SDC Kennedy & Bird v Kerry O'Brien; Kennedy & Bird (Builders) v Kerry O'Brien [2002] NSWCA 367

SDC Kennedy & Bird v Kerry O'Brien; Kennedy & Bird (Builders) v Kerry O'Brien [2002] NSWCA 367

The primary judge's finding of not insignificant prejudice was supported by the evidence and, in the circumstances of long-delayed industrial deafness claims where witness evidence and allocation of loss between periods and insurers would be difficult, amounted to significant prejudice. By nevertheless granting the extensions and by comparing prejudice to the plaintiff with prejudice to the defendants, the primary judge made errors of principle and the discretion miscarried. The limitation extension applications therefore had to be refused.

Jurisdiction
Australia
Judgment Date
11 November 2002
Procedural Posture
Applications for Leave to Appeal From Orders Extending Limitation Periods / Summonses for Leave to Appeal and Applications to Extend Time for Filing the Summonses
Outcome
Time to file the summonses for leave to appeal extended; leave to appeal granted; appeals allowed; District Court judgment set aside; notice of motion for limitation extensions dismissed.
Legal Topics
['extension of Limitation Period' 'industrial Deafness' 'prejudice to Defendants' 'accrued Limitation Defence' 'leave to Appeal From Interlocutory Orders']
['limitation of Actions' 'civil Procedure' 'torts'] ['extension of Limitation Period' 'industrial Deafness' 'prejudice to Defendants' 'accrued Limitation Defence' 'leave to Appeal From Interlocutory Orders']

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Procedural Posture

Applications for Leave to Appeal From Orders Extending Limitation Periods / Summonses for Leave to Appeal and Applications to Extend Time for Filing the Summonses

Legal Issues

  1. 1 ['Whether time should be extended for filing the summonses for leave to appeal.' 'Whether leave to appeal should be granted from interlocutory orders extending limitation periods.' 'Whether the primary judge erred in granting extensions of limitation periods after finding not insignificant prejudice to the prospective defendants.' 'Whether the discretion to extend a limitation period involved comparing prejudice to the prospective plaintiff with prejudice to the prospective defendants.']

Ratio Decidendi

The primary judge's finding of not insignificant prejudice was supported by the evidence and, in the circumstances of long-delayed industrial deafness claims where witness evidence and allocation of loss between periods and insurers would be difficult, amounted to significant prejudice. By nevertheless granting the extensions and by comparing prejudice to the plaintiff with prejudice to the defendants, the primary judge made errors of principle and the discretion miscarried. The limitation extension applications therefore had to be refused.

Court Disposition

Time to file the summonses for leave to appeal extended; leave to appeal granted; appeals allowed; District Court judgment set aside; notice of motion for limitation extensions dismissed.

Orders

  • ['Order that the time for the filing of the summonses for leave to appeal be extended in matter No 40378/02 to 8 May and in matter No 40386/02 to 10 May.' 'Leave to appeal granted, subject to the notices of appeal being filed within 21 days.' 'Appeals allowed.' 'Judgment of Christie DCJ of 18 January 2002 set aside...