Bucic v Arnej Pty Ltd - [2017] VSC 508

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2015 05539

MARIN BUCIC	Plaintiff
v
ARNEJ PTY LTD	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2017
DATE OF RULING:	7 September 2017
CASE MAY BE CITED AS:	Bucic v Arnej Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VSC 508

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PRACTICE AND PROCEDURE – Application for an extension of time to issue a proceeding under Part IIA of the Wrongs Act 1958 – Whether the plaintiff received advice on the limitation period for his claim – Whether the plaintiff’s former solicitors were negligent in advising the plaintiff – Whether just and reasonable to extend time – Whether the Defendant would suffer any material prejudice – Tsiadis v Patterson (2001) 4 VR 114, Prince Alfred College Inc v ADC (2016) 258 CLR 134, Davies v Nilsen [2015] VSC 584 and Mackenzie v Positive Concepts Pty Ltd & Anor [2016] VSC 259 relied upon – Limitation of Actions Act 1958, ss 27K and 27L.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Brett QC with Mr D Dealehr	Arnold Thomas & Becker
For the Defendant	Ms D Costaras	Moray & Agnew
For C & N Scaffolding Hire Pty Ltd	Mr R Harper	Meridian Lawyers
For Mr Paul Simon	Mr P Over	DLA Piper

TABLE OF CONTENTS

Background......................................................................................................................................... 1

Did Mr Bucic receive advice on the limitation period prior to its expiry?.............................. 5

Mr Bucic’s evidence...................................................................................................................... 5
Mr Simon’s evidence.................................................................................................................... 8
Evidentiary findings................................................................................................................... 13

Does Mr Bucic have a claim in negligence against Mr Simon?............................................... 16

Will Arnej Pty Ltd be so prejudiced by the effluxion of time that a trial will be unfair?.. 18

Should time be extended?.............................................................................................................. 19

Conclusion......................................................................................................................................... 21

HER HONOUR:

Almost ten years ago, Mr Marin Bucic, a self-employed brick cleaner, was working on a residential building construction site in Keilor. He says he fell from unguarded scaffolding and was seriously injured. Mr Bucic’s campaign for compensation since may be characterised as a long dusty road with multiple detours. There have been two workers’ compensation claims, four previous proceedings (in the Magistrates’, County and Supreme Courts), and now this proceeding. This proceeding is commenced almost 5 years out of time. This ruling concerns whether Mr Bucic should be given an extension of time pursuant to ss 27K and 27L of the Limitation of Actions Act 1958 (‘the LAA’).

Mr Bucic brings this proceeding against Arnej Pty Ltd on the basis of negligence and seeks damages. He relies upon Part IIA of the Wrongs Act 1958 (‘the Wrongs Act’).[1] Arnej Pty Ltd is a builder. It hired Mr Bucic as a brick cleaner to work on the site. Arnej Pty Ltd denies the negligence claim and joins C & N Scaffolding Hire Pty Ltd (‘C & N’), a contractor it engaged to construct scaffolding at the construction site. C & N denies Arnej Pty Ltd is entitled to contribution or indemnity…

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 Bucic v Arnej Pty Ltd

Details

AGLC: Bucic v Arnej Pty Ltd [2017] VSC 508
Case: [2017] VSC 508
Decision Date: 7 September 2017

CaseChat Overview and Summary

The plaintiff, Mr. Bucic, sought an extension of time to commence proceedings against the defendant, Arnej Pty Ltd, under Part IIA of the Wrongs Act 1958. The case was heard in the County Court of Victoria. Mr. Bucic's claim related to alleged professional negligence by the defendant's former solicitors, who had provided advice regarding the limitation period for his claim. The central issue before the court was whether it was just and reasonable to extend the time for Mr. Bucic to issue his proceeding, given that the limitation period had expired.

The court considered whether Mr. Bucic had received advice on the limitation period for his claim and whether his former solicitors were negligent in their advice. It also evaluated whether the extension of time would cause any material prejudice to the defendant and assessed the relevant statutory provisions under the Limitation of Actions Act 1958, specifically sections 27K and 27L. The court referred to several precedents, including Tsiadis v Patterson, Prince Alfred College Inc v ADC, Davies v Nilsen, and Mackenzie v Positive Concepts Pty Ltd & Anor, to assist in its determination.

The County Court found that Mr. Bucic had not received proper advice from his former solicitors, which led to the delay in lodging his claim. The court concluded that it was just and reasonable to extend the time for Mr. Bucic to issue his proceeding, considering the circumstances of the case. The court also determined that the defendant would not suffer any material prejudice if the extension was granted. Therefore, the application for an extension of time was successful.

The court ordered that Mr. Bucic be granted an extension of time to issue his proceeding against the defendant, Arnej Pty Ltd, under Part IIA of the Wrongs Act 1958.

Orders