Hunter v Hanson

Case [2014] NSWCA 263

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Hunter v Hanson [2014] NSWCA 263
Hearing dates:10 March 2014
Decision date: 13 August 2014
Before: McColl JA (at [1]), Macfarlan JA (at [79]), Emmett JA (at [82]
Decision:

Application for leave to appeal dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PRACTICE AND PROCEDURE - extension of time for service - respondent filed statement of claim pleading causes of action in defamation and others shortly before limitation period for defamation causes of action expired - statement of claim not served on applicant within time limited by UCPR 6.2(4)(b)(ii) - respondent decided not to serve statement of claim until judgment in an appeal from a decision which if correct afforded a defence of absolute privilege to his defamation causes of action was delivered and also to avoid aggravating situation with applicant in respect of whose conduct he had sought an APVO - after APVO order granted and appeal judgment delivered respondent obtained leave to serve statement of claim out of time - exercise of judicial discretion to extend time - whether "good reasons" for delay in service - whether knowledge of sufficient facts to plead statement of claim determinative against extension of time - effect of expiration of limitation period on extension of time for service application
Legislation Cited: Civil Procedure Act 2005 (NSW)
Defamation Act 2005 (NSW)
District Court Act 1973 (NSW)
Evidence Act 1995 (NSW)
Fair Trading Act 1987 (NSW)
Limitation Act 1969 (NSW)
Medical Practice Act 1992 (NSW)
High Court Rules 1952 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Agricultural & Rural Finance Pty Limited v Kirk [2011] NSWCA 67; (2011) 82 ACSR 390
Battersby v Anglo-American Oil Co Limited [1945] KB 23
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Brown v Coccaro (1993) 10 WAR 391
Carey v Australian Broadcasting Corporation [2012] NSWCA 176; (2012) 84 NSWLR 90
Cornelius v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65; (2014) 98 ACSR 301
FAI Insurances Ltd (in liq) v Mainprize [2006] NSWSC 554
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Foxe v Brown [1984] HCA 69; (1984) 59 ALJR 186
Hanson and Others v Hunter and Another (Local Court (NSW), Pinch LCM, 16 February 2012, unrep)
House v The King [1936] HCA 40; (1936) 55 CLR 499
IMB Group Pty Ltd (in liq) v ACCC [2006] QCA 407; [2007] 1 Qd R 148
Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597
La Macchia v Minister for Primary Industries &…

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Hunter v Hanson [2014] NSWCA 263
Case
[2014] NSWCA 263
Decision Date

CaseChat Overview and Summary

In *Hunter v Hanson*, the applicant sought leave to appeal a decision of the primary judge who had granted the respondent leave to serve a statement of claim out of time. The respondent had filed the statement of claim, which included defamation causes of action, shortly before the limitation period expired. However, service was not effected within the time prescribed by UCPR 6.2(4)(b)(ii). The respondent elected to delay service pending the outcome of an appeal concerning a defence of absolute privilege, and also to avoid exacerbating an already difficult situation with the applicant, in relation to whom an apprehended violence order had been sought.

The central legal issues before the Court of Appeal were whether the primary judge had erred in exercising her discretion to extend the time for service. Specifically, the court considered whether there were "good reasons" for the delay in service, whether the respondent's knowledge of sufficient facts to plead the statement of claim was determinative against granting an extension, and the effect of the expiry of the limitation period on an application for an extension of time for service.

The Court of Appeal held that the primary judge had not erred in her exercise of discretion. The court reasoned that the respondent's strategic decision to await the outcome of the appeal regarding absolute privilege was a valid consideration, as was the desire to avoid further conflict with the applicant. The court affirmed that the existence of a potential defence does not preclude an extension of time for service, and that the expiry of the limitation period does not automatically bar such an application. The court found that the primary judge had properly weighed all relevant factors in reaching her decision.

The application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application for leave to appeal dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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