PARTIES: RICHARD PARSONS - Appellant CARROLL DOUKAS - Respondent
JUDGMENT OF: Sheller JA Powell JA Davies AJA
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 2801/99
LOWER COURT JUDICIAL OFFICER: Christie DCJ
COUNSEL: P. P. Strasser - Appellant W. M. Fitzsimmons - Respondent
SOLICITORS: Charles G. Roth & Co. (Surry Hills) - Appellant Abbott Tout - Respondent
CATCHWORDS: LIMITATION OF ACTIONS - Motor vehicle accidents - Leave to commence proceedings out of time - Discretion to grant leave - Scope of discretion - Factors to be considered D
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40724/99
DC 2801/99
SHELLER JA POWELL JA DAVIES AJA
8 August 2001
PARSONS v. DOUKAS
JUDGMENT
SHELLER JA: I have had the benefit of reading the reasons for judgment prepared by Powell JA and by Davies AJA. In my reasons for judgment in Holt v Wynter (2000) 49 NSWLR 128 I concluded, on the basis of the authorities referred to, that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant (147, para 119). The authorities also deal with the tests to be applied where there has been long and unexplained delay which has not resulted in significant prejudice to the potential defendant. In that context as I said (147, para 113) it may be that, in the absence of significant prejudice to a potential defendant, there is no reason why the discretion should not be exercised in favour of the applicant. However, the authorities do not in my opinion suggest that the Court is bound to grant leave to commence proceedings in the absence of proof of any significant prejudice to the proposed defendant in doing so, for example in a situation of long and unexplained delay; Holt v Wynter at 147, para 116. The real question remains as Toohey and Gummow JJ pointed out in Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541 at 550:
“…. whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”
As Powell JA emphasises in para 69 of his judgment, the relevant discretion is a discretion to grant and not a discretion to refuse leave. The applicant must satisfy the Court that grounds exist for the exercise of the discretion in his or her favour. I agree with Powell JA’s analysis of the judgment of the first instance Judge and with his Honour’s conclusion that the Judge has not been shown to have erred in the exercise of his discretion. The appeal should be dismissed with costs.
POWELL JA: Pursuant to leave granted…
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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AGLC
Parsons v Doukas [2001] NSWCA 128
Case
[2001] NSWCA 128
Decision Date
CaseChat Overview and Summary
In *Parsons v Doukas*, the Supreme Court of Victoria considered an appeal concerning the discretion to grant leave to commence proceedings out of time following a motor vehicle accident. The appellant sought to bring an action against the respondent after the expiry of the statutory limitation period.
The central legal issue before the Court was the scope of the discretion vested in the court under the relevant legislation to grant an extension of time for commencing proceedings in such circumstances. This involved determining the factors that a court should properly take into account when exercising this discretion.
The Court affirmed that the discretion to grant an extension of time is broad but must be exercised judicially. It reiterated that a primary consideration is whether the plaintiff has a reasonably arguable case. The Court also emphasised the importance of considering the prejudice to the defendant if an extension were granted, balanced against the prejudice to the plaintiff if it were refused. The Court found no error in the lower court's exercise of discretion and therefore dismissed the appeal.