Ali v Woolworths Limited

District Court

New South Wales

Medium Neutral Citation:

Ali v Woolworths Limited [2013] NSWDC 137

Hearing dates:

21 June 2013

Decision date:

21 June 2013

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

1. Dismiss the plaintiff's notice of motion (filed 31 May 2013).

2. Defendant's costs of the motion be the defendant's costs in the proceedings.

3. Stand over for directions on 18 July 2013 at 9.30am before the Judicial Registrar.

Catchwords:

LIMITATIONS - discoverable action - whether maintainable

Legislation Cited:

Limitation Act 1969, s 50C, s 50D
Uniform Civil Procedure Rules 2005, r 28.2, r 42.1

Cases Cited:

Baker-Morrison v State of New South Wales [2009] NSWCA 35
Jones v Dunkel (1959) 101 CLR 298
Lee v Woolworths Ltd [2013] NSWSC 238
State of New South Wales v Gillett [2012] NSWCA 83
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514

Category:

Interlocutory applications

Parties:

Ibrahim Al Am Ali (plaintiff)
Woolworths Limited (defendant)

Representation:

Mr J Catsanos (defendant)
P K Simpson & Co Pty Limited (plaintiff)
Lee and Lyons Lawyers (defendant)

File Number(s):

2013/70156

Publication restriction:

No

ex tempore Judgment

1. Mr Ibrahim Al Am Ali alleges that he was employed by IPA Personnel Pty Limited as a storeman to work at the premises of Woolworths Limited ("Woolworths") at Minchinbury during 2007.

1. Mr Ali says that on 1 July 2007, during the course of his employment and whilst at Woolworths' premises at Minchinbury, he was lifting, carrying and stacking boxes of meat when his right foot was caught between two pallets causing him to twist, fall and thereby suffer injury, loss and damage.

1. Mr Ali received advice from a firm of solicitors and counsel in 2007 through to 2010. However, it was not until 7 March 2013 that Mr Ali commenced proceedings against Woolworths. The matter comes before me by reason of a notice of motion filed by Mr Ali seeking the following relief:

"1. That the Plaintiff's action against the Defendant be deemed maintainable as it was brought within 3 years from the date on which the cause of action was discoverable by the Plaintiff, pursuant to the provisions of Sections 50C and 50D of the Limitation Act 1969 (NSW)."

1. The application is brought apparently on an understanding that it is analogous to an application for an extension of time. That is not correct. The relevant parts of ss 50C and 50D of the Limitation Act 1969 are as follows:

"50C Limitation period for personal injury actions

(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:

(a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,

..."

"50D Date cause of action is discoverable

(1) For the purposes of this Division, a cause…