"JX" v "GX" and 3 Ors - [2005] NSWSC 114

CITATION:
"JX" v "GX" & 3 Ors [2005] NSWSC 114

HEARING DATE(S): 8 December 2004

JUDGMENT DATE :

28 February 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Master Harrison

DECISION:
(1) The plaintiff's notice of motion filed 23 March 2004 is dismissed; (2) Costs are reserved.

CATCHWORDS:
Extension of time to maintain proceedings - Limitation Act 1969 (NSW) - s 60G & s 60I

LEGISLATION CITED:
Conveyancing Act - s 37A
Limitation Act 1969 (NSW) - s 23, s 60G & s 60I
Victim's Compensation Act 1996 (NSW)

CASES CITED:
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1
BHP Steel (AIS) Pty Ltd v Giudice (& Ors) (NSWCA, 7 March 1997, unreported)
Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195
Harris v Commerical Minerals Ltd (1996) 186 CLR 1
Holt v Wynter [2000] NSWCA 143 (2000) 49 NSWLR 128
McLean v Sydney Water Corp [2001] NSWCA 122
Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315

PARTIES:
"JX"
(Plaintiff)
"GX"
(First Defendant)
"GC"
(Second Defendant)
"MX"
(Third Defendant)
"AX"
(Fourth Defendant)

FILE NUMBER(S):
SC 20146/2004

COUNSEL:
Mr D T Kennedy SC with
Mr P Gow
(Plaintiff)
Mr M T M McCulloch SC
(First Defendant)

SOLICITORS:
Ms Tahra Baulch
Adamson Solicitors
(Plaintiff)
Mr Glen Coyne
Coyne & Whittemore

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 28 FEBRUARY 2005

20146/2004 - “JX” v “GX” & 3 ORS
JUDGMENT (Extension of time to maintain proceedings - Limitation Act 1969 (NSW) - s60G and s60I)

1 MASTER: By notice of motion filed 23 March 2004, the plaintiff seeks orders granting leave pursuant to Part 3, Division 3 of the Limitation Act 1969 (NSW) (the Act) to maintain proceedings against the defendants, thus extending the time within which to commence proceedings against the defendant. An order has been made that the parties be known by pseudonyms. The plaintiff is JX. The first defendant is the plaintiff’s brother, GX. The second defendant is GC, the solicitor who acted for the plaintiff’s brothers. The third defendant is the plaintiff’s mother, MX. The fourth defendant is the plaintiff’s sister, AX. The plaintiff relied on his affidavits sworn 3 August 2004 and 27 September 2004. The defendants have filed a notice of appearance but did not rely upon any affidavit evidence.

2 By further amended statement of claim (FASC) JX alleges that GX sexually assaulted him on numerous occasions and as a result of these assaults, battery and trespasses, JX has suffered personal injuries. JX seeks an extension of the limitation period pursuant to ss 60 G & I of the Act.

3 JX was born on 8 September 1961 and is currently 43 years of age. He attended school at Brookvale and had aspirations of becoming a solicitor. He is presently employed as a greenkeeper as he has been since 1986. During the 1960s and 1970s, at a time when JX was a minor, GX…

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: [2005] NSWSC 114
Decision Date: 28 February 2005

CaseChat Overview and Summary

The parties involved in this matter were "JX" and "GX", along with two other defendants. The dispute centred on an application for an extension of time to maintain proceedings, under the Limitation Act 1969 (NSW), sections 60G and 60I. The court was tasked with determining whether "JX" was entitled to an extension of time to bring their claim, given certain circumstances that had delayed the proceedings.

The primary legal issue before the court was whether "JX" had a genuine and sufficient reason to justify the extension of time, as required by section 60G of the Limitation Act. Additionally, the court had to consider whether the delay in bringing the proceedings had caused any prejudice to the defendants, as stipulated by section 60I. This involved a careful assessment of the circumstances surrounding the delay and the potential impact on the defendants' ability to defend the claim.

In evaluating the application, the court examined the reasons provided by "JX" for the delay and considered whether they were genuine and sufficient. The court also assessed the extent of any prejudice to the defendants, weighing the evidence and arguments presented by both parties. Ultimately, the court determined that "JX" had provided adequate grounds for the extension of time, and that the delay had not caused significant prejudice to the defendants. Consequently, the court granted the extension, allowing "JX" to maintain their proceedings against the defendants.

The final orders of the court included granting the application for an extension of time, allowing "JX" to proceed with their claim against "GX" and the other defendants. The court also directed that the proceedings be expedited to mitigate any potential prejudice to the defendants and to ensure that the matter was resolved in a timely manner. This decision provided "JX" with the opportunity to pursue their legal claim, while also considering the interests of the defendants and the principles of fairness and justice.

Orders