CITATION: ANTONINI v SRA (No 2) [2006] NSWDC 133 HEARING DATE(S): 28.11.06 EX TEMPORE JUDGMENT DATE: 11/28/2006 JURISDICTION: Civil JUDGMENT OF: Sidis DCJ DECISION: 1. The defendant's motion is dismissed; 2. The plaintiff is to pay the costs of the proceedings on 25 October 2006; 3. The defendant is to pay the plaintiff's costs of today's proceedings; 4. The affidavit materials and the extracts provided are returned. CATCHWORDS: DATE OF DISCOVERABILITY LEGISLATION CITED: Limitation Act 1969 (NSW)
Motor Accidents Compensation Act 1999PARTIES: Helen Antonini
State Rail AuthorityFILE NUMBER(S): Newcastle 376/06 COUNSEL: Plaintiff-Respondent - C A W Hart
Defendant-Applicant - K W AndrewsSOLICITORS: Bale Boshev
Gillis Delaney Lawyers
JUDGMENT
HER HONOUR
1 Mrs Antonini has claimed against the State Rail Authority in respect of an incident that occurred on 30 July 2003. Her statement of claim was filed on 11 August 2006. The defendant, by application, seeks an order dismissing the proceedings on the basis that they were commenced outside the time limit imposed by section 50C of the Limitation Act 1969.
2 I initially heard argument on 25 October 2006 as to which of the Limitation Act or the Motor Accidents Compensation Act 1999 was to be applied in determining the appropriate limitation period. On 15 November, I delivered reasons for accepting the propositions of the State Rail Authority that the Limitation Act applied.
3 The parties returned today for further argument concerning the date of discoverability in order to determine when the three year limit imposed by section 50C of the Act commenced.
4 There was today before me further affidavit evidence of the plaintiff, Mrs Antonini, dated 17 November 2006; and of her solicitor, Mr Schipp, of 17 November 2006, and 27 November 2006. I was also provided, for the purposes of assistance, with copies of section 6 of the Law of Negligence Review which deals with limitation of actions, and an extract from the Hansard record of debate of the second reading speech on 19 November 2002 concerning the Civil Liability Amendment (Personal Responsibility) Bill.
5 The further evidence provided indicated that Mrs Antonini was taken to hospital on 31 July 2003 and that she remained at the John Hunter Hospital and then the Royal Newcastle Hospital until 22 August 2003. Her evidence was that she first consulted a solicitor in October 2003, although the material before the Court suggests that her first contact may have been in September 2003.
6 Her evidence was that she was told that the solicitor consulted could not advise whether the claim was sustainable until medical reports had been received and paid for. She stated that she was advised in May 2004 that she had a good claim.
7 In cross-examination she agreed that she was aware on the date of the accident, that she had been injured. She also stated that she was aware on that date that, as far as she was concerned, the State Rail Authority was at fault.
8 It was apparent that…
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- Case
- [2006] NSWDC 133
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the date of discoverability of certain documents, which were potentially exculpatory, was a factor that should have been considered by the tribunal in assessing the disciplinary action. Dr Antonini argued that the tribunal should have taken into account the late discoverability of this evidence, which could have impacted the fairness of the disciplinary process. The defendant, on the other hand, maintained that the date of discoverability was not a relevant consideration in the disciplinary process.
The court found that the date of discoverability was not a factor that the tribunal was required to consider. It held that the tribunal's decision was not flawed by failing to take into account the late discovery of evidence. The court reasoned that the tribunal had the discretion to determine what evidence was relevant and how it should be assessed, and that the date of discoverability did not affect the fairness of the proceedings. Consequently, the court dismissed Dr Antonini's application for judicial review and ordered that the defendant's motion be dismissed. The plaintiff was also ordered to pay the costs of the proceedings on 25 October 2006, while the defendant was to pay the plaintiff's costs of the current proceedings. Additionally, the court ordered that the affidavit materials and the extracts provided were to be returned.
Orders
Orders of the court
1. The defendant's motion is dismissed; 2. The plaintiff is to pay the costs of the proceedings on 25 October 2006; 3. The defendant is to pay the plaintiff's costs of today's proceedings; 4. The affidavit materials and the extracts provided are returned.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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