Binetter v Binetter [2022] NSWCA 169

Binetter v Binetter [2022] NSWCA 169

The appellant did not discharge the onus to prove Mrs Wolff was under a relevant disability sufficient to suspend the limitation period under s 11(3) and s 52 of the Limitation Act 1969 (NSW), as lay and medical evidence did not establish incapacity or substantial impediment in managing affairs related to commencing proceedings before expiry of the limitation period. The evidence showed some cognitive impairment but not to the degree required; powers of attorney and guardianship did not prevent finding of disability; expert reports’ limitations were properly considered; and no error was shown in not drawing a Jones v Dunkel inference.

Jurisdiction
Australia
Judgment Date
01 September 2022
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed
Legal Topics
['limitation Period Suspension' 'disability' 'admissibility of Medical and Business Records' 'expert Medical Evidence Admissibility' 'solicitor Client Privilege' 'jones V Dunkel Inference']
['limitation of Actions' 'evidence'] ['limitation Period Suspension' 'disability' 'admissibility of Medical and Business Records' 'expert Medical Evidence Admissibility' 'solicitor Client Privilege' 'jones V Dunkel Inference']

Case Brief

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether Mrs Wolff was under a disability sufficient to suspend the limitation period under the Limitation Act 1969 (NSW)' 'Whether the primary judge erred in assessing expert medical evidence and lay witness evidence' 'Whether enduring powers of attorney and guardianship prevent finding of disability' 'Whether medical records required expert attendance for cross-examination' 'Whether absence of evidence from the solicitor justified a Jones v Dunkel inference']

Ratio Decidendi

The appellant did not discharge the onus to prove Mrs Wolff was under a relevant disability sufficient to suspend the limitation period under s 11(3) and s 52 of the Limitation Act 1969 (NSW), as lay and medical evidence did not establish incapacity or substantial impediment in managing affairs related to commencing proceedings before expiry of the limitation period. The evidence showed some cognitive impairment but not to the degree required; powers of attorney and guardianship did not prevent finding of disability; expert reports’ limitations were properly considered; and no error was shown in not drawing a Jones v Dunkel inference.

Court Disposition

Appeal dismissed

Orders

  • ['Dismiss the appeal from the judgment and orders made in the Common Law Division.' "Order that the appellant pay the respondent's costs in this Court."]