ELEFTHERIOU v WATER BOARD [1991] NSWCA 91

ELEFTHERIOU v WATER BOARD [1991] NSWCA 91

(Per Clarke and Handley JJA, Kirby P dissenting): Under the District Court Rules, a motion for extension of the limitation period is an originating motion, separate from but ancillary to the action, and therefore grounds of appeal that challenge the decision to extend the limitation period are incompetent and should be struck out; however, the appeal from the final judgment remains competent and may proceed on other grounds, if properly pleaded within the prescribed time.

Parties
Plaintiff/respondent: Michael Eleftheriou; Defendant/appellant: Water Board (Metropolitan Water Sewerage and Drainage Board)
Jurisdiction
Australia
Judgment Date
17 May 1991
Procedural Posture
Appeal / Objection to Competence of Appeal From District Court Judgment and Orders on Limitation Period and Damages
Outcome
Motion by plaintiff to strike out the appeal in its entirety dismissed; however, grounds of appeal relating to the extension of limitation period struck out. Appellant given leave to amend appeal. If not amended within fourteen days, appeal dismissed with costs. Plaintiff awarded costs of the summons.
Legal Topics
Extension of Limitation Period, Appeal From District Court to Supreme Court/court of Appeal, Interlocutory and Ancillary Proceedings, Competence of Appeal, Procedural Jurisdiction, Orders Made 'in an Action' Vs 'ancillary to an Action'
Civil Procedure Limitation of Actions Appellate Practice Extension of Limitation Period Appeal From District Court to Supreme Court/court of Appeal Interlocutory and Ancillary Proceedings Competence of Appeal Procedural Jurisdiction +1 more

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Parties

Michael Eleftheriou

Plaintiff/respondent

Water Board (Metropolitan Water Sewerage and Drainage Board)

Defendant/appellant

Procedural Posture

Appeal / Objection to Competence of Appeal From District Court Judgment and Orders on Limitation Period and Damages

Legal Issues

  1. 1 Is an order extending the limitation period under Limitation Act 1969, s58(2) made 'in an action' or 'in proceedings ancillary to an action' for purposes of appeal competence?
  2. 2 Can a party appeal from a final District Court judgment on the ground of an alleged error in granting an extension of time for the cause of action under the Limitation Act?
  3. 3 Should grounds of appeal challenging the time extension decision be struck out for want of appellate jurisdiction?

Ratio Decidendi

(Per Clarke and Handley JJA, Kirby P dissenting): Under the District Court Rules, a motion for extension of the limitation period is an originating motion, separate from but ancillary to the action, and therefore grounds of appeal that challenge the decision to extend the limitation period are incompetent and should be struck out; however, the appeal from the final judgment remains competent and may proceed on other grounds, if properly pleaded within the prescribed time.

Court Disposition

Motion by plaintiff to strike out the appeal in its entirety dismissed; however, grounds of appeal relating to the extension of limitation period struck out. Appellant given leave to amend appeal. If not amended within fourteen days, appeal dismissed with costs. Plaintiff awarded costs of the summons.

Orders

  • Order that grounds 1, 2, and 3 in the notice of appeal filed on 6 June 1990 be struck out.
  • Leave granted to appellant to amend notice of appeal within fourteen days by filing an amended notice of appeal containing any further or other grounds as advised.