Tekno Ceramics Pty Ltd v Milat - [2003] NSWCA 254

NEW SOUTH WALES COURT OF APPEAL

CITATION: TEKNO CERAMICS PTY LTD v ZDENKO MILAT [2003] NSWCA 254

FILE NUMBER(S):
40169/03

HEARING DATE(S): 11/09/2003

JUDGMENT DATE: 19/09/2003

PARTIES:
TEKNO CERAMICS PTY LTD - Claimant
ZDENKO MILAT - Respondent

JUDGMENT OF: Meagher JA Handley JA Foster AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 1527/01

LOWER COURT JUDICIAL OFFICER: Delaney J

COUNSEL:
Mr J. Hislop QC / R. de Meyrick - Appellant
Mr David Burwood - Respondent

SOLICITORS:
Sparke Helmore - Appellant
Frisina & Associates - Respondent

CATCHWORDS:
Appeal seeking an extension of time in which to bring an action for damages for personal injury.

LEGISLATION CITED:
s 151D of the Workers Compensation Act 1987 (NSW)
Limitation Act 1969

DECISION:
1. The appeal be upheld. Orders of Delaney DCJ of 4 October 2002 set aside.
2. In lieu thereof order that the respondent's Notice of Motion of 26 November 2001 be dismissed with costs.
3. The respondent to pay the appellant's costs of the appeal and in that respect to have a Certificate under the Suitors Fund Act.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40169/03
DC 1527/01
MEAGHER JA
HANDLEY JA
FOSTER AJA
Friday, 19 September, 2003

TEKNO CERAMICS PTY LTD v ZDENKO MILAT

Judgment

MEAGHER JA: I agree with Foster AJA.
HANDLEY JA: I agree with Foster AJA.
FOSTER AJA: The claimant, Tekno Ceramics Pty Limited (“Tekno”) has appealed by leave from a decision of Delaney DCJ, given on 5 October 2002. His Honour had before him two notices of motion, one brought by the opponent, Zdenko Milat (“Milat”), seeking an extension of time, pursuant to s 151D of the Workers’ Compensation Act 1987 (NSW), in which to bring an action for damages for personal injury occasioned to him in an accident, which occurred on or about 17 September 1993, whilst he was in the employment of Tekno. The other notice of motion was brought by Tekno which, in effect, sought an order that such leave be not granted or, if it were, that the time for Milat to file his statement of claim should run from the date of the order extending time for its filing. This latter order was sought in the context that Milat had already filed a statement of claim in the District Court on 26 November 2001, which, more than eight years having elapsed since the accident, was out of time unless the extension were granted. There were perceived advantages to the claimant if it could avoid the back-dating of any order for extension of time to the date of the filing of the statement of claim.
His Honour granted the leave sought by Milat and directed that it should “apply as and from 26 November 2001 the date on which the statement of claim was filed.” It is necessary to refer briefly to the course of the case at first instance.
His Honour had for consideration the affidavit of Milat dated 13 June 2002 and…

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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Details

Case: [2003] NSWCA 254
Decision Date: 19 September 2003

CaseChat Overview and Summary

Tekno Ceramics Pty Ltd (the appellant) appealed to the Supreme Court of New South Wales against an order of Delaney DCJ which had granted the respondent, Milat, an extension of time to bring an action for damages for personal injury. The primary dispute concerned whether Milat had established sufficient grounds to justify the late commencement of his personal injury claim against Tekno Ceramics.

The central legal issue before the Court of Appeal was whether the primary judge erred in exercising their discretion to grant an extension of time under section 65J of the Supreme Court Act 1970 (NSW). This required the court to consider whether Milat had demonstrated that the delay in commencing proceedings was not unreasonable, and whether it was just and fair to grant the extension, taking into account all relevant circumstances, including the prejudice to the defendant.

The Court of Appeal found that the primary judge had misapplied the relevant legal principles and had failed to give adequate weight to the prejudice suffered by Tekno Ceramics due to the significant delay. The court determined that Milat had not provided a satisfactory explanation for the delay in commencing his action, and that the prejudice to Tekno Ceramics, particularly in relation to the availability of evidence and the ability to mount a defence, was substantial. Consequently, the court concluded that it was not just and fair to grant the extension of time.

The appeal was upheld, and the orders of Delaney DCJ were set aside. In their place, the respondent's Notice of Motion seeking an extension of time was dismissed with costs. The respondent was also ordered to pay the appellant's costs of the appeal, with a Certificate granted under the Suitors Fund Act.

Orders

Orders of the court

1. The appeal be upheld. Orders of Delaney DCJ of 4 October 2002 set aside.

2. In lieu thereof order that the respondent's Notice of Motion of 26 November 2001 be dismissed with costs.

3. The respondent to pay the appellant's costs of the appeal and in that respect to have a Certificate under the Suitors Fund Act.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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