view that prejudice would be occasioned; failure to call evidence or to explore in cross-examination the specific nature and extent of alleged prejudice (such as unavailability of records or witnesses from former employers) will be fatal to the prejudice argument. The inherent uncertainty of an industrial deafness claim involving multiple employers is a feature of the 'nature of the case' rather than prejudice caused by delay.