Seeking leave to make court applications out of time

By Gabriella Sarkis and Alyce Kliese

Many court applications must be made within a certain period of time (called a limitation period), which are usually established by statutory provisions under the legislation that the application relates to, or pursuant to the Limitation Act 1969 (NSW).

If an applicant wants to commence an application outside of the limitations period, they will need to seek leave (i.e. permission) of the court to do so.

The following general principles should be considered when seeking leave from the Court to make an application that is out of time:

1. Onus: the onus is on the applicant to satisfy the court that the limitation period should be extended.
2. Test: the test is whether the justice of the case requires that leave be granted.
3. Consideration (time): a material consideration is whether a fair trial is possible by reason of the time that has elapsed since the events giving rise to the cause of action. That is to be judged at the time of the application. It is not a question of comparing the situation at the time of the application with the situation when the limitation period expired and confining attention to any additional prejudice.
4. Consideration (prejudice): with respect to prejudice the following principles apply:(a) a respondent is (in the first instance) considered to be prejudiced by being deprived of the protection of the limitation period;(b) it is open to a respondent to adduce evidence of any further particular prejudice claimed;(c) an application can be refused if the effect of granting an extension would result in significant prejudice to the respondent.
5. Consideration (explanation): any explanations for the delay are relevant. An application can be refused if the applicant, having made a deliberate decision not to commence proceedings within the limitation period, fails to give a satisfactory explanation for that conduct, notwithstanding that the respondent would suffer no prejudice from the delay.

For further reading and reference, these principles were established in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Holt v Wynter (2000) 49 NSWLR 128; and Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207.