BRIGGS v SEWELL [2002] NSWCA 182

BRIGGS v SEWELL [2002] NSWCA 182

The District Court judge's ultimate finding appeared to select 19 July 2000 as the commencement date for s 60I purposes because Ms Sewell then received legal advice about the limitation period and instructed solicitors. That was an inappropriate basis because s 60I turns on awareness of the matters in s 60I(1)(a), not awareness of the statutory limitation period. Alternatively, the reasons were critically unclear and did not explain why Ms Sewell's asserted awareness in April or May 1998 did not defeat the application. This error and uncertainty warranted leave to appeal, the appeal being upheld and the matter remitted for rehearing.

Jurisdiction
Australia
Judgment Date
02 July 2002
Procedural Posture
Application for Leave to Appeal From an Interlocutory Decision Granting Leave to Commence Proceedings Although Out of Time / Court of Appeal Application for Leave; by Consent, If Leave Granted, Appeal to Be Determined
Outcome
Leave to appeal granted; appeal upheld with costs; District Court orders set aside; application remitted to the District Court for rehearing.
Legal Topics
['extension of Limitation Period' "awareness of Personal Injury and Connection With Defendant's Acts or Omissions" 'interlocutory Appeal' 'alleged Sexual, Emotional and Physical Assault']
['limitation Law' 'civil Procedure' 'personal Injury'] ['extension of Limitation Period' "awareness of Personal Injury and Connection With Defendant's Acts or Omissions" 'interlocutory Appeal' 'alleged Sexual, Emotional and Physical Assault']

Case Brief

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Procedural Posture

Application for Leave to Appeal From an Interlocutory Decision Granting Leave to Commence Proceedings Although Out of Time / Court of Appeal Application for Leave; by Consent, If Leave Granted, Appeal to Be Determined

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from the District Court order extending time to commence proceedings.' 'Whether the District Court judge correctly applied ss 60G and 60I of the Limitation Act (NSW) 1969.' "Whether the opponent was unaware, before expiry of the limitation period, of the nature or extent of her personal injury or its connection with the claimant's alleged acts or omissions." 'Whether the extension application was made within 3 years after the opponent became aware, or ought to have become aware, of the matters in s 60I(1)(a).']

Ratio Decidendi

The District Court judge's ultimate finding appeared to select 19 July 2000 as the commencement date for s 60I purposes because Ms Sewell then received legal advice about the limitation period and instructed solicitors. That was an inappropriate basis because s 60I turns on awareness of the matters in s 60I(1)(a), not awareness of the statutory limitation period. Alternatively, the reasons were critically unclear and did not explain why Ms Sewell's asserted awareness in April or May 1998 did not defeat the application. This error and uncertainty warranted leave to appeal, the appeal being upheld and the matter remitted for rehearing.

Court Disposition

Leave to appeal granted; appeal upheld with costs; District Court orders set aside; application remitted to the District Court for rehearing.

Orders

  • ['Grant leave to appeal.' 'Appeal upheld with costs.' 'Orders below set aside.' 'Application be remitted to the District Court to be heard and determined in accordance with these reasons and the costs of the first application be determined by the judge hearing the remitted application.' 'Respondent to have a...