McLean v Sydney Water Corporation

McLean (the appellant) sought an extension of time to commence proceedings against Sydney Water Corporation (the respondent) for damages arising from alleged negligence. The dispute concerned a claim for personal injury, with a significant period of time having elapsed since the cause of action accrued. The appeal was heard by the Court of Appeal of New South Wales, comprising Stein and Giles JJA and Hodgson CJ in Eq.

The primary legal issue before the Court of Appeal was whether the primary judge had erred in refusing to grant an extension of time for the appellant to commence proceedings. This required the court to consider the principles governing the exercise of discretion under the relevant limitation legislation, particularly in circumstances involving a very long lapse of time, and to assess whether granting such an extension would be just and reasonable. The court also had to determine whether factors beyond the absence of specific prejudice to the defendant, such as the possibility of a fair trial, could be taken into account.

The Court of Appeal found no error in the primary judge's exercise of discretion. The court reasoned that while a fair trial might be possible and the respondent might not suffer specific prejudice beyond the general prejudice inherent in a stale claim, these factors alone did not mandate the granting of an extension. The court affirmed that the ultimate question was whether it was just and reasonable to grant the extension, and that the primary judge had properly weighed all relevant considerations.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.