AIELLO v MARRICKVILLE COUNCIL [2005] NSWCA 194

AIELLO v MARRICKVILLE COUNCIL [2005] NSWCA 194

It was not just and reasonable to grant an extension of time where the appellant and her lawyer made a conscious decision not to sue under the old law, aware of limitation issues, and only commenced proceedings after a favourable change in the law; a change in the law is not of itself a sufficient basis for extension when no evidentiary prejudice is shown by the respondent.

Parties
Appellant: Kerryn Joy Aiello; Respondent: Marrickville Council
Jurisdiction
Australia
Judgment Date
15 June 2005
Procedural Posture
Civil Appeal / Appeal From District Court (application for Extension of Time to Bring Proceedings for Damages for Personal Injury)
Outcome
appeal dismissed with costs
Legal Topics
Negligence, Council Liability, Limitation Periods, Non Feasance Rule, Extension of Time
Tort Law Civil Procedure Negligence Council Liability Limitation Periods Non Feasance Rule Extension of Time

Case Brief

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Parties

Kerryn Joy Aiello

Appellant

Marrickville Council

Respondent

Procedural Posture

Civil Appeal / Appeal From District Court (application for Extension of Time to Bring Proceedings for Damages for Personal Injury)

Legal Issues

  1. 1 Whether the appellant should be granted an extension of time to bring proceedings for damages for personal injury against the respondent council
  2. 2 Whether the appellant was ignorant of the operation of the Limitation Act 1969
  3. 3 Whether a change in the state of the law (Brodie/Ghantous) justifies an extension of the limitation period

Ratio Decidendi

It was not just and reasonable to grant an extension of time where the appellant and her lawyer made a conscious decision not to sue under the old law, aware of limitation issues, and only commenced proceedings after a favourable change in the law; a change in the law is not of itself a sufficient basis for extension when no evidentiary prejudice is shown by the respondent.

Court Disposition

appeal dismissed with costs

Orders

  • Appeal dismissed with costs