Creevey v Barrois [2005] NSWCA 264

Creevey v Barrois [2005] NSWCA 264

Although leave to appeal was granted because the primary judge arguably erred on the availability of a contribution cross-claim under s 26(1)(b) of the Limitation Act 1969 (NSW), the appeal failed because Mr Creevey did not establish that the alleged lost cross-claim against Mr Clements was viable and realistic. The evidence showed, at most, a theoretical possibility of contribution; accordingly no real and practical prejudice sufficient to make the out-of-time proceedings unfair was established.

Jurisdiction
Australia
Judgment Date
15 August 2005
Procedural Posture
Application for Leave to Appeal From a District Court Decision Granting Leave to Commence Motor Accident Proceedings Out of Time / Court of Appeal; Leave to Appeal Granted and Appeal Dismissed
Outcome
Leave to appeal granted; appeal dismissed with costs.
Legal Topics
['extension of Time to Commence Proceedings Under Motor Accidents Act 1988 (nsw)' 'fair Trial After Delay' 'prejudice From Delay' 'contribution Between Tortfeasors' 'lost Opportunity to Cross Claim Against a Third Party' 'limitation Period Under S 26(1)(b) of the Limitation Act 1969 (nsw)']
['limitation of Actions' 'motor Accidents' 'torts' 'civil Procedure'] ['extension of Time to Commence Proceedings Under Motor Accidents Act 1988 (nsw)' 'fair Trial After Delay' 'prejudice From Delay' 'contribution Between Tortfeasors' 'lost Opportunity to Cross Claim Against a Third Party' 'limitation Period Under S 26(1)(b) of the Limitation Act 1969 (nsw)']

Case Brief

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Procedural Posture

Application for Leave to Appeal From a District Court Decision Granting Leave to Commence Motor Accident Proceedings Out of Time / Court of Appeal; Leave to Appeal Granted and Appeal Dismissed

Legal Issues

  1. 1 ['Whether leave should have been granted to commence proceedings more than three years after the date by which the motor accident claim had to be made under s 52(4) of the Motor Accidents Act 1988 (NSW).' 'Whether, despite the delay, a fair trial of the issues between the parties could reasonably be anticipated.' 'Whether Mr Creevey suffered significant prejudice because the time to bring a contribution claim against a potential joint tortfeasor had expired under s 26(1)(b) of the Limitation Act 1969 (NSW).' 'Whether the alleged lost cross-claim against Mr Clements was viable and realistic rather than merely fanciful or theoretical.']

Ratio Decidendi

Although leave to appeal was granted because the primary judge arguably erred on the availability of a contribution cross-claim under s 26(1)(b) of the Limitation Act 1969 (NSW), the appeal failed because Mr Creevey did not establish that the alleged lost cross-claim against Mr Clements was viable and realistic. The evidence showed, at most, a theoretical possibility of contribution; accordingly no real and practical prejudice sufficient to make the out-of-time proceedings unfair was established.

Court Disposition

Leave to appeal granted; appeal dismissed with costs.

Orders

  • ['Grant leave to appeal.' 'Appeal dismissed with costs.']