Barlow, John Robert v Baxter, James Phillip
[1998] FCA 858
•30 JUNE 1998
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
) AG 1 of 1998
CANBERRA DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: JOHN ROBERT BARLOW
Applicant
AND: JAMES PHILLIP BAXTER
Respondent
JUDGES: HIGGINS, DRUMMOND AND SACKVILLE JJ
PLACE: CANBERRA
DATE: 30 JUNE 1998
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application is refused.
The applicant will pay the respondent’s costs in relation to the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
) AG 1 of 1998
CANBERRA DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: JOHN ROBERT BARLOW
Applicant
AND: JAMES PHILLIP BAXTER
Respondent
JUDGES: HIGGINS, DRUMMOND AND SACKVILLE JJ
PLACE: CANBERRA
DATE: 30 JUNE 1998
REASONS FOR JUDGMENT
HIGGINS J:
This is an application for leave to appeal against a decision made by Crispin J in the Supreme Court of the Australian Capital Territory, delivered on 18 December 1997. The application itself was one for extension of the time within which to commence proceedings for damages arising out of injury to the plaintiff in a motor vehicle accident occurring on 11 September 1987. That occurred in New South Wales. At that time the law of New South Wales precluded any action based on common law rights to pursue an action for damages for negligence. There had instead been substituted a right to make a claim on a non-fault basis under the then relevant Transcover legislation, as it was called.
That was abolished with effect from 1 July 1989 which restored, albeit with some restrictions, the right to claim damages for such accidents should negligence be established. His Honour has correctly set forth in the judgment the rules which govern the application of the limitation laws of New South Wales to the action which had been commenced in the Australian Capital Territory. It is from his Honour’s decision to extend the time as requested, that the present applicant seeks leave to appeal. In relation to that application it must be demonstrated, in order for leave to be granted to the applicant, either that there is an identifiable error of law, which can be said to have vitiated the decision, or that the decision itself was so unreasonable as to bespeak such error.
At the outset it should be said that for my part I do not think it could be said that his Honour was in error in accepting the plaintiff’s oral evidence and giving full effect to it. His Honour had the advantage in that respect, of course, of seeing and hearing that witness. Although it may have been open to him to have doubted some of the claims which the plaintiff made, particularly concerning delay and the reason for it, that does not appear to have been done by his Honour and is not, in my view at least, an error of law for his Honour not to have done so. It does not seem to me that his Honour failed correctly to assess the prejudice to the applicant or the extent of it.
In that respect it should be noted that an unusual feature of this particular case was that the evidence from which an inference as to liability might be drawn was preserved in admissible form in transcripts of proceedings in the Local Court of New South Wales in relation to a prosecution of the present respondent. The applicant did not adduce at the hearing of this application any evidence which would suggest that any of those witnesses who gave such evidence would be unavailable or had recanted their testimony, or that there was any other reason to suppose that they would fail to have their memory refreshed by that transcript evidence. In any event that transcript evidence in the event of their unavailability would itself have been admissible.
There is also a full medical history, and this is again an unusual feature, right from the outset, largely caused, it might be said, by a series of further unfortunate events involving the plaintiff, but nevertheless there is a full medical history right from the outset. In my view there is nothing which has been shown to demonstrate a misapplication of principle, or a failure to apprehend or comprehend principle, in his Honour’s judgment, nor is his Honour’s conclusion so unreasonable as to bespeak error. I would refuse the application.
I certify that this and the two (2) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Justice Higgins.
Associate:
Date: 9 July 1998
Counsel for the Applicant: J.D. Hislop, QC
Instructing Solicitors: Sparke Helmore
Counsel for the Respondent: G. Lunney
Instructing Solicitors: Vandenberg Reid
Date of hearing: 30 June 1998
Date of judgment: 30 June 1998
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
) AG 1 of 1998
CANBERRA DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: JOHN ROBERT BARLOW
Applicant
AND: JAMES PHILLIP BAXTER
Respondent
JUDGES: HIGGINS, DRUMMOND AND SACKVILLE JJ
PLACE: CANBERRA
DATE: 30 JUNE 1998
REASONS FOR JUDGMENT
DRUMMOND J:
I agree with the order proposed by the learned presiding judge and with his reasons.
I certify that this page is a true copy of the Reasons for Judgment herein of his Honour Justice Drummond.
Associate:
Date: 1998
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
) AG 1 of 1998
CANBERRA DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: JOHN ROBERT BARLOW
Applicant
AND: JAMES PHILLIP BAXTER
Respondent
JUDGES: HIGGINS, DRUMMOND AND SACKVILLE JJ
PLACE: CANBERRA
DATE: 30 JUNE 1998
REASONS FOR JUDGMENT
SACKVILLE J:
I also agree with the reasons that have been given and the conclusion expressed.
I certify that this page is a true copy of the Reasons for Judgment herein of his Honour Justice Sackville.
Associate:
Date: 1998
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