Hornby v The Nominal Defendant - [2007] NSWCA 222

Appeal Outcome: Matter discontinued in the High Court 18 April 2008

New South Wales

Court of Appeal

CITATION: Hornby v The Nominal Defendant [2007] NSWCA 222

HEARING DATE(S): 21 May 2007

JUDGMENT DATE:
29 August 2007

JUDGMENT OF: Mason P at 1; Hodgson JA at 2; Tobias JA at 14

DECISION: (a) Leave to appeal granted subject to the claimant filing her notice of appeal within 14 days of the date of these orders; (b) Appeal allowed; (c) Set aside the orders made by Judge Hughes on 7 July 2006; (d) Pursuant to s 60G(2) of the Limitation Act 1969, the limitation period for the cause of action pleaded by the claimant in her Statement of Claim filed in the District Court on 16 November 2005 be extended up to and including 16 November 2005; (e) The costs of the Notice of Motion filed on 28 February 2006 to be the opponent’s costs in the cause; (f) The opponent to pay the costs of the summons for leave to appeal and of the appeal

CATCHWORDS: LIMITATION OF ACTIONS – Extension of period – Power of court to extend time – Whether just and reasonable to extend limitation period – Whether significant actual and/or presumptive prejudice to the defendant – Weight to be given to prejudice that arose before the expiry of the limitation date as against prejudice arising after the expiry of the limitation date - Limitation Act 1969, ss 60F, 60G(2) and 60I(1)(a).

LEGISLATION CITED: Limitation Act 1969

CASES CITED: Barker v Wingo (1972) 407 US 514
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Commonwealth of Australian v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209
Commonwealth of Australia v Smith [2005] NSWCA 478
Fletcher v Besser [2004] NSWCA 132
Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143
House v The King (1936) 55 CLR 499
Malec v JC Hutton Pty Limited (1990) 169 CLR 638
Purkess v. Crittenden (1965) 114 CLR 164
Smith v Morton (2004) 40 MVR 347; [2004] NSWCA 84.
Watts v. Rake (1960) 108 CLR 158
Wayne Souer v Allianz Australia Insurance Ltd [2006] NSWCA 364

PARTIES: Vicky Hornby
The Nominal Defendant

FILE NUMBER(S): CA 40464/06

COUNSEL: Cl: J Sleight
Opp: A Bridge SC / I McGillicuddy

SOLICITORS: Cl: Clinch Neville Long Lawyers, Sydney
Opp: J M Crestani & Associates, Parramatta

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4957/05

LOWER COURT JUDICIAL OFFICER: Hughes DCJ

LOWER COURT DATE OF DECISION: 7 July 2006

CA 40464/06
DC 4957/05

MASON P
HODGSON JA
TOBIAS JA
Wednesday 29 August 2007

VICKY HORNBY v THE NOMINAL DEFENDANT

Judgment

1 MASON P: I agree with Tobias JA.

2 HODGSON JA: The circumstances giving rise to this appeal, the issues it raises, and the submissions of the parties are comprehensively set out in the judgment of Tobias JA.

3 I agree with Tobias JA that the primary judge did not provide adequate reasons…

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.

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Details

Case: [2007] NSWCA 222
Decision Date: 29 August 2007

CaseChat Overview and Summary

In *Hornby v The Nominal Defendant*, the Court of Appeal of New South Wales considered an appeal concerning the extension of a limitation period. The claimant sought to extend the time within which to bring a claim against the Nominal Defendant, who is the insurer of an unidentified or uninsured motor vehicle. The primary judge had refused to grant an extension, and the claimant appealed this decision.

The central legal issue before the Court of Appeal was whether it was just and reasonable to extend the limitation period for the claimant's cause of action, pursuant to section 60G(2) of the *Limitation Act 1969* (NSW). This required the court to weigh the claimant's reasons for the delay against any significant actual or presumptive prejudice suffered by the Nominal Defendant, considering the timing of that prejudice in relation to the expiry of the original limitation period.

The Court of Appeal allowed the appeal, setting aside the primary judge's orders. The court reasoned that the prejudice to the Nominal Defendant, particularly that which arose before the expiry of the limitation period, was not of such a magnitude as to outweigh the claimant's entitlement to have her claim heard. The court applied the principles of section 60G(2) of the *Limitation Act 1969*, finding that it was just and reasonable to extend the limitation period. Consequently, the court ordered that the limitation period for the claimant's cause of action be extended to the date of filing of her Statement of Claim.

Orders

Orders of the court

(a) Leave to appeal granted subject to the claimant filing her notice of appeal within 14 days of the date of these orders; (b) Appeal allowed; (c) Set aside the orders made by Judge Hughes on 7 July 2006; (d) Pursuant to s 60G(2) of the Limitation Act 1969, the limitation period for the cause of action pleaded by the claimant in her Statement of Claim filed in the District Court on 16 November 2005 be extended up to and including 16 November 2005; (e) The costs of the Notice of Motion filed on 28 February 2006 to be the opponent's costs in the cause; (f) The opponent to pay the costs of the summons for leave to appeal and of the appeal

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:	Hornby v The Nominal Defendant [2007] NSWCA 222
HEARING DATE(S):	21 May 2007
JUDGMENT DATE:	29 August 2007
JUDGMENT OF:	Mason P at 1; Hodgson JA at 2; Tobias JA at 14
DECISION:	(a) Leave to appeal granted subject to the claimant filing her notice of appeal within 14 days of the date of these orders; (b) Appeal allowed; (c) Set aside the orders made by Judge Hughes on 7 July 2006; (d) Pursuant to s 60G(2) of the Limitation Act 1969, the limitation period for the cause of action pleaded by the claimant in her Statement of Claim filed in the District Court on 16 November 2005 be extended up to and including 16 November 2005; (e) The costs of the Notice of Motion filed on 28 February 2006 to be the opponent’s costs in the cause; (f) The opponent to pay the costs of the summons for leave to appeal and of the appeal
CATCHWORDS:	LIMITATION OF ACTIONS – Extension of period – Power of court to extend time – Whether just and reasonable to extend limitation period – Whether significant actual and/or presumptive prejudice to the defendant – Weight to be given to prejudice that arose before the expiry of the limitation date as against prejudice arising after the expiry of the limitation date - Limitation Act 1969, ss 60F, 60G(2) and 60I(1)(a).
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Barker v Wingo (1972) 407 US 514 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 Commonwealth of Australian v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209 Commonwealth of Australia v Smith [2005] NSWCA 478 Fletcher v Besser [2004] NSWCA 132 Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143 House v The King (1936) 55 CLR 499 Malec v JC Hutton Pty Limited (1990) 169 CLR 638 Purkess v. Crittenden (1965) 114 CLR 164 Smith v Morton (2004) 40 MVR 347; [2004] NSWCA 84. Watts v. Rake (1960) 108 CLR 158 Wayne Souer v Allianz Australia Insurance Ltd [2006] NSWCA 364
PARTIES:	Vicky Hornby The Nominal Defendant
FILE NUMBER(S):	CA 40464/06
COUNSEL:	Cl: J Sleight Opp: A Bridge SC / I McGillicuddy
SOLICITORS:	Cl: Clinch Neville Long Lawyers, Sydney Opp: J M Crestani & Associates, Parramatta
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4957/05
LOWER COURT JUDICIAL OFFICER:	Hughes DCJ
LOWER COURT DATE OF DECISION:	7 July 2006