Case v Colchester GR P/L - [2001] NSWSC 528

CITATION: Case v Colchester GR P/L [2001] NSWSC 528

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 10296/2001

HEARING DATE(S): 17 May 2001

JUDGMENT DATE:
27 June 2001

PARTIES :

Maryanne Case
(Plaintiff)
Colchester GR Pty Limited
(Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr D Wilson
(Plaintiff)
Mr D Brogan
(Defendant)

SOLICITORS:
Marsdens
(Plaintiff)
Bartier Perry
(Defendant)

CATCHWORDS: Extension of limitation period - s 151D WCA

LEGISLATION CITED: Workers Compensation Act 1987

CASES CITED: Salido v Nominal Defendant (1993) 32 NSWLR 524
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR; 139 ALR 1
Holt v Wynter [2000] NSWCA 143; (1999-2000) 49 NSWLR 128
Seib v Morton [2000] NSWCA 139, 26 June 2000

DECISION: (1) Leave for the plaintiff to commence court proceedings in respect of injuries suffered as a result of an accident which occurred on 15 November 1997 is refused; (2) The summons is dismissed; (3) The plaintiff is to pay the defendant's costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 27 JUNE 2001

10296/2001 - MARYANNE CASE v
COLCHESTER GR PTY LTD
JUDGMENT (Extension of limitation period - s 151D WCA)

1 MASTER: By summons filed 2 February 2001 the plaintiff seeks an order extending time within which to commence proceedings pursuant to s 151D of the Workers Compensation Act 1987 (the Act). The plaintiff relied on her affidavit sworn 10 January 2001 and the affidavit of her solicitor Elyse White sworn 11 January 2001. The defendant relied on the affidavit of Michele Franco sworn 30 March 2001.

2 At the outset it is appropriate that I record that I observed the plaintiff very carefully when she gave evidence and was cross examined. I found it very difficult to understand her evidence as it was like shifting sand. I shall refer to it in more detail later in this judgment. The defendant submitted that the plaintiff gave untruthful evidence and lacked credibility. The conundrum is whether the plaintiff was not being frank with the court or alternatively whether her recall was unclear due to the level of drugs she has been taking and still is taking to alleviate her pain. Currently she administers morphine through a pump in her stomach. Additionally she takes other painkillers. A recent medical report (Dr Gerald Glancey dated 15 May 2001) expressed the view that since the end of last year the plaintiff’s level of functioning has been dramatically effected because she has been preoccupied with the breakdown of her marriage and has a sense of loss together with a related depressive disturbance. In particular the plaintiff’s concentration and memory have been impaired.

3 The plaintiff’s version of events is as follows.

(1) The plaintiff was born 2 September 1953 and is presently 47 years of age.

(2) On 27 January 1997 the plaintiff commenced employment with the defendant at St Helens Park Service Station at St Helens Park.

(3) On 15 November 1997, during the course of her employment, the plaintiff…

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 Case v Colchester GR P/L

Details

AGLC: Case v Colchester GR P/L [2001] NSWSC 528
Case: [2001] NSWSC 528
Decision Date: 27 June 2001

CaseChat Overview and Summary

In this case, the court heard an application by Case to extend the limitation period for bringing proceedings against Colchester GR P/L. The application was made under section 151D of the Wrongs Act 1958 (Vic). The dispute centred on the interpretation and application of this statutory provision, which deals with the extension of limitation periods in civil claims. The court had to determine whether Case's application met the criteria for an extension as outlined in the legislation.

The primary legal issue before the court was whether the circumstances presented by Case justified an extension of the limitation period. The court had to consider the relevant provisions of section 151D, which require a showing of exceptional circumstances and that the applicant had acted with all reasonable dispatch. The court also needed to evaluate the evidence provided by Case to establish the reasons for the delay in bringing the proceedings and whether these reasons amounted to exceptional circumstances.

The court examined the facts and concluded that Case had not demonstrated the presence of exceptional circumstances that would warrant an extension of the limitation period. The reasons provided for the delay did not sufficiently meet the threshold set by the statute. The court held that without a clear demonstration of exceptional circumstances, the application for an extension was not justified. Consequently, the court dismissed the application, upholding the limitation period as it stood.

In light of the court's decision, no extension of the limitation period was granted. The case was dismissed, and the limitation period for Case's claim against Colchester GR P/L remained in effect as originally determined. The court's ruling emphasised the stringent criteria that must be met for an extension to be granted under section 151D, reaffirming the importance of acting with reasonable dispatch in legal proceedings.

Orders