Commonwealth of Australia v Lewis

The Commonwealth of Australia appealed to the Court of Appeal of New South Wales against a decision of a single judge who had granted an extension of time for the respondent, Mr. Lewis, to commence proceedings. The dispute concerned Mr. Lewis's claim against the Commonwealth, and the central issue on appeal was whether the trial judge had erred in exercising their discretion to extend the limitation period under section 60G of the *Limitations Act 1969* (NSW).

The Court of Appeal was required to determine whether the trial judge had fallen into error in granting the extension of time. Specifically, the court had to consider whether the underlying principle of fairness of the trial had been properly applied, and whether the Commonwealth had been significantly prejudiced by the delay, particularly in relation to the alleged loss of evidence and inability to investigate the cause of action. Furthermore, the court had to review the trial judge's decision regarding the costs of the application for the extension of time.

The Court of Appeal found that while the trial judge had correctly identified the relevant principles for extending a limitation period, the judge had erred in the exercise of discretion concerning the costs of the application. The appellate court reasoned that the Commonwealth's opposition to the extension of time was not wholly unreasonable, and therefore, the usual order that a successful applicant for an extension of time should pay the respondent's costs was not appropriate in this instance.

Consequently, the Court of Appeal allowed the appeal in part. It confirmed the trial judge's order extending the limitation period to 18 October 2001. However, it set aside the trial judge's costs order and ordered the respondent to pay the appellant's costs of the application to extend the limitation period. The court also ordered the appellant to pay the respondent's costs of the trial.