Creevey v Barrois

Case [2005] NSWCA 264
CITATION:

Creevey v Barrois [2005] NSWCA 264
This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):

11/07/05
 
JUDGMENT DATE: 


15 August 2005

JUDGMENT OF:

Handley JA at 1; McColl JA at 5; Basten JA at 6
DECISION:

(1) Grant leave to appeal; (2) Appeal dismissed with costs
CATCHWORDS:

Limitations - extension of time to commence proceedings under Motor Accidents Act 1988 - whether a fair trial could be reasonably anticipated - whether prejudice suffered as a result of delay - whether lost opportunity to cross-claim against a third party - expiry of time to make cross-claim under s26 (1)(d) of the Limitations Act 1969
LEGISLATION CITED:

Motor Accidents Act 1988
Limitation Act 1969
Motor Accidents Compensation Act 1999
Motor Accidents Amendment Act 1995
Law Reform (Miscellaneous Provisions) Act 1946
Dust Diseases Tribunal Act 1989
CASES CITED:

Salido v Nominal Defendant (1993) 32 NSWLR 524
Brisbane South Regional Health Authority v Taylor (1996-97) 186 CLR 541
Holt v Wynter (2000) 49 NSWLR 128
Itex Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207
Nelson v Wyong Shire Council (1989) 68 LGRA 164
Yates v Costain Australia Ltd (1989) 18 NSWLR 312
Robins v Downes (1996) 24 MVR 180
Workers' Compensation Board of Queensland v Seltsam Pty Ltd [1999] 2 Qd R 679
Tekno Ceramics Pty Ltd v Milat [2003] NSWCA 254
Wallaby Grip (BAE) Pty Ltd (In Liq) v Eraring Energy (2004) NSWCA 269
Bossini v Independent Transport (WA) (1997) 25 MVR 65
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
PARTIES:

John Creevey (Appellant)
Peter John Barrois (Respondent)

FILE NUMBER(S):

CA 40606/04
COUNSEL:

P. Taylor SC/G. Gregg (Appellant)
M.R. Aldridge SC/P.N. Khandhar (Respondent)
SOLICITORS:

Phillips Fox (Appellant)
Maxwell Berghouse & Ives (Respondent)

LOWER COURT JURISDICTION:

District Court

LOWER COURT FILE NUMBER(S):

DC 8614/02

LOWER COURT JUDICIAL OFFICER:

Bishop DCJ



                          CA 40606/04
                          DC 8614/02

                          HANDLEY JA
                          MCCOLL JA
                          BASTEN JA

                          15 August 2005
JOHN CREEVEY v PETER JOHN BARROIS

The applicant, Mr Creevey, sought leave to appeal from a decision of the District Court granting leave to Mr Barrois to commence proceedings out of time under the Motor Accidents Act 1988 (NSW). Section 52(4) of the Act required leave to commence proceedings more than three years after the date of the motor accident.


The accident occurred on 9 March 1995 and it was not until 10 September 1999 that Mr Barrois first instructed a solicitor. There was a further delay between that time and the time when his solicitor applied to the District Court on 29 May 2000 for leave to institute proceedings out of time. After a number of applications (including a successful appeal) and some further periods of delay, the matter was heard and determined by Bishop DCJ on 20 May 2004, that decision being the subject of this leave application.


The primary question for determination by the Court of Appeal was whether, notwithstanding the delay and the circumstances in which the delay occurred, a…

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Creevey v Barrois [2005] NSWCA 264
Case
[2005] NSWCA 264
Decision Date

CaseChat Overview and Summary

The parties in this matter were Creevey (the applicant) and Barrois (the respondent). The dispute concerned an application for an extension of time to commence proceedings under the *Motor Accidents Act 1988* (NSW). The application was heard and determined by the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the applicant had demonstrated that a fair trial could reasonably be anticipated despite the significant delay in commencing proceedings. This involved considering the prejudice suffered by the respondent as a result of the delay, specifically the lost opportunity to make a cross-claim against a third party, which had become time-barred under section 26(1)(d) of the *Limitations Act 1969* (NSW).

The Court of Appeal considered the principles governing extensions of time under the *Motor Accidents Act 1988* (NSW), which require the applicant to show that a fair trial can be anticipated. The Court found that the delay had caused prejudice to the respondent by precluding the possibility of a cross-claim, thereby impacting the respondent's ability to fully litigate the matter. Consequently, the Court concluded that the applicant had not satisfied the threshold for granting an extension of time.

The Court of Appeal granted leave to appeal but dismissed the appeal with costs.

Orders

Orders of the court

(1) Grant leave to appeal; (2) Appeal dismissed with costs

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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