Gersbach v Gersbach

[2020] NSWCA 153

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Gersbach v Gersbach [2020] NSWCA 153

Hearing dates:

17 July 2020

Decision date:

23 July 2020

Before:

Macfarlan JA at [1];
Leeming JA at [2];
White JA at [51].

Decision:

Summons filed 20 March 2020 dismissed, with costs.

Catchwords:

PROCEDURE – appeals – extension of time – application for extension of more than a year to bring appeal – applicant mentally unwell – poor prospects of success – change of position by respondent during previous year – more than usual prejudice in responding to appeal – extension refused

Legislation Cited:

Limitation Amendment (Child Abuse) Act 2016 (NSW)

Cases Cited:

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Gersbach v Gersbach [2018] NSWSC 1685

R v Tillott (1995) 38 NSWLR 1

Category:

Principal judgment

Parties:

Jayne Gersbach (Applicant)
Rodney Gersbach (Respondent)

Representation:

Counsel:
Applicant in person
G McNally SC (Respondent)

Solicitors:
Breene & Breene Solicitors (Respondent)

File Number(s):

2018/371542

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2018] NSWSC 1685

Date of Decision:

9 November 2018

Before:

Garling J

File Number(s):

2013/327902

Judgment

1. MACFARLAN JA: I agree with Leeming JA.

2. LEEMING JA: Ms Jayne Gersbach seeks an extension of time to appeal from the judgment against her, following a nine day hearing in the Common Law Division, given on 9 November 2018: Gersbach v Gersbach [2018] NSWSC 1685. At that trial, she was represented by a firm of solicitors who briefed senior and junior counsel. The gravamen of her claim is that, while a child (and indeed after she turned 18) she was sexually abused by her father, Mr Rodney Gersbach, who was the defendant at trial and is the respondent in this Court. She had commenced proceedings in 2013, and her action on any view became permitted by reason of the amendments introduced, with retrospective effect, by the Limitation Amendment (Child Abuse) Act 2016 (NSW). The trial judge gave judgment for the defendant. His Honour in accordance with usual practice calculated damages notionally and would have ordered $679,950 had he accepted the plaintiff’s case.

3. A notice of intention to appeal was filed on 3 December 2018. It was filed on behalf of the applicant by the solicitors who had appeared for her at trial. The document was given a file number “2018/371542”. As will be seen below, it was followed by a request for advice on the prospects of an appeal from junior counsel who had appeared at trial. The consequence of the notice was that the time for filing of an appeal was extended to 9 February 2019. It stated:

“NOTICE

The applicant intends to commence appeal proceedings within 3 months after the material date, that is on or before 9 February 2019.”

4. No notice of appeal has ever been filed. Rather, on 20 March 2020, more than a year after the time for filing an appeal had expired, the applicant filed a…