CATCHWORDS:
Limitation of Actions - whether a failure to comply with s48(4) of the Limitation of Actions Act 1936 of South Australia operates to extinguish a cause of action.
Appeal - error of law - irreconciliable findings of fact, not explained.

LEGISLATION CITED:
Limitation of Actions Act 1936 of South Australia
Dust Diseases Tribunal Act 1989
Suitors' Fund Act 1951

DECISION:
Appeal upheld. Judgment and orders of the Dust Diseases Tribunal set aside. Matter be remitted to the Tribunal for re-hearing. Respondent to pay Appellant’s costs of the appeal, but should have a certificate under the Suitors’ Fund Act 1951.

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41036/04
DDT 375/02
GILES JA
SANTOW JA
BROWNIE AJA
Friday 16 December 2005

AMACA PTY LTD v RIDGWAY

Judgment

GILES JA: I agree with Brownie AJA.
SANTOW JA: I agree with Brownie AJA.
BROWNIE AJA: The respondent sued the appellant for damages for negligence, in the Dust Diseases Tribunal of New South Wales. The respondent claimed that he had suffered personal injury as a result of his inhaling, in South Australia, on one or more of various occasions, asbestos particles that had emanated from asbestos products manufactured and/or distributed by the appellant. The appellant pleaded that the claim was time barred, by reference to the Limitation of Actions Act 1936 of South Australia (the Act), which contained the following provisions:
“36        Personal Injuries
(1)          All actions in which the damages claimed consist of or include damages in respect of personal injuries to any person, shall be commenced within three years after the cause of action accrued but not after.
(2)          In this section –
‘personal injuries’ include any disease and any impairment of a person’s physical or mental condition.
48          General power to extend periods of limitation
(1)          Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for -
(a)          instituting an action; or
(b)          doing any act, or taking any step in an action; or
(c)          doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2)          A court may exercise the powers conferred by this section in respect of any action that –
(a)          the court has jurisdiction to entertain; or
(b)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amaca Pty Ltd v Ridgway

Details

AGLC: Amaca Pty Ltd v Ridgway [2005] NSWCA 417
Case: [2005] NSWCA 417
Decision Date: 16 December 2005

CaseChat Overview and Summary

Amaca Pty Ltd appealed to the Full Court of the Supreme Court of South Australia against a decision of the Dust Diseases Tribunal. The dispute concerned the application of the *Limitation of Actions Act 1936* (SA) to a claim brought by the respondent, Mr. Ridgway, who had contracted a dust-related disease. The central issue was whether a failure to comply with section 48(4) of the Act operated to extinguish the respondent's cause of action.

The Court was required to determine whether the Tribunal had erred in law by failing to properly consider the effect of section 48(4) of the *Limitation of Actions Act 1936* (SA). Specifically, the appeal raised questions about the interpretation of this provision and its impact on the extinguishment of a cause of action where its requirements were not met. The Court also considered whether there were irreconcilable findings of fact made by the Tribunal that were not adequately explained.

The Full Court found that the Tribunal had made an error of law in its application of section 48(4). The Court reasoned that the Tribunal’s findings were inconsistent and lacked sufficient explanation, leading to a misapplication of the relevant limitation provisions. Consequently, the appeal was upheld, and the judgment and orders of the Dust Diseases Tribunal were set aside. The matter was remitted to the Tribunal for a rehearing, and Amaca Pty Ltd was ordered to pay the respondent's costs of the appeal, with a certificate granted under the *Suitors’ Fund Act 1951*.

Orders

Orders of the court

Appeal upheld. Judgment and orders of the Dust Diseases Tribunal set aside. Matter be remitted to the Tribunal for re-hearing. Respondent to pay Appellant’s costs of the appeal, but should have a certificate under the Suitors’ Fund Act 1951.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Amaca Pty Ltd v Ridgway [2005] NSWCA 417

Most Recent Citation

Abu-Dubat v Lucas [2019] QDC 251

Cases citing this decision · 2 of 2 shown

Jovelands Pty Ltd v Doyle
[2020] QMC 12 Para 4

…efendant who must plead it before it is effective and who may waive it; Spoor & Ors v Price & Ors [2019] QCA 297 at [38] [9] Amaca Pty Ltd v Ridgeway [2005] NSWCA 417. [10] Commonwealth of Australia v Mewett (1995) 59 FCR 391 per Lindgren J at 419…
Abu-Dubat v Lucas
[2019] QDC 251 Para 1

…y Ltd (1991) 174 CLR 1 at 44. See generally Cheshire & Fifoot’s Law of Contract, 9 th Australian Edition 2008, p 1173. [8] Amaca Pty Ltd v Ridgeway [2005] NSWCA 417. [9] Limitation of Actions Act 1974 s 35(3).…

View all 2 citing cases →

Cases cited in this decision · 14 of 14 shown

Illawarra Area Health Service v Dell
[2005] NSWCA 381 Para 9

…even if he was not aware of it: Cartledge v E Jopling & Sons Limited [1963] AC 758 at 772; see most recently Illawarra Area Health Service v Dell [2005] NSWCA 381 at [78]. That was no later than March 1999.…
Amaca Pty Ltd v New South Wales
[2003] HCA 44 Para 10

…since the respondent’s case would have to be dismissed, there is no utility in making such an order (although see Amaca Pty Ltd v New South Wales [2003] HCA 44, 199 ALR 596 at [22]).…
Van Den Heuval v Tucker No. Scciv-00-1212
[2002] SASC 361 Para 13

…s 48(4) of the Act, so as to add that endorsement. I see no reason to dissent from the reasoning in these cases. See also Van Den Heuval v Tucker [2002] SASC 361 at [2] and Suter v Development Assessment Commission [2003] SAERDC 47 at [14].…
Sinha v Health Care Complaints Tribunal
[2001] NSWCA 206 Para 6

…st Diseases Tribunal Act 1989, s 32. (See Beale v Government Insurance Office of NSW (1997) 48 NSWLR 206, Sinha v Health Care Complaints Commission [2001] NSWCA 206 at [52], and Mahon v Air New Zealand Ltd [1984] 1 AC 808 at 821.)…
Woolworths (SA) Pty Ltd v Cauchi
[2001] SASC 48 Para 13

…Chapman v Luminis Pty Ltd [1998] FCA 1084 at 12, in Reid v Agco Australia Ltd [2000] VSC 363 at [37] – [53] and in Woolworths (SA) Pty Ltd v Cauchi [2001] SASC 48 at [62] – [63], the matter was taken further, in that it was held that the respective plaintiffs might obtain leave to amend the initiating process, wh…
Reid v Agco Australia Ltd
[2000] VSC 363 Para 13

…Further, in Chapman v Luminis Pty Ltd [1998] FCA 1084 at 12, in Reid v Agco Australia Ltd [2000] VSC 363 at [37] – [53] and in Woolworths (SA) Pty Ltd v Cauchi [2001] SASC 48 at [62] – [63], the matter was taken further, in that it was held that the respective plaintiffs might obtain leave to amend the initiating…
John Pfeiffer Pty Ltd v Rogerson
[2000] HCA 36 Para 10

…the appellant is accepted, to the effect that the South Australian Limitations legislation was substantive (see John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503), and that the respondent’s omission to comply with the provisions of s 48(4) means that since the respondent’s case would have to be dismissed, ther…
Chapman, Thomas Lincoln v Luminis Pty Ltd
[1998] FCA 1084 Para 13

…Further, in Chapman v Luminis Pty Ltd [1998] FCA 1084 at 12, in Reid v Agco Australia Ltd [2000] VSC 363 at [37] – [53] and in Woolworths (SA) Pty Ltd v Cauchi [2001] SASC 48 at [62] – [63], the matter was taken further, in that it was held that the respective plaintiffs might obtain leave to amend the initiating…
Australian Securities Commission v Marlborough Gold Mines Ltd
[1993] HCA 15 Para 12

…By parity of reasoning with what was said in Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15, 67 ALJR 517 at [9], this Court should follow the decision of the Full Court of the Supreme Court of South Australia, when considering the proper meaning of a single statute, unless convinced…
John Pfeiffer Pty Limited v Rogerson
[2000] HCA 3621 Para 10

…aring, unless a further submission of the appellant is accepted, to the effect that the South Australian Limitations legislation was substantive (see John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503), and that the respondent’s omission to comply with the provisions of s 48(4) means that since the respondent’s case would have to be dis…
Suter v Development Assessment Commission
[2003] SAERDC 47 Para 13

…dissent from the reasoning in these cases. See also Van Den Heuval v Tucker [2002] SASC 361 at [2] and Suter v Development Assessment Commission [2003] SAERDC 47 at [14].…
[1963] AC 758
[1963] AC 758 Para 9

…first suffered measurable loss or damage, meaning beyond what is negligible, even if he was not aware of it: Cartledge v E Jopling & Sons Limited [1963] AC 758 at 772; see most recently Illawarra Area Health Service v Dell [2005] NSWCA 381 at [78]. That was no later than March 1999.…
[1984] 1 AC 808
[1984] 1 AC 808 Para 6

…nt Insurance Office of NSW (1997) 48 NSWLR 206, Sinha v Health Care Complaints Commission [2001] NSWCA 206 at [52], and Mahon v Air New Zealand Ltd [1984] 1 AC 808 at 821.)…
Beale v Government Insurance Office of NSW
(1997) 48 NSWLR 430 Para 6

…our, and that the inconsistencies are not explained, so that an appeal on a point of law lies under the Dust Diseases Tribunal Act 1989, s 32. (See Beale v Government Insurance Office of NSW (1997) 48 NSWLR 206, Sinha v Health Care Complaints Commission [2001] NSWCA 206 at [52], and Mahon v Air New Zealand Ltd [1984] 1 AC 808 at 821.)…

Legislation cited in this decision · 3

Dust Diseases Tribunal Act 1989 (NSW)
32 2 mentions (from Para 6)
Suitors’ Fund Act 1951 (NSW)
2 mentions (from Para 14)
Limitation of Actions Act 1936 (SA)
1 mention (from Para 3)