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Berriman v Cricket Australia

Berriman v Cricket Australia

Case [2007] VSC 365 28 September 2007

Limitation Periods

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6015 of 2007

MATTHEW BERRIMAN	Plaintiff
v
CRICKET AUSTRALIA	Defendant

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2007
DATE OF JUDGMENT:	28 September 2007
CASE MAY BE CITED AS:	Berriman v Cricket Australia
MEDIUM NEUTRAL CITATION:	[2007] VSC 365

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LIMITATION OF ACTIONS – Torts – postponement of the bar - Section 36 and section 48 of Limitations of Actions Act 1936 (S.A.) – material fact under s 48(3) of Limitation of Actions Act 1936 (S.A.) - Law Reform (Ipp Recommendations) Act 2004 (S.A.) – prospective operation of amendments to the Limitations of Actions Act 1936 (S.A.) – exercise of discretion

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R H Stanley	Richard & Bennison
For the Defendant	Mr M W Richardson	Browne & Co

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TABLE OF CONTENTS

Proceedings......................................................................................................................................... 2

The issues............................................................................................................................................ 2

The factual matrix.............................................................................................................................. 3

Relevant statutory provisions.......................................................................................................... 4

Victorian Law............................................................................................................................ 4
South Australian Law................................................................................................................ 4

Do the amending provisions of the Ipp Recommendations Act apply to this case?............ 7

The first condition under s 48: ascertainment of a fact material to the plaintiff’s case: ss(3)(b)(i).............................................................................................................................................................. 11

Analysis................................................................................................................................... 13

The second condition: the exercise of discretion – is it just to grant an extension?.......... 16

Summary............................................................................................................................................ 19

HIS HONOUR:

Proceedings

On the 4^th of May 2007 the plaintiff issued proceedings in this Court against the defendant for damages for personal injuries. The claim was based upon a significant injury to the right shoulder sustained by the plaintiff on the 13^th of April 2001 at the Commonwealth Bank Cricket Academy conducted at Del Monte, on Henley Beach in Adelaide.

In the original defence filed on the 13^th of June 2007 the defendant asserted that the plaintiff’s claim was barred pursuant to s 36(1) of the Limitation of Actions Act 1936 of South Australia (“the Limitation Act”). It further contended that no extension of time could be granted by reason of s 48(3)(b) of the Act.[1]
[1]The amended defence subsequently filed did not affect this part of the defence.

On the 29^th of August 2007 Master Kings ordered that an application for leave by the plaintiff to commence proceedings pursuant to s 48(1) and (2) of the Limitation Act should be heard by a judge of this Court.

In support of that application the plaintiff swore an affidavit on the 20^th of July 2007, the terms of which I shall advert to later.

The issues

The issues that arose for determination were as follows:

(a)Do the amendments effected by the Law Reform (Ipp Recommendations) Act 2004 (SA) (“the Ipp Recommendations Act”) to s 48 of the Limitation Act apply to this application.
(b)Whether the plaintiff has satisfied the pre-condition stipulated by s 48(3)(b) of the Limitation Act by establishing that a fact material to his case was not ascertained by him until a point of time during the 12 months prior to the issue…

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 Berriman v Cricket Australia

Details

AGLC: Berriman v Cricket Australia [2007] VSC 365
Case: [2007] VSC 365
Decision Date: 28 September 2007

CaseChat Overview and Summary

The plaintiff, Mr. Berriman, sued Cricket Australia, alleging negligence in his management of injuries he sustained during a cricket match. The dispute centred around whether the statutory limitation period for initiating legal proceedings was extended under the provisions of the Limitations of Actions Act 1936 (S.A.), and whether the subsequent amendments to this act applied retroactively. The matter was heard in the Supreme Court of South Australia. The central legal issues for the court to determine were whether the statutory limitations period could be extended under section 48 of the Limitations of Actions Act 1936 (S.A.), and whether the prospective operation of amendments to the act should be applied to the plaintiff's claim.

The court examined the statutory provisions and the applicable legal principles, focusing on the interpretation of section 48 of the act and its interaction with the prospective operation of legislative amendments. The court concluded that the statutory limitation period could indeed be extended where a material fact, as defined by section 48(3), was not known or reasonably could not be known by the plaintiff at the time the cause of action accrued. The court held that the amendments to the act did not apply retroactively, thus preserving the original limitation period for Mr. Berriman's claim. Given these findings, the court determined that Mr. Berriman's claim was statute-barred.

As a result, the court dismissed the plaintiff's claim on the basis that the statutory limitation period had expired, and the legislative amendments did not operate retrospectively. The orders of the court reflect this decision, with the plaintiff's claim being dismissed in its entirety.

Orders