Om Prakash Kapoor v Randwick Municipal Council

[2004] NSWSC 601

CITATION:	Om Prakash Kapoor v Randwick Municipal Council [2004] NSWSC 601
HEARING DATE(S):	6 July 2004
JUDGMENT DATE:	7 July 2004
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass at 1
DECISION:	See paragraph 14
CATCHWORDS:	Extension of limitation period - no question of principle
LEGISLATION CITED:	Limitation Act 1969 (NSW)
PARTIES :	Om Prakash Kapoor Randwick Municipal Council
FILE NUMBER(S):	SC 20026/02
COUNSEL:	Plaintiff: in person Defendant: Mr I Roberts SC
SOLICITORS:	Plaintiff: Defendant: Dibbs Barker Gosling

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

7 July 2004

20026/02 Om Prakash Kapoor v Randwick Municipal Council

JUDGMENT

1 Master: The plaintiff is a litigant in person. He commenced these proceedings by statement of claim filed on 1 February 2002. Subsequently, he filed an amended statement of claim. He claims damages arising out of physical injury said to have been suffered in 1973.

2 The proceedings are defended. One of the defences pleads the expiry of the relevant limitation period. It expired on 10 October 1979.

3 At the time of the alleged injury, the plaintiff was an employee of the defendant. He was employed as a labourer. It is alleged that he was working with a pick. It is further alleged that he suffered injury when the pick hit a concrete part of a road. He claims to have suffered various injuries (including brain, neck, jaw, spine and multiple internal injuries with nervous shock). It appears that he may have not worked since the date of the said injury.

4 The plaintiff seeks relief pursuant to s66G of the Limitation Act. The application was heard on 6 July 2004. It was strongly opposed.

5 The operation of s66G is dependant upon the plaintiff satisfying the requirements of s66I. It imposes certain threshold requirements that must be met by the plaintiff before the statutory power conferred by s66G can be exercised.

6 The plaintiff has sworn a number of affidavits. Affidavits have also been sworn on behalf of the defendant.

7 This material discloses that prior to the commencement of these proceedings the plaintiff has had access to legal advice. Possibly this took place as early as 1989. In any event, through his then solicitors, in about 1991 he brought proceedings in the Compensation Court in respect of the same injury.

8 A determination was made in those proceedings. The Court has been told by the plaintiff that an appeal against that determination was not pursued by him.

9 Findings were made of a limited injury only to his right shoulder. It can be expected that estoppels arise from those findings which would have the effect that any success in these proceedings could be productive only of meagre damages.

10 Whilst no real attempt was made by the plaintiff to address the problems of satisfying the threshold required of him, I have carefully considered the material that is relied on by him. Despite the volume of material, the evidence falls well short of meeting the necessary criteria.

11 Leaving these matters aside, the power granted by s66G is a discretionary one. The plaintiff bears the onus of satisfying the court that the discretion should be exercised in his favour.

12 In the relevant circumstances of this case, I am not satisfied that the onus has been discharged. The application is doomed to failure for a variety of reasons.

13 The claim has been brought well out of time. The delay in the bringing of these proceedings is not adequately explained. The delay has caused both actual and presumptive prejudice. It is unnecessary to record in this judgment the specific matters of actual prejudice. These are set out in some detail in the affidavit material relied on by the defendant. Further, although any extension of time would seem to be of limited utility only to the plaintiff, it may put both parties and the court to an expensive and long trial.

14 The notice of motion filed on 10 February 2003 is dismissed. The plaintiff is to pay the costs of the notice of motion. The exhibits are to be returned.

Last Modified: 07/08/2004