Benjamin Luke Brown v Richard Haureliuk - [2011] ACTSC 9

BENJAMIN LUKE BROWN v RICHARD HAURELIUK
[2011] ACTSC 9 (31 January 2011)

LIMITATION OF ACTIONS – suspension of limitation period as a result of disability – plaintiff substantially impeded in the management of his affairs in relation to cause of action – lacked capacity to make rational decisions – declaration that limitation period suspended for duration of disability

PRACTICE AND PROCEDURE – notice of claim – failure to comply – whether reasonable excuse – extent of prejudice to defendant – whether court should exercise discretion to allow plaintiff to proceed with claim

Civil Law (Wrongs) Act 2002 (ACT)
Court Procedures Rules 2006 (ACT)
Limitation Act 1969 (NSW)
Limitation Act 1985 (ACT)

A v D (1995) 127FLR 372
Al-Rawahi v Niazi (2006) 203FLR 94
Arnold v Commonwealth & Anor (Miles CJ, unreported, ACT Supreme Court), 30 November 1995)
Doyle v Gillespie [2010] ACTSC 21
Goodwin v Smith (Miles CJ, unreported, ACT Supreme Court, 10 December 1990)
McGregor v Franklin (2006) 201FLR 303
State of New South Wales v Harlum [2007] NSWCA 120

No. SC 547 of 2009

Judge: Master Harper
Supreme Court of the ACT

Date: 31 January 2011

IN THE SUPREME COURT OF THE       )
  )          No. SC 547 of 2009
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:BENJAMIN LUKE BROWN
Plaintiff

AND:RICHARD HAURELIUK
Defendant

ORDER

Judge:  Master Harper
Date:  31 January 2011
Place:  Canberra

THE COURT DECLARES THAT:

the running of the limitation period was suspended for the duration of the plaintiff’s disability between 8 June 2008 and 9 January 2009.

the action was commenced within the time prescribed by the Limitation Act 1985 (ACT).

THE COURT ORDERS THAT:

the costs of the plaintiff’s application of 24 September 2010 be costs in the cause.

the plaintiff be authorised to proceed further with the action despite his failure to give a complying notice of claim under the Civil Law (Wrongs) Act 2002.

the plaintiff pay the defendant’s costs of the application of 22 December 2009.

those costs not be recoverable until final orders are made in the action.

There are two applications before the court, brought by the plaintiff in this action for damages for personal injury arising out of a motor vehicle collision. The plaintiff was a passenger in a car which was struck from behind by a car owned by the defendant at Monash on 30 November 2005.

The present action was commenced on 9 June 2009.

On 8 October 2009 the defendant filed a conditional notice of intention to respond. Making the notice conditional was misconceived: there is no question that the court has jurisdiction to hear and determine the action. In the event, the defendant did not make any application challenging the jurisdiction of the court, and the notice became unconditional by operation of rule 111(4) of the Court Procedures Rules 2006 (ACT).

The defendant delivered a defence on 28 May 2010, admitting breach of duty of care but putting the plaintiff to proof as to damages, and, relevantly for the present applications, asserting that the…

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.

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Details

Case: [2011] ACTSC 9
Decision Date: 31 January 2011

CaseChat Overview and Summary

The case of Benjamin Luke Brown v Richard Haureliuk involved a dispute concerning the limitation period for bringing a claim. The plaintiff, Mr Brown, sought a declaration that the limitation period for his cause of action was suspended due to his disability, which substantially impeded his ability to manage his affairs in relation to the claim. The defendant, Mr Haureliuk, argued that the plaintiff had failed to comply with procedural requirements by not lodging a notice of claim within the statutory time frame. The court was required to determine whether Mr Brown's disability justified the suspension of the limitation period and whether the plaintiff's failure to comply with procedural requirements could be excused.

The court considered whether Mr Brown's disability met the threshold for suspending the limitation period, as established in prior case law. The plaintiff's disability had substantially impeded his ability to manage his affairs, and he lacked the capacity to make rational decisions. The court found that the limitation period should be suspended for the duration of the disability. The court also examined whether Mr Brown's failure to comply with procedural requirements could be excused, given the reasonable excuse provided by his disability. The court concluded that the defendant had not suffered significant prejudice due to the late notice of claim, and therefore, the plaintiff should be permitted to proceed with the claim.

The court ordered that the limitation period for Mr Brown's cause of action was suspended for the duration of his disability. The court also exercised its discretion to allow the plaintiff to proceed with the claim despite the failure to comply with procedural requirements, given the reasonable excuse provided by the plaintiff's disability. The court emphasised the importance of considering the circumstances of each case when determining whether to excuse procedural failures and the need to balance the interests of both parties.

Orders