Cth v Leonard Lewis

[2007] NSWCA 127

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Interference with exercise of discretion by trial judge
3. › Circumstances where appellate court will intervene
4. › Whether trial judge fell into error in exercise of discretion
5. › House v The King (1936) 55 CLR 499
1. Limitation of Actions
2. › Extension of limitation period
3. › Power of court to extend period where just and reasonable
4. › Underlying principle that fairness of the trial governs extension of time
5. › Whether appellant significantly prejudiced if extension of time granted
6. › Prejudice alleged due to loss of evidence and inability to investigate cause of action
7. › Limitation Act 1969 (NSW), ss 60G, 60I
1. Limitation of Actions
2. › Extension of limitation period
3. › Costs
4. › Successful applicant for extension of time to pay costs unless respondent's opposition wholly unreasonable
5. › Whether trial judge erred in reserving question of costs

Quick Take

The underlying principle governing extension of limitation periods under s 60G of the Limitation Act 1969 (NSW) is the fairness of the trial, not a balancing exercise between the prejudice to the plaintiff and the prejudice to the defendant. Even a delay of nearly 40 years does not necessarily preclude a fair trial where a significant body of contemporaneous documentary records and some medical evidence remains available. A successful applicant for extension of time should ordinarily pay the costs of the application unless the respondent's opposition was wholly unreasonable.