Robertson v The Zinc Corporation Pty Ltd

The claimant, Robertson, sought leave to appeal against a primary judge's decision denying an extension of the limitation period for an action against The Zinc Corporation Pty Ltd. The claim concerned noise-induced hearing loss allegedly suffered during employment between 1954 and 1978. The appeal concerned whether the absence of a particular witness would be significantly prejudicial to the respondent and whether the primary judge had failed to consider other available evidence.

The central legal issue before the Court of Appeal was whether the primary judge erred in refusing to grant an extension of time to bring the claim. This involved determining whether the prejudice to the respondent, arising from the unavailability of a key witness, was outweighed by other considerations, and whether the primary judge had properly assessed all relevant evidence in reaching their conclusion.

Santow JA and Mathews AJA found that the primary judge had not erred in their assessment. The Court considered that the absence of the witness would indeed cause significant prejudice to the respondent, and that the primary judge had adequately considered the other evidence presented. Consequently, leave to appeal was denied, and the claimant was ordered to pay the opponent's costs.