Certain Lloyds Underwriters v Giannopoulos - [2009] NSWCA 56

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Certain Lloyds Underwriters v Kathy Giannopoulos; Certain Lloyds Underwriters v Marlene Giannopoulos [2009] NSWCA 56
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 5 December 2008

JUDGMENT DATE:
20 March 2009

JUDGMENT OF: Giles JA at 1; Ipp JA at 7; Campbell JA at 8

DECISION: In each of proceedings 40098 of 2008 and 40099 of 2008:
(1) Grant leave to appeal.
(2) Set aside the orders in the court below.
(3) In lieu thereof, order:
(a) summons filed 27 April 2007 dismissed with costs.
(b) proceedings dismissed with costs.
(4) Respondent to pay costs of the Applicant of the proceedings in this court, and to have a certificate under the Suitors Fund Act 1951 if otherwise entitled.

CATCHWORDS: LIMITATION OF ACTIONS – extension of limitation period – nature of the decision whether it is “just and reasonable” to extend the limitation period – proper approach to assessing the factors in Limitation Act 1969 section 60E(1) – role of “reasonableness” in assessing reasons for delay - LIMITATION OF ACTIONS – extension of limitation period – prejudice to the defendant – effect of the death of a witness – witness died outside the limitation period but after the filing of the originating process - LIMITATION OF ACTIONS – extension of limitation period – effect of extension of limitation period - APPEAL AND NEW TRIAL – appeal – general principles – proper approach to appellant intervention concerning a decision whether to extend a limitation period – nature of the first instance decision – whether application for extension of limitation period is a discretionary decision – whether principles which apply for appellate intervention of a discretionary decision apply to non-discretionary decisions - TORTS – negligence – whether a decision that a duty of care has been breached is a discretionary decision – proper approach to appellate review for a decision that a duty of care has been breached - LEGAL SYSTEM AND LAWYERS’ REASONING – use of ostensive definition

LEGISLATION CITED: Compensation to Relatives Act 1897
Contracts Review Act 1980
District Court Act 1973
Evidence Act 1995
Family Provisions Act 1982
Freedom of Information Act 1989
Limitation Act 1969
Liquor Act 1982
Motor Accidents Act 1988
Suitors Fund Act 1951
Supreme Court Act 1970

CATEGORY: Principal judgment

CASES CITED: Antonovic v Volker (1986) 7 NSWLR 151
Australian Croatian Cultural & Educational Association “Braca Radici” Blacktown Ltd v Benkovic [1999] NSWCA 210
Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256
Biogen Inc v Medeva plc [1997] RPC 1
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Costa v Public Trustee of NSW [2008] NSWCA 223
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803
Golosky v Golosky [1993] NSWCA 111
Holt v Wynter [2000] NSWCA 143
House v The King (1936) 55 CLR 499
Mace v Murray (1955) 92 CLR 370
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41
Robinson v The Zinc Corporation Pty Ltd [2005] NSWCA 372
Salido v Nominal Defendant (1993) 32 NSWLR 524
Schering-Plough Pty Ltd v Page [2002] NSWCA 4
Singer v Berghouse (1994) 181 CLR 201
Warren v Coombes (1979) 142 CLR 531
White v Barron (1980) 144 CLR 431

PARTIES: Certain Lloyds Underwriters Subscribing to Contract IH98AAQS - Appellant (40098/08 & 40099/08)
Kathy Giannopoulos - Respondent (40098/08)
Marlene Giannopoulos - Respondent (40099/08)

FILE NUMBER(S): CA 40098/08; 40099/08

COUNSEL: SR Donaldson SC; DA Moujalli - Appellants
AC Bridge SC; CA Hart - Respondents

SOLICITORS: Riley Gray-Spencer Lawyers, Sydney - Appellants
Bale Boshev Lawyers, Toronto - Respondents

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2848/03; DC 2849/03

LOWER COURT JUDICIAL OFFICER: Balla DCJ

LOWER COURT DATE OF DECISION: 29 January 2008

CA 40098/08
CA 40099/08
DC 2848/03
DC 2849/03

GILES JA
IPP JA
CAMPBELL JA
20 MARCH 2009

CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO CONTRACT IH98AAQS v KATHY GIANNOPOULOS

CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO CONTRACT IH98AAQS v MARLENE GIANNOPOULOS

Judgment

1 GILES JA: I have had the advantage of reading the reasons of Campbell JA in draft. I agree that whether it is just and reasonable to extend the limitation period involves the application of a legal standard, albeit one in which evaluation and judgment are important, such that review on appeal is not confined to the principles found in House v The King (1936) 55 CLR 499, and with the following observations I agree with his Honour’s reasons for concluding that the limitation period should not be extended. In the following respect in particular I consider that the trial judge made an error of principle.

2 The trial judge posed for herself the question of prejudice to the defendant “by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available”. Her Honour noted a number of respects in which it was submitted that the evidence of Mr Skouloudis would have been relevant, accepted that he may well have been the defendant’s principal witness “if the matter had proceeded to a hearing when he was alive”, and expressed the view that “the real issue is whether this is evidence which has been lost which would have been available if the proceedings had been commenced within time.” Her Honour concluded, as Campbell JA has set out -

“Taking these matters into account I decline to infer that:

· the insurer would have necessarily have acted in a timely manner and/or

· the hearing would have been completed

before the death of Mr Skouloudis if the proceedings been commenced within time.”

3 I do not add to Campbell JA’s explanation of error in placing weight, in relation to whether the insurer would have acted in a timely manner, upon the prior provision of a claim form. In my opinion there was error of principle in that the trial judge came to her finding as to prejudice by regard to completion of the hearing prior to the death of Mr Skouloudis. It is doubtful that the words “evidence that would have been available … is no longer available” in s 60E(1)(b) should be equated to the availability of Mr Skouloudis to give evidence, but even if it should the court must have regard to “all the circumstances of the case”. Those circumstances extend to the availability of evidence by way of a statement from Mr Skouloudis, since deceased, or as a result of information provided by Mr Skouloudis. It was not correct to have regard only to whether Mr Skouloudis would have been alive at the estimated time of the hearing.

4 In my opinion the likelihood is that service of the statement of claim would have caused the insurers to take a detailed statement from Mr Skouloudis, one responding to the more precise allegations to be found in the statement of claim, in the seventeen months prior to August 2003. It can not be known what Mr Skouloudis would have been able to provide to assist a defence, in particular in relation to his consideration at the time of how to deal with the presence of Mr Dalamangas, and I agree that the prejudice from Mr Skouloudis’ death prior to occasion to take the detailed statement is properly regarded as substantial.

5 The trial judge’s decision that it was just and reasonable to extend the limitation period was founded on flawed assessment of the prejudice to the defendants. In all the circumstances, including the reservations expressed by Campbell JA concerning the reasonableness of the actions of Mr Simon Maxwell it is not just and reasonable.

6 I agree with the orders proposed by Campbell JA.

7 IPP JA: I agree with Campbell JA.

8 CAMPBELL JA:

9 In the early hours of Sunday 25 April 1999 George Giannopoulos (“the Deceased”) was stabbed and killed by another patron while at the Knossos nightclub at 325 Burwood Road, Belmore. All the statements taken from witnesses identify his assailant as Jim Dalamangas.

10 On 26 June 2003 Kathy Giannopoulos (“Kathy”), the widow of the Deceased, filed a Statement of Claim in the District Court. It named as defendants Mr Jim Skouloudis (“Skouloudis”), and Knossos Nightclub Pty Ltd (“the Company”). The Statement of Claim alleged that either Skouloudis or the Company was the occupier of the premises and had the care, control and management of them, and that the death of the Deceased arose from the negligence of one or other of the defendants. The action was brought by Kathy seeking damages for nervous shock she claimed to have suffered, and also damages on behalf of herself and her two children pursuant to the Compensation to Relatives Act 1897.

11 Also on 26 June 2003 Mrs Marlene Giannopoulos (“Marlene”), the mother of the Deceased, filed a Statement of Claim in the District Court, seeking damages from Skouloudis and the Company for nervous shock she claims to have suffered in consequence of the death of the Deceased.

12 Each of the Statements of Claim made similar allegations against the defendants. The negligence of the defendants was alleged to arise, in broad terms, from the inadequacy of the security arrangements at Knossos nightclub. The particulars of negligence were:

“(i) Failing to have adequate security in place.

(ii) Permitting a known-troublemaker (“the assailant”) to enter the premises.

(iii) Failing to restrain the assailant.

(iv) Permitting the assailant to carry weapons onto the premises.

(v) Failing to protect the deceased when it was apparent he was in danger.

(vi) Failing to take any adequate precautions for the safety of the Plaintiff.

(vii) Failing to remove the assailant from the premises when he was behaving in a violent and threatening manner; and

(viii) Failing to safely escort the deceased from the premises when it was obvious he was in danger.”

13 Each Statement of Claim also alleged the tort of breach of statutory duty, alleged to arise from various breaches of section 125 Liquor Act 1982. Those breaches were, broadly, permitting violent conduct on the premises, supplying liquor to an intoxicated person, and permitting quarrelsome conduct on the premises.

14 On 5 August 2003 Skouloudis died. The Company had been placed into liquidation on 20 November 2001, and was deregistered on 20 March 2004.

15 The Company had taken out an insurance policy with a syndicate of Lloyds Underwriters (“the Underwriters”). The policy contained a promise to indemnify concerning the Company’s liability to pay compensation for personal injury caused by an occurrence in connection with its business. The Underwriters have now been joined as the defendants in the proceedings.

16 After the Underwriters had filed an Amended Defence asserting that each of the actions was statute barred, Kathy and Marlene each filed a Summons on 27 April 2007 seeking an extension of the limitation period to 26 June 2003.

17 Her Honour Judge Balla heard that application on 22 and 23 January 2008. On 29 January 2008 her Honour granted each application for extension.

18 These proceedings are an application by the Underwriters for leave to appeal from the decision of her Honour, and concurrent hearing of the appeal if leave is granted.

19 The case has been conducted on the assumption that each cause of action that Kathy and Marlene assert for their own benefit accrued on the date of death of the Deceased. Because the Deceased died after 1 September 1990, but before 6 December 2002, the applicable limitation period for Marlene’s action, and also for Kathy’s action insofar as she sought damages concerning her own nervous shock, was three years running from the date on which the cause of action first accrued: section 18A Limitation Act 1969. Insofar as Kathy’s action was brought under the Compensation to Relatives Act, its limitation period was also three years running from the date of death of the Deceased, pursuant to section 19(1)(b) Limitation Act.

20 Thus each Statement of Claim, insofar as it asserted causes of action for the benefit of Kathy and Marlene personally, was 14 months out of time at the time it was filed. It was common ground that Kathy’s action was filed in time insofar as it sought compensation for the benefit of her children.

21 Apart from the cause of action alleged in Kathy’s proceedings to arise under the Compensation to Relatives Act, any extension of time is made under section 60C(2) Limitation Act, which provides:

“If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines.”

22 Insofar as Kathy’s action asserts a cause of action arising under the Compensation to Relatives Act, any extension of time is granted pursuant to section 60D(2) which provides:

“(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order:

(a) that a limitation period for the cause of action of the deceased for the wrongful act, neglect or default in relation to the cause of action that the applicant claims to have be extended for such period, not exceeding 5 years, as it determines, or

(b) that a limitation period for the cause of action that the applicant claims to have be extended for such period, not exceeding 5 years, as it determines,

or both.”

23 In the present case, Kathy makes no claim for a cause of action that the Deceased had for a wrong done to him before his death, so section 60D(2)(a) is not applicable. Thus, any extension of Kathy’s limitation period would be made under section 60D(2)(b).

24 In exercising its powers under section 60C or section 60D, the Court is constrained by section 60E, which provides:

“(1) In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:

(a) the length of and reasons for the delay,

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available,

(c) the time at which the injury became known to the plaintiff,

(d) the time at which the nature and extent of the injury became known to the plaintiff,

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant’s act or omission,

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action,

(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received,

(h) the extent of the plaintiff’s injury or loss.

…

(4) In the application of this section to an application for an order under section 60D (2) (b), references in subsection (1) to the plaintiff include references to the personal representative of the deceased, and the beneficiaries, or any of them, as appropriate in the circumstances.”

25 For completeness I mention that section 63 provides for the extinction of a cause of action to recover damages upon the expiration of a limitation period. Were it not for section 60M, section 63 would have the effect that all the causes of action sued on in the present litigation were extinguished on the expiry of three years running from 25 April 1999. However, section 60M provides:

“(1) Applications and orders may be made under Subdivision 2 or 3 as if Division 1 of Part 4 had never been in force.

(2) An order for the extension of a limitation period, and an application for such an order, may be made under Subdivision 2 or 3 even though the limitation period has already expired.”

26 Section 60C and 60D are in Subdivision 2, while section 63 is in Division 1 of Part 4. Thus, in its application to the present case, section 60M means:

“(1) Applications and orders may be made under section 60C or 60D as if section 63 had never been in force.

(2) An order for the extension of a limitation period, and an application for such an order, may be made under section 60C or 60D even though the limitation period has already expired.”

27 The effect of section 60M is that, even though the three year limitation period had expired at the time the Statements of Claim were filed on 26 June 2003, it was possible for an application to be made to extend the limitation period for a period not exceeding five years from the date of expiry of the primary limitation period. The order actually sought, and made, extended the limitation period to the date when the two Statements of Claim were filed, which was within the five year period permitted by section 60C and 60D.

The Sequence of Events

The Police Investigation

28 The police commenced an investigation promptly concerning the circumstances of the death of the Deceased. On 26 April 1999 Skouloudis made a written statement for the police. Concerning the club, he said:

“I regularly attend functions there, about three times a week. When I attend there I welcome people at the front door, supervise staff and ensure that the business is being conducted in a proper manner.”

29 He and his wife were at the club from about 12:30am on the morning the Deceased died. His statement set out in some detail the events that happened that night and culminated in the death of the Deceased. Part of his account was that at about 1:00am the club manager told him that Jim Dalamangas was at the front door seeking admission. Skouloudis said to the manager “If we refuse to let him in the club it might be a problem, if we allow him there might still be a problem. Let him in and at least we can police his moves, and if he makes the slightest little moves or problems, you alert all the staff to be ready to call the police.” The statement says “I did not want Dalamangos [sic] in the club because I had been told by the previous owner of the club that when he comes in he always causes trouble and looks for fights.”

30 Skouloudis stated that at one time he told his wife to go to the office of the club, which was in an elevated position and had a one-way window from which one could look down over the patrons of the club. Skouloudis says that he then went to the foyer, and on his way there a number of his staff told him that Dalamangas was watching all his movements. It was after that that the Deceased entered the club. The statement then says (without further elaboration) that Skouloudis then requested the manager and the two lead singers to close the program one to one half hours earlier, “I'm getting bad vibes here, I don't like it.” The statement then continued to give a description of the events that culminated in the Deceased being stabbed.

31 On 25 April 1999 the police also took a statement from George Karantzias. He had worked at the club for eight months, and by the time of the death of the Deceased had been promoted to Night Manager. He said the club was open four nights a week. He gave a statement to the police concerning the events relating to the night in question. It included a freehand plan of the layout of the interior of the club, and a brief account of the nature of the club and its clientele. He stated that on Saturday, 17 April 1999, the week before the Deceased was killed, Dalamangas and his cousin had come to the club and remained at their table when all other patrons departed at 3:30am. Karantzias says, “I was aware through the Greek community and the press of who Dalamangas was. For this reason I was not about to chance a confrontation so I decided to be patient and wait until he was ready to leave. About 5:30am Dalamangas and his cousin left the club and I locked up and we all left.”

The Insurance Notification

32 On 27 April 1999 an underwriting service organisation called The Cameron Group sent a fax to Carlingford Insurance Brokers headed “Knossos Restaurant/Club – Liability Claim”, and attaching what it referred to as a “claim form”. I would infer that Carlingford Insurance Brokers were brokers involved in obtaining the policy that was issued by the Underwriters, and had requested the form after being told of the incident in which the Deceased was killed.

33 On 27 April 1999 Carlingford Insurance Brokers Pty Ltd sent to Skouloudis what it described as an “incident report form”, for completion and return. Carlingford Insurance Brokers told him:

“Your insurer has recommended that you only discuss this matter with the police.”

34 On 10 May 1999 Skouloudis signed a form headed “Accident Report Form – Public Liability Insurer” and sent it to Carlingford Insurance Brokers. It gave notice that the Deceased had been killed at the club. In response to a request for information about who was considered responsible for the incident, it said “refer police report”. The Underwriters accept that they first became aware of the incident on 23 June 1999.

35 In July 1999 the Carlingford Insurance Brokers advised The Cameron Group, in response to a question, that the claim was “for notification purposes only”. While the insurance policy provided indemnity for legal liability to pay compensation in respect of personal injury that happened during the period of insurance, and was not a policy of the “claims made and notified” type, it contained an obligation for the insured to notify the underwriters in writing “as soon as possible of every Occurrence … in respect of which a claim may result under this Policy”.

36 In late 1999 Kathy and Marlene instructed Xenos Jordan, Solicitors, who lodged victims’ compensation claims on behalf of them and Kathy’s children. The solicitor who handled that claim did not say anything about bringing a negligence claim against the owners or operators of the nightclub, or any time limit for suing the nightclub.

37 The judge made the following findings, that Mr S Donaldson SC, counsel for the Underwriters, does not criticise:

“In about December 2000 Kathy Giannopoulos consulted Simon Della Marta a solicitor at Gells, lawyers. At some stage he told her that she might have a claim in negligence against the nightclub because they had let in a known troublemaker with inadequate security. However he did not tell her that there was a three year period within which any claim would have to be brought.

In early March 2002 Mr Della Marta told Kathy Giannopoulos that he had obtained a report from a security expert which supported her case against the nightclub.

There is in evidence a letter from Mr Della Marta to Kathy Giannopoulos dated 11 March 2002 enclosing the report. He told her that the expert evidence supported her claim and that he would retain counsel to provide advice and commence proceedings on her behalf.

The plaintiff then attended a conference with Mr Della Marta on 21 March 2002 and made a statement. It was sent to her by letter dated 22 March 2002 for correction. The letter does not mention the limitation period.

Kathy Giannopoulos said she was unhappy with the way the solicitor spoke to her – she was depressed, unemployed and struggling to cope. On 26 April 2002 he told her that the owner of the nightclub was avoiding him and refusing to identify his insurer. Without that information he was unable to commence proceedings.

There was affidavit evidence from Mr Della Marta. He was not cross examined. When he received instructions his first priority had been to find out as much as he could about the police investigation. He took statements and made a Freedom of Information application. The documents were not released because the police investigation was continuing. He retained an expert who attended at the club and received his report dated 11 March 2002.

Mr Della Marta briefed Mr Michael Maxwell. The observations do not mention the limitation period. The plaintiff and Mr Della Marta attended a conference with Mr Maxwell on 28 March 2002. Mr Della Marta said that Mr Maxwell had advised him to properly identify the defendant and the insurer. This had not been completed when the plaintiff changed solicitors.

Mr Della Marta says:

“On 30 April 2002 I had a telephone attendance on Michael Maxwell advising of the position and he confirmed advice that if the insurance particulars are identified then a limitations application can be made to commence the application out of time”.”

38 The judge accepted that Kathy and Marlene were personally unaware that they had three years in which to bring a claim.

39 Concerning the diligence of Mr Della Marta, the judge found:

“I am satisfied that the evidence showed that he was reasonably diligent in pursuing the interests of the plaintiffs. There were unusual difficulties. Initially there was a delay in obtaining information from the police because their investigations were continuing. He took statements from a number of witnesses and tried to obtain information from Mr Skouloudis. He retained a security expert to assist him in ascertaining what had occurred and to advise him whether there was any basis on which his clients could show that the operators of the club had been negligent. From May 2002 he started writing letters to attempt to ascertain whether there was an insurer. I accept that it was reasonable for him to want to ensure that the nightclub was insured in circumstances where the proposed second defendant was in liquidation.”

40 Mr Donaldson does not challenge these findings, but submits that Mr Della Marta gives no explanation for failing to commence the proceedings in time once he had the security expert’s report. Mr Donaldson submits that there is no mention in his evidence of being aware of the limitation period, and that it would be reasonable to proceed on the basis that he overlooked the fact that time was about to expire. Because Mr Della Marta was not cross-examined, I would decline to draw an inference to that effect. That leaves one with the limitation period expiring, and no explanation specifically directed to why it was allowed to expire.

41 What Mr Della Marta did towards advancing the Respondents’ case should for present purposes be recounted in a little more detail than her Honour recorded. It was on 6 August 2001 that he requested a report from an expert on security arrangements, concerning the adequacy of the security arrangements at the club. By 6 August 2001 Mr Della Marta had ascertained that the police investigation of the murder was complete. However he had still not obtained the police brief of evidence, though he had tried to obtain it through informal requests, then by an application under the Freedom of Information Act 1989. He had obtained statements himself from various witnesses.

42 One of those witnesses was Peter Paraskevopoulos, who had worked at the restaurant on Friday and Saturday evenings for 14 months preceding the night the Deceased was killed. His statement included details of the nature of the entertainment provided, the number of people the venue could hold, the total number of people employed there, and the total number of people employed to perform jobs of particular types at the restaurant. He stated, concerning the situation with security:

“I learnt that because the waitering staff knew everybody it was because they had been in game so long they could sense something was going to happen or someone had too much to drink, or if there was going to be trouble and they could intervene and could defuse the situation. They generally would defuse the situation by just talking to people. As a result of the experienced nature of the waitering staff it didn’t seem necessary, to me at least, and probably to the owner, to have security staff. I do know however, that the owner of the restaurant had security staff on and off. I was not intratically [sic] involved in the management side. I would just show up for work, operate the cash register and then go home.”

43 He said that on the night the Deceased was killed:

“I don’t quite know whether or not there was a doorman on duty. The usual protocol was to be for one of the waiters to just stand at the door, just to open the door to welcome the patrons in. The restaurant never got to the stage where it would be necessary to restrict the entry of any patrons to regulate how many people were in the premise. I am sure the owner would have loved that to have occurred but the level of interest of the restaurant hadn’t gotten to that stage. …

The manager who was on duty on the evening of the murder was someone who had a security licence. This manager was in charge of security.”

44 On the night the Deceased was killed Mr Paraskevopoulos was working as a cashier behind the bar. He gave a fairly detailed account of the circumstances leading up to the murder, as he observed them.

45 Mr Della Marta also obtained a statement from Sozo Loukis, a patron at the nightclub on the night of the murder. He also gives an account of the circumstances of the murder.

46 Mr Della Marta also obtained a statement from Con Karabetsos, another witness to the murder. In a supplementary statement he says that there was a doorman at the club on the night of the murder, and describes him, in terms that are not altogether consistent:

“5. The doorman fellow is a skinny little fellow he is only about medium height and his is slightly built. He is actually quite skinny, not built at all. He would be no match for someone like Delamangas.

6. The doorman was about 5 foot 11 tall and medium built. He [w]as on the door when we came in.”

47 A common theme of the statements of Mr Paraskevopoulos, Mr Loukis and Mr Karabetsos is that when trouble started to brew between the Deceased and Dalamangas it was waiters who intervened to try to calm the situation, not specialist security staff. Con Karabetsos’ statement says:

“The waiters in the restaurant could not be considered to be security people because they were not strong beefy people. They were waiter types and they were men in their advancing years.”

48 Kathy consulted Mr Simon Maxwell on 1 May 2002. On the same day Mr Simon Maxwell wrote to Mr Della Marta at Gells Lawyers, enclosing an authority for transfer of her files and those of her children. His letter says:

Our client has instructed us to make an application to extend time and in that respect, time is of the essence.”

49 Mr Simon Maxwell wrote to Gells again on 15 May 2002, pressing for the files given to him, reminding them that the limitation period expired, and saying:

“We note your comments that you hold the view given the insurance situation that it was not appropriate for Mrs Gianopoulos to proceed with her claim. We are not in a position to assess this issue. Time continues to run and assuming Mrs Gianopoulos does decide to bring an extension of time application, the defendant may be in a position to alleged prejudice as a result of this delay."

50 Mr Simon Maxwell did not actually receive the files relating to the claim of Kathy and her children until 3 July 2002.

51 Around this time Marlene also changed from instructing Mr Della Marta to instructing Mr Simon Maxwell. Mr Maxwell received her file on 15 July 2002.

52 During the period between 1 May 2002 and 3 July 2002 Mr Della Marta was continuing to advance the Respondents’ case. He wrote to Booker International Pty Ltd (an entity that had executed the insurance certificate on behalf of the insurers) on 17 May 2002. The opening paragraphs of his letter were:

“We act for Mrs (Marlene) Giannopoulos in her claim for damages for injuries sustained by her as a result of the death of her son at the business premises of Knossos Nightclub Pty Limited on 26 [sic] April 1999 at 325 Burwood Rd, Burwood [sic].

We have been contacted by Mr Skouloudis, the director of Knossos Nightclub Pty Limited that insurance coverage for occupiers liability had been taken out over the business premises by Knossos Nightclub Pty Limited through you.”

53 On 3 June 2002 Mr Della Marta wrote to Carlingford Insurance Brokers, saying that Skouloudis had informed him that insurance coverage for occupiers’ liability had been taken out over the business premises by Knossos Nightclub Pty Ltd through Carlingford Insurance Brokers. He requested information on whether they held any records, could advise whether the premises had insurance cover, and details of the insurer and terms of the insurance. Initially on 11 June 2002, Carlingford acknowledged that Knossos had a policy at the time of the incident and that the underwriters’ agent had been notified of the event, but declined to provide any further information without written instructions from their client due to “privacy laws”. However, by 25 June 2002 that obstacle had evidently been overcome, as Carlingford wrote to Mr Della Marta enclosing copies of documents relating to the original notification of the incident in 1999 (para [32]-[35] above), and a “Certificate of Insurance” issued by Booker International. That certificate set out all the terms of the policy, identified the underwriter as being “Certain Underwriters at Lloyd’s”, and gave the contract number IH98AAQS. The insured was identified as “Knossis [sic] Nightclub Pty Ltd”, the “occupation” was stated to be “nightclub/restaurant”, and the situation of the risk was stated to be “325 Belmore Road, Belmore” when in fact, the correct address was 325 Burwood Road, Belmore.

54 On 11 July 2002 Mr Simon Maxwell reviewed the file, and sent a brief to Mr Michael Maxwell (who is not a relation), “to advise on liability, to advise on identity of defendants and to draft statement of claim”. It will be recalled that the Certificate of Insurance misspelt the name of Knossos Nightclub Pty Ltd, and that by this time Knossos Nightclub Pty Ltd was in liquidation. As well, Mr Simon Maxwell gave some evidence which, although fairly vague, was not challenged in cross-examination that:

“I believe I even had some confusion there because this was an upstairs nightclub, there was confusion in the paperwork over who owned or who had the lease over certain parts, who were the registered proprietors of the building.”

55 On 12 July 2002 Mr Simon Maxwell wrote to Booker International, referring to a letter that Gells had written to it on 3 June 2002 requesting information about the insurance policy, and asking for that information to be provided if it had not already been. The letter written concerning Marlene opened by saying:

“We act for Mrs Marlene Giannopoulos in relation to a claim for damages for injuries sustained by her as a result of the death of her son at business premises known as Knossos Nightclub on 26 April 1999 at 325 Burwood Road, Burwood [sic].”

56 The request for information about the insurance policy is puzzling, as Mr Simon Maxwell’s affidavit states that amongst the documents that he received from Gells on 3 July 2002 was a “Certificate of Insurance”, which he annexes to his affidavit. Notwithstanding its name, that “Certificate of Insurance” is a full policy wording.

57 Mr Simon Maxwell also, on 12 July 2002, wrote to Carlingford Insurance Brokers in much the same terms as he wrote to Booker. He also wrote to the liquidators of Knossos Nightclub Pty Ltd trying to ascertain information. He was unsure how to deal with a claim against a company in liquidation. As well, he had a practical problem about whether the litigation was worth pursuing. He said, in evidence that was not challenged, that concerning Skouloudis it:

“… had been reported to me, gossip and hearsay, he was in financial difficulty, so I was concerned about whether there was going to be anyone against whom a judgment could be obtained there; and I’d already received a huge file from Gells with a bill for $20,000. I could see that if there was going to be – that if we were going to pursue the claim, then the costs involved were going to be significant …”

58 On 7 September 2002 Booker International replied to Mr Simon Maxwell, saying:

Knossis Nightclub & Giannopoulos

We refer to your correspondence 12th July 2002 and apologise for the delay in our reply.

We can confirm that our office issued a policy of insurance on behalf of Underwriters at Lloyds of London to Knossis Nightclub, the policy being current at the 26th April 1999.

In view of the provisions of the privacy act we are not able to provide specific details of the cover provided nor a copy of the policy without our insureds written consent.

We suggest you write to our insured direct for this information.”

59 In other words, Booker used twice in that letter the misspelling of “Knossos” that is contained in the Certificate of Insurance.

60 It was not until 21 October 2002 that Mr Simon Maxwell received a pleading from counsel. He explained the circumstances as being:

“I wrote six letters to counsel between 11 July 2002 and 21 October 2002, increasingly strident requests for an urgent draft pleading, to the extent that on 21 October 2002 I asked counsel to return the brief and then on the afternoon of 21 October 2002 I received the draft pleadings, which were done by a junior counsel, not the counsel who I originally wrote.”

61 The draft pleading nominated Skouloudis and Knossos Nightclub Pty Ltd as alternative defendants, but did not recognise that Knossos Nightclub Pty Ltd was in liquidation.

62 On 30 January 2003 Mr Simon Maxwell requested medical reports from Irene Pantsos (Marlene’s treating psychologist), Gina Paleologo (Kathy’s treating psychologist) and a Dr Kingsley (Marlene’s and Kathy’s general practitioner). He gave evidence that he received the report from Ms Pantsos in about March 2003. It appears from a letter he wrote when serving reports relating to Marlene's claim that the report of Ms Pantsos is dated 12 February 2003. Though Mr Simon Maxwell was imprecise in evidence about when the report from Ms Paleologo was received (save that it had been received before the Statement of Claim was issued), it appears from the letter he wrote when serving the Statement of Claim on Booker International that Ms Paleologo’s report is dated 7 March 2003.

63 Another reason for delay that Mr Maxwell gave was:

“… at that time, [as a] sole practitioner, I wasn’t in a position to pay any disbursements and I wrote to both plaintiffs asking them for their $408 filing fee and that took some time to come in as well, neither of them being in a strong financial position.”

64 After the proceedings had been commenced on 26 June 2003 they were, for practical purposes, made known to the Underwriters by being sent to Booker International, under cover of a letter dated 22 July 2003.

65 The proceedings were served on Skouloudis on 24 July 2003. He did not file a defence before he died on 5 August 2003.

66 As the submissions made on the appeal did not suggest that any events later than these bore upon whether it was appropriate to grant the extension of time, it is unnecessary to recount in any detail events later than this. However, I mention that the solicitors for the Underwriters wrote to the liquidator seeking any documentation or information that would have been in the possession of Knossos Nightclub Pty Ltd, that was passed to the liquidator, and that might assist them in assessing the Underwriter’s liability with respect to the claim. The liquidator replied on 20 August 2007, saying:

“1. The director of the Company, Jim Skouloudis, provided no documentation or information in relation to the Company.

2. I wrote to the Australian Securities and Investment Commission and informed them of Mr Skouloudis’ non compliance. He was subsequently prosecuted and fined.

3. I did not receive any documentation or information whatsoever from Mr Skouloudis or from any other person or entity associated with or related to the Company.”

67 After noting that it was common ground that the onus remained on the Respondents to show that in all the circumstances of the case it was just and reasonable to extend the limitation period, her Honour addressed seriatim the various factors listed in section 60E(1) Limitation Act. Of those factors, the judge gave by far the most attention to section 60E(1)(a) “the length of and reasons for the delay”, and the prejudice factor referred to in section 60E(1)(b).

Reasons Re Length of and Reasons for Delay

68 Concerning the length of and reasons for the delay, her Honour noted that the Respondents were unaware that they had three years in which to bring a claim, that they acted reasonably promptly in obtaining legal advice, and that “they were entitled to rely on and accept that advice”. I have set out her findings concerning Mr Della Marta’s activities at para [39] above.

69 Concerning the time between Mr Simon Maxwell first receiving instructions on 1 May 2002 and receiving the file on 3 July 2002, her Honour said:

“The correspondence in evidence discloses that this time was spent by the solicitors in coming to an agreement on the terms on which the files would be released. In my view the delay is fully explained and not excessive. I take into account that Mr Della Marta was continuing with his inquiries during this two month period by trying to speak to Mr Skouloudis and continuing to correspond with the insurance broker and liquidator.”

70 Concerning the period between 3 July 2002 and the filing of the Statements of Claim, her Honour in recounting the factual circumstances states incorrectly that, “the barrister did not provide him with a draft statement of claim until November 2002”. The uncontested evidence is that the draft Statement of Claim was provided on 21 October 2002. While that is an error of fact, I do not regard it as a material error of fact.

71 Her Honour’s conclusion about the delay between 3 July 2002 and the filing of the Statements of Claim was:

“Mr Maxwell did concede in cross examination that in his opinion there was sufficient evidence for Mr Della Marta to have filed the statements of claim before 26 April 2002. In my view however it was reasonable for Mr Maxwell to ensure that each element of the cause of action and the insurance issues were satisfactorily investigated before filing the statements of claim in circumstances where the time limit had expired.

On the one hand it is true to say that in that one year Mr Maxwell wrote three letters, briefed counsel and obtained two reports and that the time taken must have been excessive. However, taking into account the significant difficulties which he believed the plaintiffs had to overcome, I am satisfied that it was reasonable for him to brief counsel to ensure that there was a viable cause of action and to then request and obtain medical reports while confirming the claims would be defended by an insurer.”

72 Concerning the delay between the filing of the Statements of Claim and their service, her Honour said:

“Mr Maxwell thought the delay in serving the first defendant was due to the process server having to find him and said that the second defendant had been served by forwarding a copy to an entity associated with its insurer within the time permitted by the Rules. He had taken into account that he believed that they were on notice of the claim having receiving a claim form and later correspondence. I accept that this was reasonable in the circumstances.”

73 Her Honour then considered delay in the bringing of the applications for extension of time. Concerning that, her Honour found:

“The solicitor for the plaintiffs said that it was his understanding that the plaintiffs could commence proceedings and then see whether the defendant raised the expiration of the time limit as an issue in the defence. He then would have filed Notices of Motion seeking an extension of time. The initial defences filed in January 2006 had not asserted that the claims were statute barred. The issue was first raised almost one year later by letter dated 26 November 2006. The solicitor agreed to the filing of amended statements of claim on the basis that these applications would be made. Again I accept that this was reasonable in the circumstances.”

74 Without reference to any particular period during which delay had occurred, her Honour said:

“Knossis Nightclub”

I have reviewed and made findings in relation to the length of and reasons for the delay. I am satisfied that the complexity of the issues and the insurer’s failure to disclose information in a timely manner mean that the time taken was not unreasonable and that the delay has been fully explained.”

Reasons Re Section 60E(1)(b) Prejudice Factor

75 Concerning the prejudice factor, identified in section 60E(1)(b), the judge rejected a submission that delay had prejudiced the Underwriters’ ability to ascertain what, if any, kind of liquor licence was held in connection with the premises. Her finding in that respect is not challenged.

76 Next, her Honour considered prejudice arising from the death of Skouloudis. She accepted that the insurer would have sought instructions from Skouloudis in relation to those matters relied on by the Respondents as grounding the claim in negligence, and that “he may well have been the defendant’s principal witness if the matter had proceeded to a hearing when he was alive.” She said, “In my view the real issue is whether this is evidence which has been lost which would have been available if the proceedings had been commenced within time”. I note that that way of putting it is a fairly close paraphrase of the language of section 60E(1)(b).

77 In determining that issue, her Honour took into account two principal matters. The first was that the insurer had been informed about the incident before the filing of the Statement of Claim. The second was whether the defendant would have had the opportunity to seek instructions from and then call Skouloudis to give evidence if the proceedings had been commenced within time.

78 Concerning the first of those matters, her Honour noted that the insurer had received a “claim form” within a month of the death of the Deceased, which gave notice that the incident had occurred, but that the insurer was ultimately informed “for notification purposes only”.

79 She also noted that Booker International was aware not only of an incident, but of a claim, from the time Mr Della Marta wrote to Booker International on 17 May 2002. She refers to Mr Della Marta writing on 3 June 2002 to Carlingford Insurance Brokers in the same terms as he had written to Booker International, but there is no evidence of Carlingford Insurance Brokers passing on that letter to Booker International or the Underwriters. However, she notes that Mr Maxwell wrote again to Booker International by letter dated 17 July 2002. (This must be a mistyping, as the only letter to which she could be referring is that of 12 July 2002 (para [55] above).) Thus, she concludes:

“This is accordingly not a case where the defendant was first notified of a potential claim when it received the statements of claim. It knew from shortly after the incident that a serious incident had occurred at the insured’s premises in respect of which the insured considered it appropriate to forward an accident report form. From May 2002, that is more than one year before the death of Mr Skouloudis, it started to receive correspondence, through its associated entities, that someone had been killed at the insured’s premises and that at least one claim would be made for damages against the night club as occupier.”

80 Concerning the second factor relied upon, her Honour records the submission made to her as being:

“I was invited to infer that if the proceedings had been commenced within time the defendant’s solicitor would have had the opportunity, in the 16 months between April 2002 and August 2003 to get instructions from Mr Skouloudis and then call him to give evidence when the matter was listed for hearing.”

81 Her Honour said that she took the following matters into account in considering that submission:

“ • the only evidence from the defendant is an affidavit from the defendant’s solicitor who says he did not have an opportunity to confer with Mr Skouloudis. There is no evidence from the insurer as to the steps taken by it at any time. It has forwarded some documents to the plaintiffs’ solicitors which are in evidence. I infer that the insurer did not seek to obtain a statement from Mr Skouloudis after receiving the accident report form.

· [F]or the same reasons, I infer that the insurer did not seek to obtain a statement from Mr Skouloudis after the letters were sent in 2002.

· Booker International was served with the statements of claim on 22 July 2003. The solicitors were retained in October 2004. There is no explanation for this delay. The defences were filed in January 2006. Again there is no explanation for this delay. The defendants’ solicitor informed Mr Maxwell that the defendants would rely on the expiration of the time limit in a letter sent in November 2006. Again there is no explanation for this delay.

· [T]here is no evidence of the likelihood of the matter being listed for hearing within 16 months of April 2002. In view of the complexity of the matter and the number of witnesses from whom statements have been obtained I decline to infer that it is likely that the hearing would have been completed before August 2003 if they had been commenced within time.”

82 Her conclusion with respect to this second factor was:

“Taking these matters into account I decline to infer that:

· the insurer would have necessarily have acted in a timely manner and/or

· the hearing would have been completed

before the death of Mr Skouloudis if the proceedings had been commenced within time.

For these reasons I decline to find that the delay has caused any significant prejudice to the defendant because evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available.”

Ultimate Conclusion

83 After considering the various other factors listed in section 60E(1), in a way not criticised on the appeal, her Honour concluded her judgment by saying:

Finding

For these reasons I do not consider that granting the extension would result in significant prejudice to the defendant. Nor do I consider that the delay has made the chances of a fair trial unlikely.”

The Test for Appellate Intervention Concerning Section 60C, 60D and 60E

How the Sections Operate

84 It is convenient to state at the outset the way in which these sections operate. It is section 60C(2) and 60D(2) that creates the power of the Court to extend a limitation period. In each case, it is a precondition to the exercise of that power that the Court decides it is just and reasonable to extend the limitation period. If the Court so decides, it then has a power (as shown by the word “may”) to actually extend the limitation period. There is also a power to decide the time for which the extension should be granted, subject only to the period of the extension not exceeding five years.

85 Section 60E gives directions to the Court about the manner in which it is to go about the task of making the decisions required for the purpose of section 60C and section 60D. Because section 60E(1) requires the Court “to the extent that they are relevant to the circumstances of the case, to have regard to” each of the factors listed in section 60E(1)(a)-(h) a court needs to consider each of those factors in turn. It may be (as happened in the judgment in the present case) that the judge reaches a conclusion that one or more of the factors contained in the list is not relevant to the particular case that the judge is considering. Even so, coming to a decision about each factor, even if that decision is that the factor is not a relevant one, is part of the task required by section 60E. Sometimes one or more of the factors in section 60E(1)(a)-(h) will be manifestly irrelevant, or conceded to be irrelevant, and in such a case it would be sufficient for the judge to say so without elaboration.

86 A judge does not exhaust his or her duty under section 60E(1) simply by considering each of the factors listed in section 60E(1)(a)-(h). As well, to satisfy the direction to “have regard to all the circumstances of the case” the court should consider whether there are any additional factors that bear upon whether it is just and reasonable to extend the limitation period, and whether the court should actually extend the limitation period, that do not appear in that list.

87 Further, and very importantly, as Sheller JA said in Schering-Plough Pty Ltd v Page [2002] NSWCA 4 at [20]:

“… the section requires more than a recital of relevant factors without findings about how these factors bear on the just and reasonable question.”

Brisbane South Regional Health Authority v Taylor

88 Whilst one factor alone under section 60E(1) is not sufficient to demonstrate that it is just and reasonable to extend the limitation period, there can be situations where one of the factors listed in section 60E(1)(a)-(h) is enough by itself to enable a conclusion to be reached that it would not be just and reasonable to extend a limitation period. For example, in Australian Croatian Cultural & Educational Association “Braca Radici” Blacktown Ltd v Benkovic [1999] NSWCA 210, this Court concluded it was not just and reasonable to extend a limitation period in an action for personal injury brought against a voluntary association when the plaintiff was fully aware of the extent of his injuries within the limitation period, had advice about his rights during the limitation period, made a deliberate decision not to sue, but then sought to sue after the limitation period had expired, and after he had fallen out with various members of the defendant. That decision was reached even though the delay had not compromised the possibility of the defendants having a fair trial. Similarly, an application for extension of time should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant: Holt v Wynter [2000] NSWCA 143 at [119]; (2000) 49 NSWLR 128 at 147 per Sheller JA, (Meagher and Handley JJA, and Brownie AJA agreeing), applied to section 60C in Robinson v The Zinc Corporation Pty Ltd [2005] NSWCA 372 at [29]-[31] per Santow JA (Mathews AJA agreeing). In cases where no such shortcut to a conclusion that an extension of time should be refused is available, it is necessary for all the relevant circumstances of the case to be considered collectively to decide whether it is just and reasonable that the limitation period be extended, and whether the Court should actually extend it.

The Test for Appellate Intervention

89 The Respondents submitted that the judge’s decision in the present case could be reversed or modified only in accordance with the tests for appellate intervention in discretionary decisions. Appellate intervention concerning an exercise of discretion can only occur within the principles stated in House v The King (1936) 55 CLR 499 at 505 recently summarised by Heydon JA (Sheller JA and Studdert AJA agreeing) in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274. His Honour said, at [45] that a challenge to a primary judge’s discretionary decision can succeed only if the judge

“(a) made an error of legal principle,

(b) made a material error of fact,

(c) took into account some irrelevant matter,

(d) failed to take into account, or gave insufficient weight to, some relevant matter, or

(e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.”

90 It is insufficient that the judges of the appeal court would have exercised the discretion in a different way had they been exercising the discretion at first instance: Mace v Murray (1955) 92 CLR 370 at 378.

91 If one were to deal with this argument in its own terms, and enquire whether the judge's decision that it was just and reasonable to extend the limitation period was discretionary in the House v R sense, I would come to the conclusion that it was not. Rather, I would conclude that it was a question that involved application to the facts of a legal criterion. In a similar way, a conclusion whether established facts show that a defendant has acted negligently is not reviewed on the same test as is used for a discretionary decision: Warren v Coombes (1979) 142 CLR 531, esp at 553. In Warren v Coombes there was no issue about the existence of a duty of care (it will be recalled that the case involved a collision between a boy on a bicycle and a motorist), and, as the majority judgment of Gibbs ACJ, Jacobs and Murphy JJ said, at 536: “The question for decision … is whether the learned trial judge was correct in finding that the respondent was not negligent.” It was in relation to whether the trial judge was wrong in deciding there had been no breach of duty of care that their Honours said, at 551:

“… in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.”

92 It was also in relation to the question of whether the trial judge was wrong in deciding that there had been no breach of duty of care that their Honours said, at 552-553:

“… we can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case – the facts as well as the law – for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. Further there is, in our opinion, no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge. On the contrary we should have thought that the trial judge can enjoy no significant advantage in deciding such a question. The only arguments that can be advanced in favour of the view that an appellate court should defer to the decision of the trial judge on such a question are that opinions on these matters very frequently differ, and that it is in the public interest that there should be finality in litigation. The fact that judges differ often and markedly as to what would in particular circumstances be expected of a reasonable man seems to us in itself to be a reason why no narrow view should be taken of the appellate function. The resolution of these questions by courts of appeal should lead ultimately not to uncertainty but to consistency and predictability, besides being more likely to result in the attainment of justice in individual cases. The interest of the community in the speedy termination of litigation might, no doubt, be an argument in favour of the complete abolition of appeals, although that would be far too high a price to pay merely for finality. However, if the law confers a right of appeal, the appeal should be a reality, not an illusion; if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it.

93 When one recalls that the question “has a duty of care been breached” is shorthand for “has the defendant failed to take reasonable care to avoid the plaintiff suffering the type of harm concerning which the duty of care exists”, then Warren v Coombes provides no reason to believe that the question of “is it just and reasonable to extend the limitation period” that is posed by section 60C and section 60D should be approached by an appellate court in any different way.

94 There is support in the case law for this approach. The starting point is the decision of a unanimous House of Lords in George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803. When a statute made a contractual term not enforceable “to the extent that it is shown that it would not be fair and reasonable to allow reliance on” the term, Lord Bridge of Harwich, with whom all the other Law Lords agreed, stated the approach that an appellate court should take to a first instance decision about the application of that criterion (at 815-816):

“It would not be accurate to describe such a decision as an exercise of discretion. But a decision under any of the provisions referred to will have this in common with the exercise of a discretion, that, in having regard to the various matters to which the modified section 55(5) of the Act of 1979, or section 11 of the Act of 1977 direct attention, the court must entertain a whole range of considerations, put them in the scales on one side or the other, and decide at the end of the day on which side the balance comes down. There will sometimes be room for a legitimate difference of judicial opinion as to what the answer should be, where it will be impossible to say that one view is demonstrably wrong and the other demonstrably right. It must follow, in my view, that, when asked to review such a decision on appeal, the appellate court should treat the original decision with the utmost respect and refrain from interference with it unless satisfied that it proceeded upon some erroneous principle or was plainly and obviously wrong.”

95 However in Antonovic v Volker (1986) 7 NSWLR 151 at 154-156 Samuels JA (with whom Kirby P agreed) expressed (obiter, and notwithstanding that counsel for the appellant in the case had made a concession that the decision below was to be reviewed on the basis that it was discretionary) his disagreement with the approach to appellate review adopted by their Lordships in George Mitchell. Antonovic involved an appeal concerning whether a contract was “unjust” within the meaning of the Contracts Review Act 1980. Samuels JA said, at 154 “the decision required in the present case was not truly an exercise of judicial discretion”. Part of his reasoning for rejecting that approach was, at 155:

George Mitchell

96 The question of the approach an appellate court should take to review of a decision whether a contract is unjust arose for decision in Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256. Both Kirby P at 261-263 and Samuels JA at 270-271 reiterated the views they expressed in Antonovic but found that a decision concerning that question was not necessary to decide the case.

97 The question was finally decided in this court in Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41, where Handley JA at [100] and Basten JA at [107] held that a decision whether a contract is unjust is reviewable in accordance with the principles established in Warren v Coombes. Those authorities suggest that a decision about whether an extension of a limitation period is “just and reasonable” is not to be approached in the same way as is an appeal from a discretionary decision.

98 However, that a decision is not discretionary is not in itself determinative of the approach that should be taken to appellate review of that decision. A decision whether a deceased person has failed to make adequate provision for the proper maintenance, education or advancement in the life of an applicant (the “jurisdictional question” in the Family Provisions Act 1982 and similar legislation) has been held to be not a discretionary decision: White v Barron (1980) 144 CLR 431 at 434-435 per Barwick CJ (dissenting), 442-443 per Mason J, 448-449 per Aickin J (dissenting), cf 456-457 per Wilson J. Rather, it is “strictly one of fact, notwithstanding that it involves the exercise of value judgments” (Singer v Berghouse (1994) 181 CLR 201 at 210 per Mason CJ, Deane and McHugh JJ), and “though it involves the making of value judgments, is a question of objective fact to be determined by the judge at the date of hearing.” (at 211).

99 However, in Singer v Berghouse the majority, in a brief passage at 212, held that even though the jurisdictional question in Family Provision Act applications was not a discretionary matter, the principle that governed appellate review of discretionary decisions should apply to it. The only reason that their Honours gave for reaching that conclusion was that they specifically endorsed the following remarks of Kirby P in Golosky v Golosky [1993] NSWCA 111:

"Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged."

100 When Singer v Berghouse shows that finding that a decision is not discretionary is not enough to decide by reference to what principles an appeal from that decision should be conducted, one must seek guidance on that question from elsewhere. As Spigelman CJ noted in Perpetual Trustee Co Ltd v Khoshaba at [32]:

Fleming v The Queen

Dinsdale v The Queen

Coal & Allied Operations Pty Ltd v AIRC

Roy Morgan Research Centre Pty Ltd v State Revenue (Vict)

Fox v Percy

Weiss v The Queen

CSR Ltd v Della Maddalena

101 A recent example of that approach in the High Court is Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124. There, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ cast doubt on the value of categorising a decision as discretionary or not discretionary for the purpose of determining the principle upon which an appeal from it should be heard. Their Honours said, at [37]: "The varied use of the term ‘discretion’ is apt to create a legal category of indeterminate reference", and went on to give examples of various different senses in which "discretionary" was used in legal discourse. They concluded, at [40]:

"Rather different is the situation where statute creates a legal norm … and does so in terms which require for their operation in a given dispute the identification and evaluation of facts and assigns that fact-finding in the first instance to a judge sitting alone. The occasion for appropriate appellate intervention will depend upon the nature and scope of the particular statutory appeal for which the legislature provides. That inquiry is not advanced by describing the overall decision making process of the primary judge as "discretionary"."

102 The Limitation Act does not itself create any rights of appeal. Rather, the appeal to this court in the present case is brought under the general provision of section 127(1) District Court Act 1973, which provides: “A party who is dissatisfied with a Judge’s … judgment or order in an action may appeal to the Supreme Court”. The manner of conducting that appeal in the Supreme Court is dictated by section 75A Supreme Court Act 1970. There is nothing in the statutory provisions creating the right of appeal that suggests that the appeal is conducted in any different way than an appeal from a decision concerning whether certain facts amount to a failure to take reasonable care.

103 It can be taken as elementary that an appellate court exercising a general power to hear appeals of the type provided by section 127 District Court Act will interfere with a judicial decision only if the appellate court finds that there is error in that decision. What constitutes error can differ for different types of primary decision: Costa v Public Trustee of NSW [2008] NSWCA 223 at [14]-[19] per Hodgson JA, [32]-[49] per Ipp JA, [68]-[96] per Basten JA. It is unnecessary for present purposes to resolve any differences of emphasis between the three judgments in Costa.

104 Construction of the statute that creates the legal norm that the first-instance judge has applied could possibly bear upon how an appellate court deals with a decision under that statute in at least two ways. One way is that a consideration of the nature of the task that the first-instance judge is called on by the statute to perform, will reveal just what is involved in that task, which in turn informs a decision about what would be involved for such a decision to be wrong, as opposed to merely being one that the appellate judge would not himself or herself have arrived at. Another possible way (which might be just an aspect of the first way) is that a consideration of the purposes of the statute could inform whether a greater or lesser approach to appellate review of decisions under the statute would be consistent with those purposes.

105 The questions “Has the defendant failed to act with reasonable care?” and “Is it just and reasonable that the limitation period be extended?” are alike in that each of them can only be answered with a “yes” or “no”. In that way they differ from questions like “What sum is appropriate to compensate the plaintiff for the pain, suffering and loss of enjoyment of life he has suffered in consequence of the defendant’s tort?” or “What was the market value of this parcel of land at this date?”, or “To what extent is it just and equitable that the plaintiff have her damages reduced because of her contributory negligence?” The questions “Has the defendant failed to act with reasonable care?” and “Is it just and reasonable that the limitation period be extended?” are alike in that whether a “yes” or a “no” answer is given depends not only on pure matters of fact but also on a weighing of numerous different factors. In the case of a decision about whether a defendant has failed to act with reasonable care, the sort of factors that are taken into account include such matters as: what choices for action were open to the defendant, was the availability of those choices for action something that the defendant knew or ought to have known, were any of those alternative methods of proceeding ones that the defendant was required by legislation to follow, what type and seriousness of injury is predictable might happen if one of those alternative courses of action is not followed, what is the extent of the risk that injury will result if one of those alternative courses of action is not followed, what disadvantages to other people might arise from the various alternative ways of proceeding, how serious are those disadvantages and what is the risk of them arising, and what were the respective costs (to the defendant and anyone else) of following those various alternative methods of proceeding. In the case of a decision about whether it is just and reasonable to extend the limitation period, the factors are those listed in section 60E(1) and any other relevant circumstances of the case.

106 The evaluation of the various factors involved in making these decisions does not take place as a matter of the possibly idiosyncratic opinion of the judge who makes the decision. Any court’s decision about whether there has been a failure to exercise reasonable care takes place in a context where there has been an articulations by courts over decades, of what does, or does not, amount to taking reasonable care in a particular situation. These days some aspects of the decision may also be controlled by statute. The more useful judicial guides to what amounts to reasonable care in a particular situation are usually decisions of appellate courts, but sometimes a first instance decision concerning a novel situation also provides a useful guide. Those decisions themselves are a manifestation of very general values about how one member of society ought reasonably behave towards another, where those values are ones that the law itself both articulates and enforces. With time, decisions of appellate courts might show that there has been a movement in what the standard of reasonable care requires, in that a case that might have been decided in one way some decades ago might now be decided differently. If that happens, it is the current standards that are to be applied. The body of decisions on negligence law operates to some extent as an ostensive definition of what amounts to reasonable care – by reading the practical examples in the case law, one comes better to understand what is the practical reality of the standard of the reasonable care that the law imposes. It is this legally enforceable standard of how people ought to behave to each other that is applied in deciding whether there has been negligence, and that an appellate court applies in deciding whether a trial judge has come to an erroneous conclusion about whether there was a failure to take reasonable care. Coming to an understanding of what the legal standard is through reading the cases is a different sort of intellectual exercise to seeking directly to apply a decision in one case concerning whether there has been a breach of duty to another case.

107 Similarly in relation to the question of whether it is just and reasonable to extend a limitation period, the decision is made by references to standards of the law itself. The various purposes of having limitation periods articulated by McHugh J in Brisbane South, the policy of not exercising the power to extend in circumstances where the extension would result in significant prejudice to the potential defendant, and the disinclination (not necessarily amounting to an invariable practice) to grant an extension to a potential plaintiff who had made a deliberate decision not to sue are examples of such standards.

108 When an appellate court is deciding whether a first instance judge has erred in the evaluative task involved in deciding whether established facts amount to a failure to take reasonable care, it is recognised that the appellate court should give respect and weight to the conclusion of the trial judge: Warren v Coombes at 551, reiterated in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25]. Part of the need for that respect and weight arises from the trial judge having the advantage of matters of impression of the evidence and the feel of the trial that it is hard if not impossible fully to articulate in reasons for judgment (cf Biogen Inc v Medeva plc [1997] RPC 1 at 45 per Lord Hoffman). Because of that, the finding of the primary facts shades to some extent into their evaluation. It leads to the possibility that, in the inherently evaluative task of deciding whether there has been a failure to take reasonable care in a particular factual situation, the trial judge may have a more acute understanding of the nuances of that factual situation, and thereby have an advantage in evaluating the facts by the legal standard. But the fact that the task is evaluative is not a reason for appellate courts to stand back once they have reached the conclusion that the primary judge’s conclusion was wrong. In Warren v Coombes the majority, at 552, said that in deciding whether there had been a failure to exercise reasonable care they “should have thought that the trial judge can enjoy no significant advantage”. Their Honours did not say that the trial judge has no advantage at all. But the scope for advantage may be small, or on the facts of some cases non-existent. What the appellate judge needs to do is to consider whether the particular case in front of him or her is one where the trial judge had an advantage, if so in what did it lie; and whether, taking account of that advantage, the appellate judge comes to the view that the trial judge’s decision was wrong. If, in those circumstances, the appellate judge comes to the decision that the primary decision is wrong, that is in itself justification for correcting it.

109 The manner of an appellate court proceeding concerning the evaluative task of deciding whether it is just and reasonable to extend a limitation period seems to me to be the same in these respects as the task concerning review of a finding concerning breach of duty of care.

110 Whether an extension of a limitation period is just and reasonable involves no more complex an issue, nor an issue that is more open to variability of legitimate answers, than is a decision whether a defendant has acted without reasonable care. The considerations that led the High Court in Warren v Coombes to decide that a decision of whether there had been a breach of duty of care can be reviewed on appeal in the manner their Honours described seem to me to be ones that also apply to the present statute. The considerations that led the High Court in Singer v Berghouse to hold that an appellate court should review decisions concerning the jurisdictional question in family provision matters on the same tests as were conventionally regarded as applying to discretionary decisions are narrow, and, because of the reference to “a troublesome area” and the burden of costs on the “estate”, do not extend beyond the area of family provision. It may be – though I could not say it is clear – that those considerations involve considering how the objects of the Family Provision Act would be best advanced. I see nothing in the construction of the Limitation Act that leads to a conclusion that the way in which an appellate court decides whether there is error in a decision that it is just and reasonable to extend the limitation period should be different to the way in which it decides whether there is error in a decision that a defendant has, or has not, been negligent. In so far as there is a relevant purpose in the Limitation Act, it is that there should be limitation periods, but that they should be able to be extended in particular circumstances. Considering that purpose does not lead to appellate review of decisions about whether it is “just and reasonable” to extend the limitation period being approached any differently to decisions about whether a defendant has acted without reasonable care, or a contract is unjust. In all these circumstances I conclude that appellate review of a decision whether extension of a limitation period is just and reasonable, is conducted in the same way as Warren v Coombes requires an appellate court to review a decision whether there has been a breach of a duty of care.

111 It will may be that adoption of that approach to appellate review does not ever result, or only rarely results, in a different decision being arrived at to that which would be arrived at if the decision was reviewed on a House v R basis. Even so, it is important for this court to follow the correct principles in carrying out its appellate task.

112 The Applicants submit that a person applying for an extension of a limitation period “must adequately explain any delay by the person’s legal representatives in commencing proceedings.” I would not accept a proposition as categorical as this. There is nothing in sections 60C, 60D or 60E as prescriptive as the requirements contained in sections 43(2) and 52(3) of the now repealed Motor Accidents Act 1988, considered by this Court in Salido v Nominal Defendant (1993) 32 NSWLR 524, whereby a person seeking to avoid a time limitation “shall” or “must” “provide a full and satisfactory explanation for the delay”. Rather, section 60E(1) Limitation Act requires the Court to “have regard to” “the length of and reasons for the delay”, “to the extent that [it is] relevant to the circumstances of the case”. Further, that matter is to be had regard to as one of the potentially numerous list of “all the circumstances of the case”, that must be evaluated as a totality to enable the Court to decide whether it is “just and reasonable” to extend the limitation period, and whether the Court should actually exercise its discretion to do so. An example can illustrate the incorrectness of this submission of the Applicants. It is quite possible that a court could decide that it was just and reasonable to extend a limitation period even though there had been some unexplained delay, if other factors showed that there had been no material loss of evidence and the defendant had been appraised at an early time of the plaintiff’s intention to sue and of the detail of the proposed claim.

113 The Applicant in both proceedings criticises the finding of the judge that I have set out at para [71] above, that “it was reasonable for Mr Maxwell to ensure that each element of the cause of action and the insurance issues were satisfactorily investigated before filing the statements of claim in circumstances where the time limit had expired.” The Applicant submits, correctly, that expiry of a time limit provides no justification for the solicitor for a plaintiff taking greater care in investigating a potential claim than would be appropriate before the time limit had expired. However, it is far from clear to me that what the judge was saying, in the statement the Applicant criticises, involved the assertion or assumption that Mr Maxwell was entitled to take extra care because the time limit had expired. I am not persuaded that the judge made an error in the way the Applicant alleges.

114 The trial judge took into account, on the question of delay, that Booker International did not reply to Mr Simon Maxwell’s letter of 12 July 2002 to Booker International until 7 September 2002, and noted that even then Booker International “would not provide details of the cover or a copy of the policy”. While that finding is correct as it stands, it overlooks the fact that Mr Simon Maxwell had received a copy of the Certificate of Insurance from Gells on 3 July 2002, and thus had full information about the terms of the insurance policy from that date. Failure to recognise that fact has in my view led the judge into error in assessing the significance of the delay.

115 It is a feature of the judge’s reasoning that she reaches conclusions about the “reasonableness” of several aspects of Mr Maxwell’s conduct that contributed to delay, before embarking on a consideration of matters relating to prejudice. Any inquiry about whether an action or course of action was reasonable needs to be carried out bearing in mind “reasonable for the purpose of what”? In section 60C and 60D, the reasonableness that is relevant comes from the phrase “… the court … may, if it decides that it is just and reasonable to do so, order … that a limitation period … be extended" – ie, the reasonableness that is relevant concerns the decision of the court in extending the limitation period. The matters that section 60E(1)(a) require to be taken into account are matters of fact – how long was the delay, and what were the reasons for it. The reasons why a party or solicitor took steps that resulted in an action being commenced out of time is a necessary matter for the court to take into account under section 60E(1)(a), but those reasons are not the same as assessing the reasonableness of the actions of the party or solicitor in so doing.

116 There are various specific ways in which the judge has found that Mr Simon Maxwell acted reasonably – in ensuring that each element of the cause of action was investigated, in ensuring that the insurance issues were investigated, in briefing counsel to advise, and in obtaining medical reports. Concerning the delay in obtaining medical evidence, the trial judge said:

“However an explanation was given by Mr Maxwell who said he wanted to ensure that there were viable proceedings available to the plaintiffs before obtaining medical evidence.”

117 While all those courses of action would be reasonable from the point of view of endeavouring to minimise his clients’ costs, the same result does not necessarily follow from the point of view required by the statute of whether it is just and reasonable to extend the limitation period. No extra witness statement or expert report relating to liability was obtained by Mr Simon Maxwell, there is no evidence of advice (as opposed to a pleading) being obtained by him from counsel, and there is no satisfactory evidence concerning what he did or when to resolve such uncertainty as there was about whether the Company had an insurance policy that covered the circumstances of the death of the Deceased. That a little more than three months passed from the time counsel was first briefed to draft a Statement of Claim until the Statement of Claim was actually produced was not, in my view, explained in a way that makes that delay innocuous, so far as the justice and reasonableness of extending the limitation period is concerned. Failure to seek medical evidence until more than three months after the draft pleading was received, when no further information about viability of the claim appears to have come to hand during those three months, tends against a conclusion that extension of the limitation period is just and reasonable. There is no explanation, beyond possibly the impecuniosity of the Respondents, for the delay between receiving the last of the medical evidence in early March 2003 and the filing of the Statement of Claim on 26 June 2003.

118 While all these matters are ones that tend against it being just and reasonable to extend the limitation period, it is only in the context of all the other relevant factors that one can decide whether it is actually just and reasonable to extend the period. In the present case, these matters relating to delay must be assessed in conjunction with matters relating to prejudice caused by the delay. It is not possible to reach a conclusion about the reasonableness of the actions of Mr Simon Maxwell that is a relevant one for the purpose of sections 60C and 60D, without taking into account the other circumstances of the case that are relevant to whether the limitation period should be extended.

119 In my view her Honour was in error in placing weight upon the fact that the insurers had been informed about the incident before the filing of the Statement of Claim. The Accident Report Form that Mr Skouloudis signed on 10 May 1999 would reasonably be understood by the insurers as not involving the making of a claim, but merely the notification of circumstances that might possibly lead to a claim. Further, it was a notification by an insured of the possibility of a claim being made on the insured – it was not a notification by an intending plaintiff of a possible claim on the insured. Even when Mr Della Marta wrote to Booker International on 17 May 2002, informing it that there would be a claim for damages, that occurred at a time when the limitation period had already expired, and in any event the information that there would be a claim for damages was well short of a pleaded and particularised claim. Thus, during the whole of the time that the limitation period was running, Skouloudis and the insurers knew only that there had been a circumstance from which a claim might arise, and that a claim by a potential plaintiff had been neither made nor foreshadowed.

120 In my view the judge was mistaken in declining to find that the delay has caused prejudice to the defendant arising from the death of Skouloudis. His death occurred after the expiry of the limitation period, but before the order was made extending the limitation period. The statement that he gave to the police did not deal with all the matters that would be relevant to the Respondents’ claim. There was no occasion to take a statement from Skouloudis on the strength of the notification that he gave in 1999. Further, Mr Della Marta’s letter of 17 May 2002 to Booker International does not contain the sort of particularity that would be needed for solicitors to take anything like an adequate statement from Skouloudis. In my view, if proceedings had been commenced within time the likelihood is that a statement directed to the allegations made in the proceedings would have been obtained from Skouloudis before his death. Even if Skouloudis had died before the proceedings came on for hearing, his statement may have been admissible, with notice, under the Evidence Act 1995, and in any event his statement may well have provided information relevant to the conduct of the case, independently of the statement being admitted into evidence. The risk that a significant witness might have died before the proceedings came on for hearing is one of the risks that are incident to any litigation that is commenced within time. However, when a consequence of the delay in commencing the action is that the defendant does not have a statement from the man who may well have been its principal witness, and the risk that he might have died before the matter came on for hearing has now become a certainty, that amounts in my view to a substantial prejudice.

121 I bear in mind that there are other witnesses, from whom Mr Della Marta and the police obtained statements, who can give some evidence about what the security arrangements were at the club on the night in question. However, the particulars of negligence go beyond alleging that the security arrangements at the club were not of a type appropriate for the sort of venue it was (a matter which might be able to be satisfactorily resolved with expert evidence and evidence from witnesses still available about the type of security arrangements that were in place at the club). The particulars allege particular factual matters concerning the events of the night, on which Skouloudis’ evidence would have been material. For example, the allegation that relevant officers or employees of the Company permitted Dalamangas to carry weapons onto the premises would be made out only if one or other of those people knew or had reason to believe (or perhaps suspect) that Dalamangas had weapons on him when he entered the premises. (An allegation that one or other of those people did not take adequate precautions to find out whether Dalamangas had weapons on him would fall under the particular “failing to have adequate security in place” (see para [12] above)). The evidence of Skouloudis would have been relevant to that allegation. Whether the various failures alleged in particulars (iii), (v), (vi), (vii) or (viii) amount to a failure to take reasonable care will depend upon the precise circumstances in which those failures occurred, and what practical alternatives of action were open to the Applicant in those circumstances. The evidence of Skouloudis would have been material to those questions. As well, there are some aspects of Skouloudis’ statement to the police that call for explanation – what it was that caused Skouloudis to get “bad vibes”, and why it was that there were apparently no security staff at the club at the particular time the Deceased was attacked, when security staff were present on some other occasions. The importance of Skouloudis’ oral evidence is, if anything, highlighted by the absence of documentary evidence on these matters.

122 The ultimate finding of her Honour (set out at para [83] above) does not, in my view, address the relevant question. Even if her Honour were right in declining to find that granting the extension would result in a significant prejudice to the defendant, and in declining to find that the delay has made the chances of a fair trial unlikely, those non-findings would lead only to a conclusion that the Holt v Wynter shortcut to a decision that it would not be just and reasonable to extend a limitation period is not available. Before the limitation period could be extended it would still be necessary to take into account all relevant factors, and on the basis of the totality of them decide whether it was just and reasonable to extend the limitation period. The trial judge's reasoning does not address this question.

123 In these circumstances the decision of the judge below should be set aside. My finding that the death of Skouloudis has resulted in a substantial prejudice to the defendant is sufficient, in light of Holt v Wynter, to reach a conclusion that it would not be just and reasonable to extend the limitation period, and thus that the limitation period should not be extended.

124 I have read the reasons of Giles JA. I agree that his Honour has identified an additional respect in which the decision of the trial judge was erroneous.

125 I propose the following orders, in each of proceedings 40098 of 2008 and 40099 of 2008:

(1) Grant leave to appeal.

(2) Set aside the orders in the court below.

(3) In lieu thereof, order:

(a) summons filed 27 April 2007 dismissed with costs.

(b) proceedings dismissed with costs.

Suitors Fund Act

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24/03/2009 - Incorrect spelling of Coombes - Paragraph(s) 108 and 110

Citations

Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56

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CITATION:	Certain Lloyds Underwriters v Kathy Giannopoulos; Certain Lloyds Underwriters v Marlene Giannopoulos [2009] NSWCA 56 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	5 December 2008
JUDGMENT DATE:	20 March 2009
JUDGMENT OF:	Giles JA at 1; Ipp JA at 7; Campbell JA at 8
DECISION:	In each of proceedings 40098 of 2008 and 40099 of 2008: (1) Grant leave to appeal. (2) Set aside the orders in the court below. (3) In lieu thereof, order: (a) summons filed 27 April 2007 dismissed with costs. (b) proceedings dismissed with costs. (4) Respondent to pay costs of the Applicant of the proceedings in this court, and to have a certificate under the Suitors Fund Act 1951 if otherwise entitled.
CATCHWORDS:	LIMITATION OF ACTIONS – extension of limitation period – nature of the decision whether it is “just and reasonable” to extend the limitation period – proper approach to assessing the factors in Limitation Act 1969 section 60E(1) – role of “reasonableness” in assessing reasons for delay - LIMITATION OF ACTIONS – extension of limitation period – prejudice to the defendant – effect of the death of a witness – witness died outside the limitation period but after the filing of the originating process - LIMITATION OF ACTIONS – extension of limitation period – effect of extension of limitation period - APPEAL AND NEW TRIAL – appeal – general principles – proper approach to appellant intervention concerning a decision whether to extend a limitation period – nature of the first instance decision – whether application for extension of limitation period is a discretionary decision – whether principles which apply for appellate intervention of a discretionary decision apply to non-discretionary decisions - TORTS – negligence – whether a decision that a duty of care has been breached is a discretionary decision – proper approach to appellate review for a decision that a duty of care has been breached - LEGAL SYSTEM AND LAWYERS’ REASONING – use of ostensive definition
LEGISLATION CITED:	Compensation to Relatives Act 1897 Contracts Review Act 1980 District Court Act 1973 Evidence Act 1995 Family Provisions Act 1982 Freedom of Information Act 1989 Limitation Act 1969 Liquor Act 1982 Motor Accidents Act 1988 Suitors Fund Act 1951 Supreme Court Act 1970
CATEGORY:	Principal judgment
CASES CITED:	Antonovic v Volker (1986) 7 NSWLR 151 Australian Croatian Cultural & Educational Association “Braca Radici” Blacktown Ltd v Benkovic [1999] NSWCA 210 Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256 Biogen Inc v Medeva plc [1997] RPC 1 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Costa v Public Trustee of NSW [2008] NSWCA 223 Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803 Golosky v Golosky [1993] NSWCA 111 Holt v Wynter [2000] NSWCA 143 House v The King (1936) 55 CLR 499 Mace v Murray (1955) 92 CLR 370 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 Robinson v The Zinc Corporation Pty Ltd [2005] NSWCA 372 Salido v Nominal Defendant (1993) 32 NSWLR 524 Schering-Plough Pty Ltd v Page [2002] NSWCA 4 Singer v Berghouse (1994) 181 CLR 201 Warren v Coombes (1979) 142 CLR 531 White v Barron (1980) 144 CLR 431
PARTIES:	Certain Lloyds Underwriters Subscribing to Contract IH98AAQS - Appellant (40098/08 & 40099/08) Kathy Giannopoulos - Respondent (40098/08) Marlene Giannopoulos - Respondent (40099/08)
FILE NUMBER(S):	CA 40098/08; 40099/08
COUNSEL:	SR Donaldson SC; DA Moujalli - Appellants AC Bridge SC; CA Hart - Respondents
SOLICITORS:	Riley Gray-Spencer Lawyers, Sydney - Appellants Bale Boshev Lawyers, Toronto - Respondents
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2848/03; DC 2849/03
LOWER COURT JUDICIAL OFFICER:	Balla DCJ
LOWER COURT DATE OF DECISION:	29 January 2008