Parsons v Doukas

Case [2001] NSWCA 128


NEW SOUTH WALES COURT OF APPEAL

CITATION:      PARSONS v. DOUKAS [2001]  NSWCA 128

FILE NUMBER(S):
40724/99

HEARING DATE(S):               20/04/2001

JUDGMENT DATE: 08/08/2001

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

LEGISLATION CITED:
Motor Accidents Act 1988 s.52

DECISION:
Appeal dismissed.

JUDGMENT:

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

  1. 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.”

  2. 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.

  3. POWELL JA: Pursuant to leave granted…

Continue reading Parsons v Doukas

Sign in free to access the full text

Details
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.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.