Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer

The Application for Leave 57 In giving her decision, her Honour was exercising a discretion. Consequently, the claimant, in seeking leave, must demonstrate a reasonably arguable case of miscarriage of discretion, in accordance with the principles of House v The King (1936) 55 CLR 499. 58 In this regard, the claimant submits that her Honour did not "apply the appropriate test in relation to the need for forensic diligence to be displayed by a plaintiff in and about bringing the application." It was also submitted that there was error on the part of the primary judge "in failing to take into account all of the factors referred to in s 60E(1)(c)-(g) of the Limitation Act 1969. 59 In its written submissions, the claimant expressed its main argument in relation to these submissions, in the following way:- "1. By 30 March 1999 it is clear that the opponent - (a) knew that he was seriously injured; (b) knew the identity of the claimant and knew that it was the occupier of the site upon which he was injured; (c) received legal advice and knew that he had a right to bring a claim for damages against not only his employer, but also the claimant; (d) knew that in order to bring such a claim in negligence against the claimant, such claim must be commenced by 7 August 2001; (e) chose not to bring such a claim and instead changed solicitors and pursued a claim under the Workers Compensation Act. 2. There was no sufficient explanation by the opponent as to why he did not bring common law proceedings against the claimant until 2002, having been previously advised of his right to do so and the date by which he was obliged to do so. 3. In the circumstances, her Honour erred in failing to take into account or give sufficient weight to the lack of forensic diligence shown by the opponent in and about the bringing of his claim." 60 In effect, the claimant submits that there was a demonstrably appellable failure on the part of her Honour to apply statements of principle from the judgment of Ipp JA in Itek Graphix, with which Spigelman CJ agreed. It is convenient to set-out those passages, at para 90, p 225, as follows:- "The reason for this requirement is not hard to understand. A limitation provision is an expression of intent by Parliament that persons who wish to sue must do so within the stipulated time unless circumstances exist entitling them to obtain leave. A limitation provision is the general rule and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence. To allow parties leave, when they have been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the intent of Parliament. Just as the rules of court must prima facie be obeyed ( Ratnam v Cumarasamy [[1965] 1 WLR 8 at as; [1964] 3 All ER 933), so must the laws of Parliament."