NEW SOUTH WALES COURT OF APPEAL
CITATION:
Conray v Scotts Refrigerated Freightways Pty Ltd [2008] NSWCA 60
This decision has been amended. Please see the end of the judgment for a list of the amendments.
FILE NUMBER(S):
40215 of 2006
HEARING DATE(S):
6 June 2007
JUDGMENT DATE:
11 April 2008
PARTIES:
Vladimir Conray - Appellant
Scotts Refrigerated Freightways Pty Ltd - Respondent
JUDGMENT OF:
Beazley JA McColl JA Simpson J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 1407 of 2004
LOWER COURT JUDICIAL OFFICER:
Naughton DCJ
LOWER COURT DATE OF DECISION:
22 March 2006
COUNSEL:
Ms S Norton SC with Ms E Welsh - Appellant
Mr K Rewell SC with Mr L Tyndall - Respondent
SOLICITORS:
Brydens Law Office LP - Appellant
Dennis & Company - Respondent
CATCHWORDS:
LIMITATION OF ACTIONS — extension of time to join defendant — application made on fourth day of trial — whether just and reasonable — exercise of discretion by court — principles — STATUTES — s 60C, 60E Limitation Act 1969 considered.
LEGISLATION CITED:
Civil Liability Act 2002
Civil Liability Amendment (Personal Responsibility) Act 2002
Legal Profession Act 1987
Limitation Act 1969
Limitation (Amendment) Act 1990
Motor Accidents Act 1988
Motor Accidents Compensation Act 1999
Workers Compensation Act 1987
Limitation of Actions Act 1974 (Qld)
CATEGORY:
Principal judgment
CASES CITED:
Australian Croatian Cultural & Educational Assoc ‘Braca Radici’ Blacktown Ltd v Benkovic [1999] NSWCA 210
Blackburn v Allianz Australia Insurance Ltd [2004] NSWCA 385; (2004) 61 NSWLR 632
Bluescope Steel Ltd v De Caires; ABB EPT Management Ltd v De Caires [2005] NSWCA 431
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271
Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128
House v R [1936] HCA 40; (1936) 55 CLR 499
Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Lemoto v Able Technical Pty Ltd & 2 Ors [2005] NSWCA 153; (2005) 63 NSWLR 300
McDonald v Commonwealth (1945) 46 SR (NSW) 129
Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd [1947] AC 1
Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626
Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643
Rutter v The State of New South Wales [2005] NSWCA 231
Salido v Nominal Defendant (1993) 32 NSWLR 524
Shering-Plough Pty Ltd v Page [2002] NSWCA 4
Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735
State of New South Wales v Judd [2003] NSWCA 355
Sydney City Council v Zegarac (1998) 43 NSWLR 195
TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1
TEXTS CITED:
DECISION:
1. Grant leave to appeal. 2. Notice of appeal to be filed…
Keep reading for free
Create a free CaseChat account to read Conray v Scotts Refrigerated Freightways Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2008] NSWCA 60
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the primary judge had erred in exercising his discretion by refusing to grant an extension of time under section 60C of the *Limitation Act 1969* (NSW) to join the respondent as a defendant. This required the court to consider the principles governing the exercise of such discretion, particularly in circumstances where the application was made late in the trial process, and to assess whether it was "just and reasonable" to grant the extension.
The Court of Appeal allowed the appeal, finding that the primary judge had misapplied the relevant principles. The court noted that the proposed amended statement of claim alleged that the respondent had care, management, and control of the trailer at the time of the accident and was negligent in failing to provide a safe system of work. While acknowledging the delay, the Court of Appeal considered that the prejudice to the respondent, if any, could be managed, and that the interests of justice favoured allowing the appellant to pursue its claim against the respondent. The court therefore set aside the order of the primary judge and extended the limitation period to allow the joinder.
Orders
Orders of the court
1. Grant leave to appeal. 2. Notice of appeal to be filed within seven days. 3. Appeal allowed. 4. Order of Naughton DCJ set aside. 5. Limitation period extended to expire on 5 May 2008. 6. Respondent to pay the appellant's costs of the appeal and of the application for leave to appeal. 7. Costs of the application for an extension of time before Naughton DCJ to be costs in the cause.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.