David Jones Limited v BI (Contracting) Pty Ltd
[2012] SADC 85
•28 June 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DAVID JONES LIMITED v BI (CONTRACTING) PTY LTD
[2012] SADC 85
Reasons for Ruling of His Honour Judge Jennings
28 June 2012
PROCEDURE
Ruling - Extension of time sought to prosecute action - Application granted.
David Jones Limited v BI (Contracting) Pty Ltd [2012] SADC 7; Gallo v Dawson (1990) 93 ALR 479; Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257; Levi v Unisure Pty Ltd [1999] SASC 432, considered.
DAVID JONES LIMITED v BI (CONTRACTING) PTY LTD
[2012] SADC 85
These reasons should be read in conjunction with the reasons published by me on 8 February 2012.[1]
[1] [2012] SADC 7.
There I indicated that the plaintiff needed to seek an extension of time within which to prosecute this action and that in support of that application it needed to place evidence before the Court as to the explanation for the delay.
This has been provided through an affidavit of Andrew Donald (Sandy) MacGregor sworn on 20 February 2012.
It reveals that the delay resulted from an incorrect notation by the plaintiff’s solicitors as to when the cause of action expired. They noted that date as 8 October 2010 when in fact the correct date was 8 October 2009.
The defendant contends that it is prejudiced, as it has been denied the opportunity to test the evidence of Mr Murphy, being the person whose injuries formed the basis of this claim. Mr Murphy died in about January 2008. It follows that even if these proceedings had been instituted within time that prejudice would have existed.
Whenever a party is seeking an indulgence for a failure to comply with prescribed time limits and the Court is empowered to grant that indulgence, the Court will grant that indulgence if it is in the interests of justice so to do. The discretion to extend time exists for the purpose of doing justice between the parties: Gallo v Dawson,[2] Hughes v National Trustees Executors & Agency Co of Australasia Ltd.[3]
[2] (1990) 93 ALR 479.
[3] [1978] VR 257.
In this case it is clear that the fault for the failure to comply with the time limit prescribed is that of the plaintiff’s solicitors. The plaintiff was not responsible for the delay. It would suffer irremediable prejudice by being denied the right to apply to pursue this action. The fact that it might have a cause of action against its solicitors is not, of itself, a reason to refuse to grant this application.[4]
[4] Levi v Unisure Pty Ltd [1999] SASC 432.
The length of the delay is not insignificant. However the defendant was aware before the time limit expired that the plaintiff intended to pursue an action for recovery.
The defendant will suffer prejudice if the time is extended. It will have to defend an action that it was entitled to assume was stale. As time passes the quality of evidence diminishes. Thus its capacity to defend this action may be affected.
Thus the plaintiff will suffer prejudice if the application is refused. The defendant will suffer prejudice if the application is granted.
All of these factors need to be weighed. I think that the factors supporting the application outweigh those against.
In the circumstances I am satisfied that the justice of the case warrants the grant of an extension of time to permit the prosecution of this action and I so order.
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