CITATION: Telstra Corporation Limited v Albert John Rea [2002] NSWCA 49 FILE NUMBER(S): CA 40244/01 HEARING DATE(S): 10/12/01 JUDGMENT DATE:
5 March 2002PARTIES :
Telstra Corporation Limited (Appellant)
Albert John Rea (Respondent)JUDGMENT OF: Mason P at 1; Foster AJA at 25; Einstein J at 44
LOWER COURT JURISDICTION : District Court LOWER COURT
FILE NUMBER(S) :DC6673/00 LOWER COURT
JUDICIAL OFFICER :Garling DCJ
COUNSEL: JD Hislop QC, NE Chan (Appellant)
KW Andrews (Respondent)SOLICITORS: Sparke Helmore (Appellant)
Sowden Ackerman (Respondent)CATCHWORDS: Limitation of Action - Application for Extension - Appeal from granting of extension of time in which to commence action - Application for leave to extend limitation period in which to bring action pursuant to s 60G of Limitation Act 1969 (NSW) - Action for damages for injury relating to hearing loss suffered by respondent during employment with appellant - Whether respondent aware or ought to have become aware of connection between personal injury and appellant's acts or omissions - Whether requirements of s 601 of the Limitation Act 1969 (NSW) met - Whether actual or constructive knowledge of injury relevant - Imputation of knowledge - Whether extension of limitation period just and reasonable - Whether exercise of discretion miscarried LEGISLATION CITED: Limitation Act 1969 (NSW)
Limitation (Amendment) Act 1990 (NSW).
Suitors' Fund Act 1951CASES CITED: Barlow v Homebush Bay Development Corporation (unreported, 6 November 1995, NSWCA, CA 40695/93, BC 9501753)
BHP Steel (AIS) Pty Limited v Lakovski (unreported, 24 November 2000, NSWCA, CA 40065/99, BC 200007381)
Commonwealth v McLean (1996) 41 NSWLR 389
Council of the Shire of Sutherland v McNeilly (unreported, 12 December 1994, NSWCA, BC 9405011)
CRA Limited v Martignago (1996) 39 NSWLR 13
CSR Limited & NSW Sugar Milling Co-Op Ltd v Rendell (unreported, 7 August 1996, NSWCA, CA40090/96, BC 9603437)
Dedousis v The Water Board (1994) 181 CLR 171
Dedousis v The Water Board (1993) AustTortsR 81-233
Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129
Do Carmo v Ford Excavations Pty Limited (1983-1984) 154 CLR 234.
Drayton Coal Pty Ltd v Drain, Court of Appeal, (unreported, 22 August 1995, NSWCA, BC9505244)
Ford Excavations v Do Carmo [1981] 2 NSWLR 253
Harris v Commercial Minerals Limited (1996) 186 CLR 1
Holt v Wynter (2000) 49 NSWLR 128
Kinzett v McCourt & Ors (1999) 46 NSWLR 32 (unreported, 9 February 1999, CA NSW, CA 40773/96)
Milne v International Combustion Australia Ltd [1953] WCR 80
Nominal Defendant v Manning (2000) 50 NSWLR 139
Sharp v State Rail Authority of New South Wales (unreported, 8 November 1995, NSWCA, CA 40393/9, BC 9501613)
Smith v. Central Asbestos Co. [1973] AC 518
Spadotto & Company Pty Limited (in liq) v Raber (unreported, 27 October 1995, NSWCA, CA 40425/95, BC 9501698)DECISION: 1.Grant leave to appeal; 2. Appeal dismissed with costs.
CA 40244/01
MASON P
FOSTER AJA
EINSTEIN J
5 MARCH 2002
TELSTRA CORPORATION LIMITED v Albert John REA
JUDGMENT
1 MASON P: I have had the advantage…
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Details
- AGLC
- Telstra Corporation v Rea [2002] NSWCA 49
- Case
- [2002] NSWCA 49
- Decision Date
CaseChat Overview and Summary
The appeal concerned an application for an extension of time to commence proceedings for damages relating to hearing loss. The respondent, a former employee of the appellant, sought to extend the limitation period under section 60G of the *Limitation Act 1969* (NSW) to bring an action against the appellant for injury sustained during their employment. The primary judge had granted this extension. The appeal was heard by Mason P, Foster AJA, and Einstein J in the Court of Appeal of New South Wales.
The central legal issues before the Court of Appeal were whether the respondent was aware, or ought to have become aware, of the connection between their hearing loss and the appellant's acts or omissions, and whether the requirements of section 60I of the *Limitation Act 1969* (NSW) were met. The court also had to consider the relevance of actual or constructive knowledge of the injury, the imputation of knowledge, and whether the initial exercise of discretion to grant an extension of the limitation period was just and reasonable, or if it had miscarried.
The Court of Appeal determined that the primary judge had correctly applied the relevant principles. It was held that the focus under section 60I was on the plaintiff's knowledge of the injury and its cause, not necessarily the legal fault of the defendant. The court found that the respondent's knowledge of their hearing loss and its likely connection to their employment was not established until a later date, which justified the extension. The discretion to grant the extension was therefore upheld.
The Court of Appeal granted leave to appeal but dismissed the appeal, ordering the appellant to pay the respondent's costs.
The central legal issues before the Court of Appeal were whether the respondent was aware, or ought to have become aware, of the connection between their hearing loss and the appellant's acts or omissions, and whether the requirements of section 60I of the *Limitation Act 1969* (NSW) were met. The court also had to consider the relevance of actual or constructive knowledge of the injury, the imputation of knowledge, and whether the initial exercise of discretion to grant an extension of the limitation period was just and reasonable, or if it had miscarried.
The Court of Appeal determined that the primary judge had correctly applied the relevant principles. It was held that the focus under section 60I was on the plaintiff's knowledge of the injury and its cause, not necessarily the legal fault of the defendant. The court found that the respondent's knowledge of their hearing loss and its likely connection to their employment was not established until a later date, which justified the extension. The discretion to grant the extension was therefore upheld.
The Court of Appeal granted leave to appeal but dismissed the appeal, ordering the appellant to pay the respondent's costs.
Orders
Orders of the court
1.Grant leave to appeal; 2. Appeal dismissed with costs.
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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