Hornby v The Nominal Defendant

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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…

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Details
Case
[2007] NSWCA 222
Decision Date

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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