Richard Crookes Constructions Pty Ltd v Kozul (revised 6.9.05) [2005] NSWCA 312

Richard Crookes Constructions Pty Ltd v Kozul (revised 6.9.05) [2005] NSWCA 312

Leave to appeal was refused because the primary judge made no error warranting appellate intervention. The solicitor's affidavit and related material were capable of explaining the delay as arising from a mistaken understanding of the legal and medical significance of the first accident; the absence of an affidavit from the opponent personally was not fatal. The claimants had not shown relevant prejudice sufficient to make an extension unjust or unreasonable, and the challenged affidavit evidence was admissible in the interlocutory application.

Jurisdiction
Australia
Judgment Date
05 September 2005
Procedural Posture
Summons for Leave to Appeal From a District Court Order Extending a Limitation Period for a Personal Injury Claim / Court of Appeal Summons for Leave to Appeal
Outcome
Summons for leave to appeal dismissed with costs
Legal Topics
['extension of Limitation Period' 'length and Reasons for Delay' 'prejudice to Defendant' 'fair Trial' 'affidavit Evidence on Interlocutory Application' 'hearsay in Interlocutory Proceedings']
['limitation of Actions' 'personal Injury' 'civil Procedure' 'evidence'] ['extension of Limitation Period' 'length and Reasons for Delay' 'prejudice to Defendant' 'fair Trial' 'affidavit Evidence on Interlocutory Application' 'hearsay in Interlocutory Proceedings']

Case Brief

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Procedural Posture

Summons for Leave to Appeal From a District Court Order Extending a Limitation Period for a Personal Injury Claim / Court of Appeal Summons for Leave to Appeal

Legal Issues

  1. 1 ['Whether the District Court erred in extending the limitation period under Limitation Act 1969 s 60C(2) for the alleged accident of 2 June 2001.' "Whether the evidence, consisting principally of the solicitor's affidavit and not an affidavit from the opponent personally, gave a satisfactory understanding of why proceedings were not commenced within time." 'Whether prejudice to the claimants from delay meant it was not just and reasonable to extend time.' "Whether hearsay evidence in paragraphs 8 and 9 of the solicitor's affidavit was admissible on the interlocutory application."]

Ratio Decidendi

Leave to appeal was refused because the primary judge made no error warranting appellate intervention. The solicitor's affidavit and related material were capable of explaining the delay as arising from a mistaken understanding of the legal and medical significance of the first accident; the absence of an affidavit from the opponent personally was not fatal. The claimants had not shown relevant prejudice sufficient to make an extension unjust or unreasonable, and the challenged affidavit evidence was admissible in the interlocutory application.

Court Disposition

Summons for leave to appeal dismissed with costs

Orders

  • ['Summons for leave to appeal dismissed with costs']