Caboche v England - [2000] HCATrans 112

1IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A60 of 1997

B e t w e e n -
DELORES JEAN CABOCHE
Applicant
and
RICHARD ANTHONY FOUNTAYNE ENGLAND (as liquidator of SOUTHERN EQUITIES CORPORATION LIMITED (In Liquidation))

Respondent

Application to reopen the application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 24 MARCH 2000, AT 9.33 AM

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR A.R. HARRIS, QC, for the applicant. (instructed by Cosoff Cudmore and Partners)

MR T.A. GRAY, QC: May it please the Court, I appear with my learned friend, MR M.C.J. HOFFMAN, for the respondent. (instructed by Fisher Jeffries)

GLEESON CJ: Yes, Mr Jackson.

MR JACKSON: Your Honours, is this an application to reopen one aspect of the application for special leave to appeal which had been refused by the Court on 12 August 1999. I do not know if your Honours have an outline on the notice of motion. Your Honours, if I may say so, in relation to that, we had not thought it necessary to have such a document relying on the original summary of argument and the affidavit in support of the application. But if we are wrong, your Honours, this is the argument we would rely on.

Your Honours, the aspect on which reopening is sought is referred to in grounds 4 and 5 of the application for special leave, which your Honours will see in the application book at page 232. That is the original application book. The Court refused special leave on those grounds because it was said the case was not a suitable vehicle to test the proposition. Your Honours will see that in the supplementary application book at page 5, paragraph 8, and the transcript of the proceedings is at page 12. Your Honours will see what your Honour the Chief Justice said in the penultimate paragraph on that page. Now, your Honours, what had occurred was, as your Honours will see, at page 10 was that Justice Gummow drew the attention of counsel in appearing for the applicant to these grounds, and then the argument on that commences in the penultimate paragraph on page 10.

Now when my learned friend was called on, your Honours will see on page 11, your Honour the Chief Justice asked:

what do you say about that last point we say concerning purpose?

And my learned friend said:

the points we make are quite short. If I could start this way: the examinations of Ms Caboche ‑ ‑ ‑

KIRBY J: Now, where are you on page 11?

MR JACKSON: I am sorry, your Honour, I am about point 4, Mr Gray.

KIRBY J: Yes, I see.

MR JACKSON:

The points we make are quite short. If I could start this way: the examinations of Ms Caboche are completed – they have…

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 Caboche v England

Details

AGLC: Caboche v England [2000] HCATrans 112
Case: [2000] HCATrans 112
Decision Date

CaseChat Overview and Summary

In *Caboche v England*, the High Court of Australia considered a dispute between the appellant, Caboche, and the respondent, England, concerning the interpretation and application of the *Limitation Act 1969* (NSW). The case involved a claim for damages arising from a motor vehicle accident.

The central legal issue before the High Court was whether the appellant's claim was statute-barred by the *Limitation Act 1969* (NSW). Specifically, the court had to determine the correct date from which the limitation period commenced to run, particularly in circumstances where the full extent of the appellant's injuries was not immediately apparent.

The High Court analysed the provisions of the *Limitation Act 1969* (NSW) concerning the commencement of the limitation period for personal injury claims. The court affirmed the principle that the limitation period generally begins to run from the date of the cause of action, which in personal injury cases is typically the date of the injury. However, the court also considered the application of the discoverability principle, which can postpone the commencement of the limitation period until the plaintiff knew or ought to have known of the injury and its cause. The court ultimately found that the appellant's claim was indeed statute-barred.

The High Court dismissed the appeal.

Orders