CHISHOLM v PASMINCO METALS-BHAS PTY LTD [1995] NSWCA 74

CHISHOLM v PASMINCO METALS-BHAS PTY LTD [1995] NSWCA 74

As at the time of commencement of proceedings, New South Wales law regarded the South Australian limitation period as procedural, not substantive. The status conferred by South Australian legislative amendment did not affect its procedural character for NSW proceedings, and thus the plaintiff could seek an extension of time under NSW legislation. The primary judge erred in striking out the claim because the South Australian limitation law had no substantive operation in NSW at that time.

Parties
Appellant: Max Chisholm; Respondent: Pasminco Metals-BHAS Pty Ltd
Jurisdiction
Australia
Judgment Date
24 July 1995
Procedural Posture
Appeal / Decision on Appeal From Motion to Strike Out Statement of Claim
Outcome
Appeal allowed
Legal Topics
Conflict of Laws, Limitation Periods, Substantive Vs Procedural Law, Full Faith and Credit
Private International Law Constitutional Law Conflict of Laws Limitation Periods Substantive Vs Procedural Law Full Faith and Credit

Case Brief

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Parties

Max Chisholm

Appellant

Pasminco Metals-BHAS Pty Ltd

Respondent

Procedural Posture

Appeal / Decision on Appeal From Motion to Strike Out Statement of Claim

Legal Issues

  1. 1 Whether the South Australian limitation period for personal injury is procedural or substantive for proceedings commenced in New South Wales before NSW enacted a comparable provision
  2. 2 Whether the South Australian enactment deeming the law substantive changes its character in NSW courts
  3. 3 Whether s118 of the Constitution requires full faith and credit to be given to a limitation period deemed substantive under South Australian law

Ratio Decidendi

As at the time of commencement of proceedings, New South Wales law regarded the South Australian limitation period as procedural, not substantive. The status conferred by South Australian legislative amendment did not affect its procedural character for NSW proceedings, and thus the plaintiff could seek an extension of time under NSW legislation. The primary judge erred in striking out the claim because the South Australian limitation law had no substantive operation in NSW at that time.

Court Disposition

Appeal allowed

Orders

  • The orders of 2 February 1995 be set aside
  • The defendant's notice of motion of 1 February 1994 be dismissed with costs