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 2009JUDGMENT 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 1970CATEGORY: 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…
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- AGLC
- Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56
- Case
- [2009] NSWCA 56
- Decision Date
CaseChat Overview and Summary
Certain Lloyds Underwriters appealed to the Court of Appeal of New South Wales against decisions of the primary judge that granted extensions of time to commence proceedings under the *Limitation Act 1969* (NSW). The underlying dispute concerned claims for damages arising from alleged negligence.
The Court of Appeal was required to determine whether the primary judge erred in exercising their discretion to extend the limitation period. Specifically, the court considered the proper approach to assessing the factors under section 60E(1) of the *Limitation Act 1969*, including the reasonableness of the plaintiff's delay in commencing proceedings and the prejudice to the defendant. The court also considered the effect of a witness's death on the assessment of prejudice, particularly where the witness died after the filing of the originating process but outside the limitation period. Furthermore, the court examined the principles applicable to appellate intervention in decisions concerning extensions of limitation periods, distinguishing between discretionary and non-discretionary decisions.
The Court of Appeal held that the primary judge had misapplied the relevant principles in granting the extensions of time. The court found that the reasons for the delay were not sufficiently reasonable and that the prejudice to the defendant, particularly the death of a key witness, had not been adequately weighed. The court emphasised that the decision to extend a limitation period is a discretionary one, and appellate courts will intervene where the discretion has been exercised on wrong principles or has miscarried.
Consequently, the Court of Appeal granted leave to appeal, set aside the orders of the court below, and dismissed the summons for an extension of time and the proceedings themselves, with costs awarded to the appellants.
The Court of Appeal was required to determine whether the primary judge erred in exercising their discretion to extend the limitation period. Specifically, the court considered the proper approach to assessing the factors under section 60E(1) of the *Limitation Act 1969*, including the reasonableness of the plaintiff's delay in commencing proceedings and the prejudice to the defendant. The court also considered the effect of a witness's death on the assessment of prejudice, particularly where the witness died after the filing of the originating process but outside the limitation period. Furthermore, the court examined the principles applicable to appellate intervention in decisions concerning extensions of limitation periods, distinguishing between discretionary and non-discretionary decisions.
The Court of Appeal held that the primary judge had misapplied the relevant principles in granting the extensions of time. The court found that the reasons for the delay were not sufficiently reasonable and that the prejudice to the defendant, particularly the death of a key witness, had not been adequately weighed. The court emphasised that the decision to extend a limitation period is a discretionary one, and appellate courts will intervene where the discretion has been exercised on wrong principles or has miscarried.
Consequently, the Court of Appeal granted leave to appeal, set aside the orders of the court below, and dismissed the summons for an extension of time and the proceedings themselves, with costs awarded to the appellants.
Orders
Orders of the court
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.
24/03/2009 - Incorrect spelling of Coombes - Paragraph(s) 108 and 110
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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