Greater Lithgow City Council v Wolfenden - [2007] NSWCA 180

New South Wales

Court of Appeal

CITATION: GREATER LITHGOW CITY COUNCIL v WOLFENDEN [2007] NSWCA 180
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16/07/07

JUDGMENT DATE:
16 July 2007

JUDGMENT OF: Campbell JA at 22,24; Young CJ in Eq at 23; Handley AJA at 1

EX TEMPORE JUDGMENT DATE: 16 July 2007

DECISION: 1. Leave to appeal granted; 2. The appellant to file a notice of appeal within seven days; 3. Appeal dismissed with costs.

CATCHWORDS: PRACTICE & PROCEDURE - amendment to add statute barred cause of action - general power available in cases outside special power - LIMITATION - amendment to add statute barred cause of action

LEGISLATION CITED: Workers' Compensation Act
Civil Procedure Act

CASES CITED: Clutha v Miller (No 2) [2002 NSWSC 523
New Cap Reinsurance Corporation v Reaseguros Alianza SA [2004] 186 FLR 175
Bebonis v Angelos (2002) 56 NSWLR 127
Brickfield Properties Limited v Newton [1971] 1 WLR 862
Fernance v Nominal Defendant (1989) 17 NSWLR
Ingot v Macquarie (No 3) [2005] NSWSC 255
McGee v Yeomans [1977] 1 NSWLR 273
Proctor v Jetway Aviation Pty Limited [1984] 1 NSWLR 166
Sagacious Procurement Ltd v Mayne Group Ltd [2005] NSWSC 1238
Street v Luna Park Sydney Pty Limited [ 2006] NSWSC 230
Weldon v Neal (1887) 19 QBD 394

PARTIES: Greater Lithgow City Council (Claimant)
Mark Allen Wolfenden (Opponent)

FILE NUMBER(S): CA 40680/06

COUNSEL: L King SC (Claimant)
D Nock SC/M Fisher (Opponent)

SOLICITORS: Leitch Hasson Dent (Claimant)
Barry F Cosier & Associates (Opponent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4391/06

LOWER COURT JUDICIAL OFFICER: Kearns DCJ

LOWER COURT DATE OF DECISION: 26/09/06

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 040680/06

CAMPBELL JA

YOUNG CJ IN EQ

HANDLEY AJA

MONDAY 16 JULY 2007

HEADNOTE

The plaintiff, who had begun to suffer from epilepsy, sued his employer claiming that his condition was caused by exposure to chemicals at work. After the three year limitation period had expired he sought leave to amend to add a new cause of action based on a frank head injury at work earlier on the day he suffered his first epileptic fit. The application was made under s 64 of the Civil Procedure Act. The employer argued the case was not covered by s 65 and there was no power to allow an amendment under s 64. The Judge overruled the objection and allowed the amendment. On appeal held:

1. The Court should follow the settled line of authority based on McGee v Yeomans [1977] NSWLR 273 and confirm that amendments to allow a statute barred cause of action may be allowed under s 64 in cases which are not covered by s 65;

2. There was no ground for interfering with a Judge’s discretionary judgment to allow the amendment.

ORDERS

(1) Leave to appeal granted;

(2) The appellant to file a notice of appeal within seven days;
(3)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Greater Lithgow City Council v Wolfenden 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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWCA 180
Decision Date: 16 July 2007

CaseChat Overview and Summary

The Supreme Court of New South Wales, Court of Appeal, heard an appeal concerning an application to amend a statement of claim to add a cause of action that was statute-barred. The appellant, Greater Lithgow City Council, sought to amend its claim against the respondent, Mr. Wolfenden, to include a claim for negligence, which had arisen more than six years prior to the proposed amendment.

The central legal issue before the Court of Appeal was whether the court possessed the power to grant leave to amend a statement of claim to add a cause of action that was already statute-barred. This involved considering the interplay between the general power of amendment under the rules of court and any specific limitations or considerations that might apply when the proposed amendment sought to introduce a claim that had fallen outside the relevant limitation period.

The Court of Appeal affirmed the general principle that while courts have broad powers to permit amendments to pleadings, this power is not unfettered. It was held that the court should not permit an amendment that would have the effect of reviving a cause of action that is already statute-barred, as this would undermine the purpose of limitation periods. The court reasoned that to allow such an amendment would be to permit the commencement of proceedings that are fundamentally flawed from their inception due to the expiry of the statutory time limit.

Consequently, the Court of Appeal dismissed the appeal, upholding the decision of the primary judge. Leave to appeal was granted, but the appeal itself was dismissed with costs awarded to the respondent.

Orders

Orders of the court

1. Leave to appeal granted;

2. The appellant to file a notice of appeal within seven days;

3. Appeal dismissed with costs.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	GREATER LITHGOW CITY COUNCIL v WOLFENDEN [2007] NSWCA 180 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	16/07/07
JUDGMENT DATE:	16 July 2007
JUDGMENT OF:	Campbell JA at 22,24; Young CJ in Eq at 23; Handley AJA at 1
EX TEMPORE JUDGMENT DATE:	16 July 2007
DECISION:	1. Leave to appeal granted; 2. The appellant to file a notice of appeal within seven days; 3. Appeal dismissed with costs.
CATCHWORDS:	PRACTICE & PROCEDURE - amendment to add statute barred cause of action - general power available in cases outside special power - LIMITATION - amendment to add statute barred cause of action
LEGISLATION CITED:	Workers' Compensation Act Civil Procedure Act
CASES CITED:	Clutha v Miller (No 2) [2002 NSWSC 523 New Cap Reinsurance Corporation v Reaseguros Alianza SA [2004] 186 FLR 175 Bebonis v Angelos (2002) 56 NSWLR 127 Brickfield Properties Limited v Newton [1971] 1 WLR 862 Fernance v Nominal Defendant (1989) 17 NSWLR Ingot v Macquarie (No 3) [2005] NSWSC 255 McGee v Yeomans [1977] 1 NSWLR 273 Proctor v Jetway Aviation Pty Limited [1984] 1 NSWLR 166 Sagacious Procurement Ltd v Mayne Group Ltd [2005] NSWSC 1238 Street v Luna Park Sydney Pty Limited [ 2006] NSWSC 230 Weldon v Neal (1887) 19 QBD 394
PARTIES:	Greater Lithgow City Council (Claimant) Mark Allen Wolfenden (Opponent)
FILE NUMBER(S):	CA 40680/06
COUNSEL:	L King SC (Claimant) D Nock SC/M Fisher (Opponent)
SOLICITORS:	Leitch Hasson Dent (Claimant) Barry F Cosier & Associates (Opponent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4391/06
LOWER COURT JUDICIAL OFFICER:	Kearns DCJ
LOWER COURT DATE OF DECISION:	26/09/06