Tekno Ceramics Pty Ltd v Milat

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.