Laycock v Double Bay Newspapers Pty Ltd & Ors

[2007] NSWSC 573

CITATION:	Laycock v Double Bay Newspapers Pty Ltd & Ors [2007] NSWSC 573
HEARING DATE(S):	04/06/2007
JUDGMENT DATE :	6 June 2007
JUDGMENT OF:	Associate Justice Malpass
DECISION:	I order that the relevant limitation period be extended up to and including 8 February 2007. The plaintiff is to pay the costs of the Notice of Motion.
CATCHWORDS:	Extension of limitation period - plaintiff put to proof - delay because of misadventures of solicitor - onus discharged
LEGISLATION CITED:	Limitation Act 1969 (NSW)
PARTIES:	Donna Laycock Double Bay Newspapers Pty. Ltd General Newspapers Pty. Ltd Suburban Publications Pty. Limited The Federal Publishing Co. Pty. Ltd. Nine to Five (Holdings) Pty. Limited Nine to Five Magazine Pty. Limited
FILE NUMBER(S):	SC 20028/06
COUNSEL:	Mr B.J.Gross QC / Mr T. J. Boyd (Pl) Mr T. Clarke (Def)
SOLICITORS:	Kheir & Associates (Pl) Vardanega Roberts (Def)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

6 JUNE 2007

2006/20028 DONNA LAYCOCK v DOUBLE BAY NEWSPAPERS PTY LTD & ORS

JUDGMENT

1 HIS HONOUR: The plaintiff has given evidence of a fall which she has said occurred on 2 December 2002. It is alleged that after leaving Town Hall Railway Station, she tripped and fell whilst proceeding along an arcade walkway in the Queen Victoria Building. The cause of the trip and fall is said to be plastic binding which was on the walkway. It was said to be plastic binding used for the delivery of magazines published by the Independent Print Media Group.

2 Since the accident, the conduct of her claim has been in the hands of three separate firms of solicitors. Her present solicitors were retained in November 2004.

3 On 18 August 2005, she instructed those solicitors to commence Common Law proceedings in this Court. Counsel were briefed and draft documents were prepared. Thereafter, certain, what might be described as, misadventures took place which delayed the filing of the documents in this Court until 20 January 2006. By that time, the relevant limitation period had expired (on 2 December 2005).

4 In February 2006, her solicitor became aware of the problem and obtained instructions to make an application for an extension of the limitation period. Subsequently, an application was filed. An Amended Notice of Motion is now before the Court (it was filed on 27 October 2006).

5 The plaintiff has experienced difficulties in identifying the proper defendant. This has brought about a number of amendments being made to the plaintiff’s process.

6 The current process is a Third Further Amended Statement of Claim. It names six defendants. It was filed on 8 February 2007.

7 On 4 June 2007, the application for extension of time came on for hearing. Mr Gross QC and Mr Boyd appeared for the plaintiff. Mr Clarke appeared for all the defendants.

8 The application is made pursuant to s60C of the Limitation Act 1969 (NSW). The section enables the making of an order extending the relevant limitation period if the Court decides that it is just and reasonable to do so.

9 In defending the application, Mr Clarke did not look to any particular issue as a basis for the refusal of the order sought.

10 The viability of the alleged cause of action was not argued. He made no submission on the question of delay. He accepted that the explanation for the delay sufficed (it was not the fault of the plaintiff, but that of her solicitors). He did not raise any matter of prejudice. He took the view that the plaintiff has the onus to demonstrate an entitlement to the order sought and his clients were putting her to proof. In essence, he was leaving it to the Court.

11 Because of confusion surrounding the question of the identity of the proper defendant, he foreshadowed that a problem concerning it may arise in the future. For the purposes of this application, I was asked to put that question aside. If need be, it is proposed that it be addressed in the future.

12 In the exercise of the power inferred by s60C, the Court is required to have regard to all of the circumstances of the case (including those set forth in s60E).

13 I have had regard to the relevant circumstances. After having performed that exercise, it seems to me that the plaintiff has discharged the onus of proof. Accordingly, I have come to the decisions that it is just and reasonable to make an order and that an order should be made.

14 I order that the relevant limitation period be extended up to and including 8 February 2007. The plaintiff does not dispute that she should bear the costs of the application. Accordingly, the plaintiff is to pay the costs of the Notice of Motion. The exhibit may be returned.

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