Briggs v Sewell - [2002] NSWCA 182

CITATION: BRIGGS v SEWELL [2002] NSWCA 182

FILE NUMBER(S): CA 40936/01

HEARING DATE(S): 14/06/02

JUDGMENT DATE:
2 July 2002

PARTIES :

Darrel Albert BRIGGS v Loueen Kylie SEWELL

JUDGMENT OF: Sheller JA at 1; Hodgson JA at 2; Foster AJA at 3-55

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 102/00

LOWER COURT
JUDICIAL OFFICER : Delaney DCJ

COUNSEL: D. Campbell - Claimant
S. Bliim - Opponent

SOLICITORS: Hancock Alldis - Claimant
Marsdens - Opponent

CATCHWORDS: Application for leave to appeal from a decision where granted leave to commence proceedings although out of time.

LEGISLATION CITED: Limitation Act (NSW) 1969

CASES CITED:
Wickstead v Browne (1992) 30 NSWLR 1
Drayton Coal Pty Ltd v Drain (CA 40418/95)

DECISION: 1. Grant leave to appeal.; 2. Appeal upheld with costs.; 3. Orders below set aside.; 4. Application be remitted to the District Court to be heard and determined in accordance with these reasons and that the costs of the first applicationa be determined by the judge hearing the remitted application.; 5. Respondent to have certificate under Suitors Fund Act if otherwise entitled.

CA 40936/01
DC 102/00

SHELLER JA
HODGSON JA
FOSTER AJA
TUESDAY, 2 JULY, 2002

Darrel Albert BRIGGS v Loueen Kylie SEWELL

Judgment

1 SHELLER JA: I agree with Foster AJA.

2 HODGSON JA: I agree with Foster AJA.

3 FOSTER AJA: This is an application for leave to appeal from an interlocutory decision of his Honour Delaney DCJ given on 29 October 2001 in the District Court of New South Wales at Parramatta. His Honour granted the opponent leave to commence proceedings against the claimant, although out of time. By consent, if leave be granted, the Court is to proceed to a determination of the appeal.

4 His Honour had before him an application by the present opponent Loueen Kylie Sewell (Ms Sewell) for an order extending the time within which to commence proceedings against the claimant, Darrel Albert Briggs (Mr Briggs). Ms Sewell had, in fact, commenced proceedings against Mr Briggs by ordinary Statement of Claim dated 1 November 2000 to which Mr Briggs had filed a defence on 18 December 2000, by which he pleaded, inter alia, “that the Plaintiff’s alleged causes of action did not arise within six (6) years before the commencement of this action and are therefore barred by s 14 of the Limitation Act (NSW) 1969.

5 It was to overcome the effect of that defence that the application was brought before his Honour. Before considering the questions raised in this application, it is convenient to set out some matters by way of background.

6 By her Statement of Claim the plaintiff pleaded her cause of action as follows:-

“1. At all material times the defendant was the plaintiff’s step-father. The defendant was married to the plaintiff’s mother, Beverley Kay Noble (formerly Beverley Kay Briggs).

2. During the period 1980 to 1983, the defendant sexually, emotionally and physically assaulted and battered the plaintiff on a frequent basis.

3. As…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Briggs v Sewell

Details

AGLC: Briggs v Sewell [2002] NSWCA 182
Case: [2002] NSWCA 182
Decision Date: 2 July 2002

CaseChat Overview and Summary

The parties to the appeal were Briggs (appellant) and Sewell (respondent). The dispute concerned an application to commence proceedings out of time, which had been granted by the primary judge. The appeal was heard by Sheller JA, Hodgson JA, and Foster AJA in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the primary judge had erred in granting leave to commence proceedings notwithstanding that the application was made outside the prescribed time limits. This involved a consideration of the relevant statutory provisions governing the extension of time for commencing proceedings and the principles to be applied by a court when exercising such discretion.

The Court of Appeal upheld the appeal, finding that the primary judge had misapplied the relevant legal principles. The court reasoned that the applicant had failed to provide a sufficient explanation for the delay in commencing proceedings and had not demonstrated that the interests of justice favoured granting an extension of time. Consequently, the orders of the primary judge were set aside. The application was remitted to the District Court for a fresh hearing and determination, with the costs of the initial application to be determined by the judge hearing the remitted matter. The respondent was also granted a certificate under the Suitors Fund Act if otherwise entitled.

Orders

Orders of the court

1. Grant leave to appeal.; 2. Appeal upheld with costs.; 3. Orders below set aside.; 4. Application be remitted to the District Court to be heard and determined in accordance with these reasons and that the costs of the first applicationa be determined by the judge hearing the remitted application.; 5. Respondent to have certificate under Suitors Fund Act if otherwise entitled.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	BRIGGS v SEWELL [2002] NSWCA 182
FILE NUMBER(S):	CA 40936/01
HEARING DATE(S):	14/06/02
JUDGMENT DATE:	2 July 2002
PARTIES :	Darrel Albert BRIGGS v Loueen Kylie SEWELL
JUDGMENT OF:	Sheller JA at 1; Hodgson JA at 2; Foster AJA at 3-55

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 102/00
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ

COUNSEL:	D. Campbell - Claimant S. Bliim - Opponent
SOLICITORS:	Hancock Alldis - Claimant Marsdens - Opponent
CATCHWORDS:	Application for leave to appeal from a decision where granted leave to commence proceedings although out of time.
LEGISLATION CITED:	Limitation Act (NSW) 1969
CASES CITED:	Wickstead v Browne (1992) 30 NSWLR 1 Drayton Coal Pty Ltd v Drain (CA 40418/95)
DECISION:	1. Grant leave to appeal.; 2. Appeal upheld with costs.; 3. Orders below set aside.; 4. Application be remitted to the District Court to be heard and determined in accordance with these reasons and that the costs of the first applicationa be determined by the judge hearing the remitted application.; 5. Respondent to have certificate under Suitors Fund Act if otherwise entitled.