Lorenzo & Sons Pty Ltd v Campbell [1999] FCA 701

Lorenzo & Sons Pty Ltd v Campbell [1999] FCA 701

Leave to appeal was granted and the appeal allowed because the primary judge erred in principle by failing to take into account actual prejudice to the applicant arising from the evidentiary consequences of the long delay, including unavailable records, unidentified driver and lost opportunity to identify witnesses,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
28 May 1999
Procedural Posture
Application for Leave to Appeal and Appeal Concerning Extension of Time Under S 36 of the Limitation Act 1985 (act) / Application for Leave to Appeal From an Order of a Judge of the Supreme Court of the Australian Capital Territory Made on 4 September 1998 Granting Leave to Proceed; Leave Granted and Appeal Allowed
Outcome
Application for leave to appeal allowed; leave granted; appeal allowed; extension of time application dismissed; respondent ordered to pay costs.
Legal Topics
['extension of Time' 'leave to Appeal' 'prejudice From Delay' 'actual Prejudice and Presumptive Prejudice' 'reasons for Delay' 'vicarious Liability of Registered Owner']
['civil Procedure' 'limitation of Actions' 'personal Injury' 'motor Vehicle Negligence'] ['extension of Time' 'leave to Appeal' 'prejudice From Delay' 'actual Prejudice and Presumptive Prejudice' 'reasons for Delay' 'vicarious Liability of Registered Owner']

Source-derived case record

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Procedural Posture

Application for Leave to Appeal and Appeal Concerning Extension of Time Under S 36 of the Limitation Act 1985 (act) / Application for Leave to Appeal From an Order of a Judge of the Supreme Court of the Australian Capital Territory Made on 4 September 1998 Granting Leave to Proceed; Leave Granted and Appeal Allowed

Legal Issues

  1. 1 ['Whether the order extending time was attended with sufficient doubt and would work substantial injustice if wrong' 'Whether the primary judge erred in addressing actual prejudice arising from the absence of a police record, absence of a parking infringement notice, unidentified driver, and loss of opportunity to identify witnesses' 'Whether the primary judge erred in treating the alleged accident as simple' "Whether the primary judge gave excessive weight to the monitoring of the respondent's medical condition" "Whether the primary judge failed to take into account the respondent's earlier legal advice and her failure to maintain contact with her solicitor when considering delay"]

Ratio Decidendi

Leave to appeal was granted and the appeal allowed because the primary judge erred in principle by failing to take into account actual prejudice to the applicant arising from the evidentiary consequences of the long delay, including unavailable records, unidentified driver and lost opportunity to identify witnesses, and by failing to consider the respondent's earlier legal advice and her own role in cutting off communication with her solicitor. Those errors made the extension order attended with sufficient doubt and such that it would work substantial injustice.

Court Disposition

Application for leave to appeal allowed; leave granted; appeal allowed; extension of time application dismissed; respondent ordered to pay costs.

Orders

  • ['The application for leave to appeal be allowed and leave be granted.' 'The appeal be allowed.' "The order of Higgins J made on 4 September 1998 be set aside and in lieu thereof the following order be substituted: The respondent's application for extension of time within which to bring proceedings against the...