BlueScope Steel Limited v De Caires; ABB EPT Management Limited v De Caires

The proceeding concerned appeals from orders of the primary judge who had initially refused, and then subsequently granted, extensions of time to commence proceedings under the relevant limitation legislation. The appellants, BlueScope Steel Limited and ABB EPT Management Limited, sought to appeal these grants of extension, arguing that the primary judge had erred in law. The respondent, Mr De Caires, had suffered a work accident and sought to bring proceedings against the appellants.

The central legal issue before the Court of Appeal was whether the primary judge had correctly applied the principles governing the grant of extensions of time under the *Limitation Act 1969* (NSW), particularly in light of evidence that emerged after the initial refusal of an extension. This evidence related to the potential prejudice to the appellants, specifically concerning the availability of witnesses, and whether this prejudice was of a kind that should have prevented the grant of an extension. The Court considered the application of the principles established in *Itek Graphix Pty Ltd v Bowes*.

The Court of Appeal found that the primary judge had erred in granting the extensions of time. While acknowledging that the respondent had initially received unfavourable advice regarding the prospects of his claim against the occupier, the Court held that the later-emerging evidence, particularly concerning the unavailability of certain witnesses, constituted significant prejudice to the appellants. The Court determined that this prejudice was of a nature that weighed heavily against the grant of an extension, and that the primary judge had not given sufficient weight to this factor when reconsidering the application.

Consequently, the Court of Appeal dismissed each summons for an extension of time, with costs awarded to the appellants.