Guthrie v Spence [2009] NSWCA 369 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
8 September 2009
JUDGMENT DATE:
17 November 2009
JUDGMENT OF:
Basten JA at 1; Campbell JA at 2; Handley AJA at 210
DECISION:
Orders made to rectify procedural deficiencies in court below. Leave to appeal granted. Appeal dismissed with costs.
CATCHWORDS:
LIMITATION OF ACTIONS – postponement of the bar – disabilities – nature of the disability required – type of affairs with respect to which the disability must relate – nature of the suspension arising from a period of disability – meaning of “cause of action” in the Limitation Act 1969 – APPEAL AND NEW TRIAL – appeal – no order made in the court below – incomplete application for leave to appeal – procedure for dealing with a purported appeal when there was no order made in the District Court below – transfer of proceedings in the District Court for the purpose of making an order – PROCEDURE – interlocutory decisions – limitation of actions – methods by which a claim that a limitation period has been suspended might be litigated – EVIDENCE – admissibility of a history recorded in a medical report – WORDS AND PHRASES – “cause of action” – “substantially” – “affairs” – “management of his or her affairs”
[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.
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AGLC
Guthrie v Spence [2009] NSWCA 369
Case
[2009] NSWCA 369
Decision Date
CaseChat Overview and Summary
The proceedings concerned an appeal from a decision of the District Court of New South Wales. The appellant, Mr Guthrie, sought to bring a claim against the respondent, Mr Spence, in respect of a cause of action that arose in 1997. The primary issue was whether the appellant's claim was barred by the Limitation Act 1969 (NSW), or if the limitation period had been postponed due to a disability suffered by the appellant.
The Court of Appeal was required to determine whether the appellant suffered from a disability within the meaning of the Limitation Act 1969, and if so, whether that disability prevented him from managing his affairs. Specifically, the court considered the nature of the disability required to postpone the limitation period and the type of affairs with respect to which the disability must relate. The court also addressed procedural issues arising from the fact that no final order had been made by the District Court, and the appellant's subsequent application for leave to appeal.
The Court of Appeal reasoned that for a disability to postpone the operation of the limitation period, it must be such that the person is unable to manage their affairs. This requires a substantial inability to conduct one's affairs, not merely a difficulty or inconvenience. The court found that the appellant's medical condition, while significant, did not amount to a disability that prevented him from managing his affairs in the relevant sense. The court also noted that the medical report contained hearsay evidence regarding the appellant's history, but this did not prevent the court from making the necessary findings of fact.
The Court of Appeal made orders to rectify procedural deficiencies in the court below, granted leave to appeal, but ultimately dismissed the appeal with costs.
Orders
Orders of the court
Orders made to rectify procedural deficiencies in court below. Leave to appeal granted. Appeal dismissed with costs.