Best v Rosamond

[2020] NSWCA 90

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Best v Rosamond [2020] NSWCA 90
Hearing dates:	19 March 2020
Date of orders:	12 May 2020
Decision date:	12 May 2020
Before:	Bell P at [1]; Leeming JA at [2]; Payne JA at [3]
Decision:	(1)   Appeal dismissed; (2)   Appellant to pay the costs of the respondent.
Catchwords:	LIMITATION OF ACTIONS – discoverability – personal injury – knowledge of seriousness that warrants bringing a cause of action – when plaintiff “ought to know” fact that injury was sufficiently serious to justify the bringing of an action on the cause of action
Legislation Cited:	Civil Liability Act 2002 (NSW) Limitation Act 1969 (NSW), ss 50C, 50D Uniform Civil Procedure Rules 2005 (NSW), rr 42.35, 51.36
Cases Cited:	Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 Ditchburn v Seltzam Ltd (1989) 17 NSWLR 697 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Frizelle v Bauer [2009] NSWCA 239 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 State of New South Wales v Gillett [2012] NSWCA 83
Category:	Principal judgment
Parties:	Jeremy Best (Appellant) Geoffrey Rosamond (Respondent)
Representation:	Counsel: K Andrews (Appellant) J-J Loofs SC with S Walsh (Respondent) Solicitors: Wyatts Lawyers and Advisors (Appellant) Burridge & Legg (Respondent)
File Number(s):	2019/240496
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2019] NSWDC 344 Date of Decision: 24 July 2019 Before: Abadee DCJ File Number(s): 2018/253490

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Mr Best, was assaulted by his then close friend Mr Rosamond, the respondent, following a long afternoon and evening of drinking at the respondent’s Mosman home on 9 January 2015. Proceedings in the District Court seeking damages for assault were commenced by the appellant on 17 August 2018, more than three years after the assault. The primary judge found that the case was time-barred, because it was commenced more than three years after the cause of action was “discoverable” within the meaning of ss 50C and 50D of the Limitation Act 1969 (NSW).

The issue in the appeal was whether, acting reasonably, the appellant’s cause of action was discoverable within the meaning of ss 50C and 50D before 17 August 2015.

The Court held, granting leave but dismissing the appeal:

Per Payne JA, (Bell P and Leeming JA agreeing):

1. It was common ground that the primary judge applied the correct legal test in addressing ss 50C and 50D of the Limitation Act. The appellant’s complaints were essentially complaints made about findings of fact. Those findings have not been shown to be incorrect. The primary judge, having heard all of the evidence, came to the view that the steps actually taken by the appellant were inadequate and that reasonable steps ought to have been taken by the appellant to obtain medical and legal advice prior…