NSW Sugar Milling Co-Operative Ltd v Murray Norman Fowke [2002] NSWCA 229

NSW Sugar Milling Co-Operative Ltd v Murray Norman Fowke [2002] NSWCA 229

The summons was dismissed because the primary judge did not err in exercising the discretion to extend the limitation period. The claimant failed to place sufficient facts before the Court showing material prejudice caused by delay: there was no adequate evidence that relevant previous employers or records were unavailable, no evidence that forensic medical apportionment would be difficult or impossible, and no significant absence of recall of material matters. The primary judge did not impose an incorrect onus on the claimant, did not commit the error identified in Brisbane South Regional Health Authority v Taylor, and properly applied the relevant authorities.

Jurisdiction
Australia
Judgment Date
11 July 2002
Procedural Posture
Application for Leave to Appeal From a District Court Decision Extending the Limitation Period Under S 60 G of the Limitation Act 1969 (nsw) / Court of Appeal; Application for Leave Heard Concurrently With the Appeal on the Assumption That Leave Were to Be Granted
Outcome
Summons dismissed with costs.
Legal Topics
['extension of Limitation Period' 'industrial Deafness' 'prejudice From Delay' 'onus of Proof' 'leave to Appeal']
['limitation of Actions' 'civil Procedure' 'negligence' 'personal Injury'] ['extension of Limitation Period' 'industrial Deafness' 'prejudice From Delay' 'onus of Proof' 'leave to Appeal']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave to Appeal From a District Court Decision Extending the Limitation Period Under S 60 G of the Limitation Act 1969 (nsw) / Court of Appeal; Application for Leave Heard Concurrently With the Appeal on the Assumption That Leave Were to Be Granted

Legal Issues

  1. 1 ['Whether the primary judge failed to give adequate or appropriate weight to prejudice occasioned to the claimant by extending the limitation period.' 'Whether the primary judge misstated or misapplied the principles applicable to onus of proof in an application to extend time.' 'Whether the primary judge failed properly to apply CSR Limited & NSW Sugar Milling Co-Op Ltd v Rendell; NSW Sugar Milling Co-Op v Rendell, Brisbane South Regional Health Authority v Taylor, and Holt v Wynter.' 'Whether the claimant established sufficient facts showing material prejudice from delay, including difficulty apportioning hearing loss attributable to earlier employment and difficulties of memory or unavailable records.']

Ratio Decidendi

The summons was dismissed because the primary judge did not err in exercising the discretion to extend the limitation period. The claimant failed to place sufficient facts before the Court showing material prejudice caused by delay: there was no adequate evidence that relevant previous employers or records were unavailable, no evidence that forensic medical apportionment would be difficult or impossible, and no significant absence of recall of material matters. The primary judge did not impose an incorrect onus on the claimant, did not commit the error identified in Brisbane South Regional Health Authority v Taylor, and properly applied the relevant authorities.

Court Disposition

Summons dismissed with costs.

Orders

  • ['The Summons is dismissed.' "The claimant is to pay the opponent's costs."]