Burgess v Sanbray Pty Ltd - [2017] QDC 132

DISTRICT COURT OF QUEENSLAND

CITATION:

Burgess v Sanbray Pty Ltd [2017] QDC 132

PARTIES:

BENJAMIN FRANK BURGESS
(applicant)

v

SANBRAY PTY LTD
(respondent)

FILE NO/S:

BD 668/2017

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

24 March 2017

JUDGE:

McGill SC DCJ

ORDER:

Limitation period extended so that it expires on 13 January 2017.

CATCHWORDS:

LIMITATION OF ACTIONS – Personal injuries – extension of time – whether material facts decisive – whether within means of knowledge of applicant – discretion.

Limitations of Actions Act 1974 ss 30(1)(b); 31(2).

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 – cited.
Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306 – cited.
Castillon v P&O Ports Ltd [2008] 2 Qd R 219 – cited.
Greenhalgh v Bacas Training Ltd [2007] QCA 327 – applied.
Hargans v Kemenes [2011] QCA 251 – cited.
Healy v Femdale Pty Ltd [1993] QCA 210 – applied.
HWC v Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 – applied.
Maguire v Plumbing Industry Group Training Scheme Inc & Anor [2001] QCA 248 – cited.
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 – cited.
NF v State of Queensland [2005] QCA 110 – applied.
Pizer v Ansett Australia Ltd [1998] QCA 298 – cited.
Prince Alfred College Inc v ADC (2016) 90 ALJR 1085 – cited.
Spain v Dipompo Jacs Constructions Pty Ltd [2009] QCA 323 – distinguished.
State of Queensland v Stephenson (2006) 226 CLR 197 – cited.
Thompson v WorkCover Queensland [2011] QSC 197 – cited.
Watters v Queensland Rail [2001] 1 Qd R 448 – cited.

COUNSEL:

J.O. McClymont for the applicant

S.P. Gray for the respondent

SOLICITORS:

Shine Lawyers for applicant

BT Lawyers for the respondent

This is an application seeking an extension of the limitation period under the Limitation of Actions Act 1974 (“the Act”) in respect of an injury allegedly suffered by the applicant on 20 October 2010as a result of the negligence of the respondent. The limitation period expired three years later, on 20 October 2013. A Notice of Claim under the Workers’ Compensation and Rehabilitation Act 2003 (“the WCR Act”) was given on 23 November 2016, and any noncompliance was waived on 25 November 2016. Accordingly, for the purposes of the WCR Act, what matters is whether the limitation period is extended so that it expires after 25 November 2016.

The respondent conceded for the purposes of this application that there was evidence to establish the right of action against it apart from a defence founded on the expiration of the applicable period of limitation. The applicant’s claim is within the monetary limit.[1] Accordingly, the question is whether a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after 20 October 2012, and that situation continued until after…

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: [2017] QDC 132
Decision Date: 24 May 2017

CaseChat Overview and Summary

The matter before the court involved a personal injury claim brought by Burgess against Sanbray Pty Ltd. The primary dispute centred on whether the statutory limitation period for filing the claim should be extended, with Burgess arguing that the extension was warranted due to a lack of knowledge about the material facts that formed the basis of the claim. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the material facts decisive of the claim were unknown and could not have been known by the applicant within the limitation period and whether the applicant had acted with due diligence once those facts were known. The court had to determine if the application for an extension of the limitation period was made within a reasonable time after the applicant became aware of the material facts, and if the extension would be in the interests of justice.

The court examined the principles of equity and fairness, considering the balance between the statutory limitation period and the applicant's right to access the courts. The court found that the material facts were indeed unknown to the applicant and could not have been known within the limitation period. Furthermore, the applicant had acted with due diligence once the facts were known. The court concluded that it was in the interests of justice to extend the limitation period, allowing the claim to proceed. The limitation period was therefore extended so that it expired on 13 January 2017.

Orders

Orders of the court

Limitation period extended so that it expires on 13 January 2017.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Burgess v Sanbray Pty Ltd [2017] QDC 132
PARTIES:	BENJAMIN FRANK BURGESS (applicant) v SANBRAY PTY LTD (respondent)
FILE NO/S:	BD 668/2017
DIVISION:
PROCEEDING:	Originating application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	24 May 2017
DELIVERED AT:	Brisbane
HEARING DATE:	24 March 2017
JUDGE:	McGill SC DCJ
ORDER:	Limitation period extended so that it expires on 13 January 2017.
CATCHWORDS:	LIMITATION OF ACTIONS – Personal injuries – extension of time – whether material facts decisive – whether within means of knowledge of applicant – discretion. Limitations of Actions Act 1974 ss 30(1)(b); 31(2). Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 – cited. Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306 – cited. Castillon v P&O Ports Ltd [2008] 2 Qd R 219 – cited. Greenhalgh v Bacas Training Ltd [2007] QCA 327 – applied. Hargans v Kemenes [2011] QCA 251 – cited. Healy v Femdale Pty Ltd [1993] QCA 210 – applied. HWC v Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 – applied. Maguire v Plumbing Industry Group Training Scheme Inc & Anor [2001] QCA 248 – cited. Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 – cited. NF v State of Queensland [2005] QCA 110 – applied. Pizer v Ansett Australia Ltd [1998] QCA 298 – cited. Prince Alfred College Inc v ADC (2016) 90 ALJR 1085 – cited. Spain v Dipompo Jacs Constructions Pty Ltd [2009] QCA 323 – distinguished. State of Queensland v Stephenson (2006) 226 CLR 197 – cited. Thompson v WorkCover Queensland [2011] QSC 197 – cited. Watters v Queensland Rail [2001] 1 Qd R 448 – cited.
COUNSEL:	J.O. McClymont for the applicant S.P. Gray for the respondent
SOLICITORS:	Shine Lawyers for applicant BT Lawyers for the respondent