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Basile v Pugh

Basile v Pugh

Case [2024] VSCA 280 22 November 2024

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0025

ANTONIO BASILE	Applicant
v
LESLIE PUGH	Respondent

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JUDGES:	MACAULAY JA, GORTON and J FORREST AJJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2024
DATE OF JUDGMENT:	22 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 280
JUDGMENT APPEALED FROM:	[2024] VCC 39 (Judge Purcell)

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LIMITATION OF ACTIONS – Motor vehicle accident in 1998 – Application for leave to appeal refusal to grant extension of time to commence proceeding to recover damages –Applicant obliged to establish House v The King error – Parties assert different versions of how accident happened – Contemporaneous documents support applicant’s version but their accuracy contested – Independent witness now deceased, other documents now not available – Whether judge erred in deciding ‘acceptably fair trial no longer possible’ – Whether open to judge to conclude that applicant should have acted sooner – Whether judge erred in saying ‘clock didn’t stop ticking’ on filing of originating motion – No realistic prospect of establishing that judge’s discretion miscarried – Application for leave to appeal refused.

Limitation of Actions Act 1958, ss 5, 23A; Transport Accident Act 1986.

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Prince Alfred
College Inc v ADC (2016) 258 CLR 134; Waldron v O’Callaghan [2024] VSCA 196, applied; House v The King (1936) 55 CLR 499; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; Warren v Coombes (1979) 142 CLR 531; Fox v Percy (2003) 214 CLR 118; Lee v Lee (2019) 266 CLR 129; Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; Lithgow City Council v Jackson (2011) 244 CLR 352; Willmot v State of Queensland [2024] HCA 42; Moore v Goldhagen [2024] VSCA 25; Hunt v Holcombe [2018] VSCA 248; Griffiths v Nillumbik Shire Council [2022] VSCA 212, referred to.

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Counsel
Applicant:		Mr A Clements KC with Mr G Taylor
Respondent:		Mr J Ruskin KC with Mr D Oldfield
Solicitors
Applicant:	Arnold Thomas & Becker Pty Ltd
Respondent:	Transport Accident Commission

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TABLE OF CONTENTS

Introduction

The nature of the proposed appeal to this Court

Background

The reasons of the County Court judge

The alleged errors of law on the part of the County Court judge

The finding that an acceptably fair trial is no longer possible

Was it open to the judge below to conclude that Mr Basile should have acted sooner?

Did the ‘clock stop ticking’ when Mr Basile filed an originating motion in May 2021?

Disposition

MACAULAY JA
GORTON AJA
J FORREST AJA:

Introduction

On 6 November 1998, Mr Antonio Basile, the applicant, was riding a motor bike when he injured his lower left and right legs in a collision with a car driven by Mr Leslie Pugh, the respondent. The police attended and prepared an incident report. The incident report referred to…

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 Basile v Pugh

Details

AGLC: Basile v Pugh [2024] VSCA 280
Case: [2024] VSCA 280
Decision Date: 22 November 2024

CaseChat Overview and Summary

Basile v Pugh involved a dispute concerning a motor vehicle accident that occurred in 1998, with the plaintiff seeking to recover damages against the defendant. The matter came before the court as an application for leave to appeal against the refusal to grant an extension of time to commence proceedings. The central issue was whether the court had correctly exercised its discretion under the Limitation of Actions Act 1958 when it determined that an acceptably fair trial was no longer possible due to the delay in filing the originating motion.

The court had to decide whether the judge was correct in concluding that the plaintiff should have acted sooner to initiate the proceedings. Additionally, it needed to assess whether the judge had erred in stating that the limitation period did not cease to run upon the filing of the originating motion. The court held that there was no realistic prospect of establishing that the judge’s discretion had miscarried. The application for leave to appeal was refused as the applicant could not demonstrate a House v The King error, given the contested accuracy of contemporaneous documents and the unavailability of additional evidence.

Ultimately, the court found that the applicant had failed to provide sufficient grounds to support the appeal. The reasoning focused on the applicant’s inability to establish a significant error in the judge's application of the relevant legal principles. Consequently, the appeal was dismissed, and the limitation period remained a bar to the plaintiff's claim.

Orders