Gilles v Palmieri

[2016] NSWCA 219

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Service of originating process
3. › Extension of time for service
4. › Statement of liquidated claim filed near expiry of limitation period
5. › Service not effected within prescribed period
6. › Whether power exists to extend time for service after limitation period expired
7. › Whether good reason shown for extension
8. › Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 6.2
1. Practice and Procedure
2. › Reasons for judgment
3. › Failure to give reasons
4. › Whether exchanges during submissions constitute reasons
5. › Whether right to reasons can be waived
6. › Whether express and unequivocal statement required to waive right to reasons
1. Practice and Procedure
2. › Commencement of proceedings
3. › Whether proceedings commenced by filing or by service of originating process
4. › Distinction between commencement and jurisdiction
5. › Uniform Civil Procedure Rules 2005 (NSW), r 6.2
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Whether indemnity costs order appropriate where application not completely misconceived
5. › Civil Procedure Act 2005 (NSW), ss 56-59

Quick Take

A court has power under UCPR r 1.12 to extend the time for service of an originating process filed within time, even if a limitation period has expired after the time for service has expired. Proceedings are commenced by filing, not by service. Exchanges during submissions do not form part of the court's reasons for judgment. The right to receive reasons cannot be waived absent an express and unequivocal statement, particularly where the dismissal of proceedings is at stake. An applicant for extension of time for service bears the onus of showing 'good reason', and a substantial, partly conscious, and largely unexplained delay will not satisfy that onus even in the absence of demonstrated prejudice to the other party.