Shirriff v Nominal Defendant

Shirriff (the appellant) brought a claim for personal injuries arising from a motor vehicle accident against the Nominal Defendant (the respondent). The appellant sought to commence proceedings out of time, and the primary judge had made an order against the appellant. The appellant appealed this decision to the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the primary judge's order, which effectively prevented the appellant from pursuing her claim, was made "against good faith" within the meaning of the relevant legislation. This required the court to consider the circumstances under which an order could be characterised as being made in bad faith, particularly in the context of extending time for the commencement of proceedings in a personal injury claim.

The Court of Appeal considered the evidence and the conduct of the parties. It found that the primary judge had erred in making the order against the appellant. The court applied principles relating to the proper exercise of discretion in granting extensions of time and the threshold for demonstrating an order was made "against good faith". The court determined that the circumstances did not support a finding that the appellant's actions or the application for an extension of time were made in bad faith.

Consequently, the appeal was allowed, and the order made by the primary judge was set aside.