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Chase v Ausgrid Management Pty Ltd

Chase v Ausgrid Management Pty Ltd

Case [2022] NSWDC 337 15 August 2022

Limitation Periods

Standing

Abuse of Process

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Chase v Ausgrid Management Pty Ltd [2022] NSWDC 337
Hearing dates: 12 May 2022
Date of orders: 15 August 2022
Decision date: 15 August 2022
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
See paragraph [187] for orders.

Catchwords:
PRACTICE AND PROCEDURE – application by defendant for dismissal of plaintiff’s proceedings commenced out of time; counter-application by plaintiff seeking leave to proceed – whether plaintiff’s explanation for delay in commencing proceedings is full and satisfactory and justifying a grant of leave to proceed absent a material prejudice to the defendant

Legislation Cited:
Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW), s 14, s 26, s 56, s 58
Motor Accidents Compensation Act 1999 (NSW), s 66, s 70, s 72, s 73, s 92, s 96, s 109
Workers Compensation Act 1987 (NSW), s 66, s 151L

Cases Cited:
Bluescope Steel Pty Ltd v De Caires [2002] NSWCA 43
Chase v Blue Op Partner & Ors [2021] NSWDC 249
Djakovic v Perez [2015] NSWCA 174
Eades v Gunestepe [2012] NSWCA 204
Ellis v Reko Pty Limited [2010] NSWCA 319
Galea v Bagtrans Pty Limited [2010] NSWCA 350
Holt v Wynter [2000] NSWCA 895
House v The King (1936) 55 CLR 499; [1936] HCA 40
Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2001] NSWCA 442
Karambelas v Zaknic (No 2) [2014] NSWCA 433
Mancini v Thompson [2002] NSWCA 38
Markisic v Commonwealth of Australia [2010] NSWCA 273
Ren v Jiang (No 3) [2014] NSWCA 204
Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53
Smith v Grant [2006] NSWCA 244
Smith v Grant [2006] NSWCA 244
Walker v Howard [2009] NSWCA 408

Category: Procedural rulings
Parties: David Chase (Plaintiff)
Ausgrid Management Pty Ltd t/as Ausgrid (Defendant)
Representation:
Counsel:
Mr R Foord (Plaintiff/respondent)
Mr KR Rewell SC (Defendant/applicant)
Solicitors:
Law Partners (Plaintiff)
McInnes Wilson (Defendant)

File Number(s): 2021/321913
Publication restriction: None

Judgment

Table of Contents

Competing interlocutory applications

[1] – [6]

Summary of outcome

[7]

Overview

[8] – [18]

Factual background

[19] – [33]

Present procedural position

[34] – [36]

Legislative requirements

[37] – [40]

Issues for determination

[41] – [42]

Evidentiary basis for defendant’s dismissal application

[43] – [51]

Evidence of Mathew Foley

[44] – [51]

Evidentiary basis for plaintiff’s application for leave to proceed

[52] – [118]

Plaintiff’s statutory declaration – 4 November 2020

[56] – [58]

Affidavit evidence from the plaintiff – 11 March 2022

[59] – [73]

Plaintiff’s oral evidence

[74] – [79]

Affidavit evidence from Ms Gillian Potts

[80] – [87]

Evidence of Mr Nayven Taouk

[88] – [118]

Issue 1 – Non-report of accident to the police

[119] – [122]

Issue 2 – No notice of claim within 6 months of accident

[123]

Issue 3 – Quantum threshold

[124]

Issue 4 – Explanation for delay in commencing proceedings

[125] – [182]

Legal principles as extracted from cases decided on appeal

[130] – [142]

A reasonable person in the position of…

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 Chase v Ausgrid Management Pty Ltd

Details

AGLC: Chase v Ausgrid Management Pty Ltd [2022] NSWDC 337
Case: [2022] NSWDC 337
Decision Date: 15 August 2022

CaseChat Overview and Summary

The case of Chase v Ausgrid Management Pty Ltd involved the plaintiff, Mr. Chase, who sought damages against the defendant, Ausgrid Management Pty Ltd, for alleged negligence in the provision of electrical services. The matter was brought before the court despite being filed beyond the statutory limitation period, prompting the defendant to apply for dismissal of the proceedings. In response, Mr. Chase made a counter-application for leave to proceed out of time, arguing that his explanation for the delay was satisfactory and that there would be no material prejudice to the defendant if he were permitted to continue with the case.

The central legal issue before the court was whether Mr. Chase's explanation for the delay in commencing the proceedings was full and satisfactory and whether such an explanation justified a grant of leave to proceed despite the limitation period having expired. The court needed to assess whether Mr. Chase's delay was excusable and whether it would prejudice the defendant if the proceedings were allowed to continue. The court also needed to consider the broader principles of justice and fairness in determining whether to grant the plaintiff leave to proceed.

In its decision, the court examined the facts and circumstances surrounding Mr. Chase's delay in commencing the proceedings. The court found that Mr. Chase's explanation for the delay was credible and that there was no evidence suggesting any deliberate or inexcusable delay on his part. The court also concluded that the defendant would not be materially prejudiced by the grant of leave to proceed, as the defendant had not demonstrated any significant prejudice resulting from the delay. Consequently, the court determined that it was just and equitable to grant Mr. Chase leave to proceed with his claims, despite the delay.

The final orders of the court were that the defendant's application for dismissal of the plaintiff's proceedings was dismissed, and the plaintiff's counter-application for leave to proceed out of time was granted. The proceedings were allowed to continue, subject to the terms and conditions set by the court.

Orders

Orders of the court

See paragraph [187] for orders.

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.

Citations

AGLC Citation

Chase v Ausgrid Management Pty Ltd [2022] NSWDC 337

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 18 of 18 shown

Chase v Blue Op Partner Pty Ltd
[2021] NSWDC 249 Para 23

…the ground that the correct cause of action had not been identified, and as a result, the wrong party had been sued: Chase v Blue Op Partner & Ors [2021] NSWDC 249. In these proceedings the plaintiff is now seeking to overcome and rectify that position in order to claim compensation for his injuries.…
Dijakovic v Perez
[2015] NSWCA 174 Para 132

…e explanation is satisfactory in the sense of satisfactorily explaining the delay: Mancini v Thompson [2002] NSWCA 38, at [46]-[47]; Djakovic v Perez [2015] NSWCA 174, at [15]-[19].…
Karambelas v Zaknic (No. 2)
[2014] NSWCA 433 Para 131

…osition, to determine whether the delay that in fact occurred was reasonably justifiable in the circumstances: Karambelas v Zaknic (No 2) [2014] NSWCA 433, at [16]-[17].…
Ren v Jiang (No 3)
[2014] NSWCA 204 Para 54

…icting cross-examination on affidavits in interlocutory applications because it was necessary to clarify some factual details: Ren v Jiang (No 3) [2014] NSWCA 204, at [11]; Markisic v Commonwealth of Australia [2010] NSWCA 273, at [31].…
Eades v Gunestepe
[2012] NSWCA 204 Para 131

…The onus is on a claimant to provide a full and satisfactory explanation for the delay incurred in bringing a claim: Eades v Gunestepe [2012] NSWCA 204, at [52].…
Galea v Bagtrans Pty Ltd
[2010] NSWCA 350 Para 104

…tor accident claim. He also confirmed that in that time he was unaware of the decision of the NSW Court of Appeal in Galea v Bagtrans Pty Limited [2010] NSWCA 350, until counsel advised him of the effect of that decision.…
Ellis v Reko Pty Limited
[2010] NSWCA 319 Para 132

…r guidance, ultimately, where the Court is called upon to exercise a discretion, each case must be decided on its own facts: Ellis v Reko Pty Limited [2010] NSWCA 319, at [18]; s 58(2) of the CP Act .…
Markisic v Commonwealth of Australia
[2010] NSWCA 273 Para 54

…ions because it was necessary to clarify some factual details: Ren v Jiang (No 3) [2014] NSWCA 204, at [11]; Markisic v Commonwealth of Australia [2010] NSWCA 273, at [31].…
Walker v Howard
[2009] NSWCA 408 Para 136

…in the explanation, it is not necessary to recite all of the minutiae as to what took place over the course of the time in question: Walker v Howard [2009] NSWCA 408, at [53]-[56], [64], [73], [104], [108], [134].…
Smith v Grant
[2006] NSWCA 244 Para 128

…any kind, and had no detailed knowledge of the procedural or time requirements for making such claims under the scheme of the MAC Act : Smith v Grant [2006] NSWCA 244, at [64].…
Russo v Aiello
[2003] HCA 53 Para 135

…nwarranted speculation or inferences against legal practitioners that assume deficiencies in legal representation: Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53, at [13]. An approach along those lines is a distraction from the need to consider the jurisdiction conferred by s 109(3) of the MAC Act .…
Mancini v Thompson
[2002] NSWCA 38 Para 132

…ovided, it is for the Court to decide whether the explanation is satisfactory in the sense of satisfactorily explaining the delay: Mancini v Thompson [2002] NSWCA 38, at [46]-[47]; Djakovic v Perez [2015] NSWCA 174, at [15]-[19].…
Adam Troy v Aldo Salucci
[2002] NSWCA 43 Para 138

…t of the claimant, where the claimant relied upon professional advice to pursue an alternative statutory claim: Bluescope Steel Pty Ltd v De Caires [2002] NSWCA 43, at [29].…
Itek Graphix Pty Ltd v Elliott
[2002] NSWCA 104 Para 137

…explanation for the delay, including negativing an absence of diligence or carelessness on the part of the applicant: Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2001] NSWCA 442, at [89], [91].…
Itek Graphix Pty Limited v Elliott
[2001] NSWCA 442 Para 137

…delay, including negativing an absence of diligence or carelessness on the part of the applicant: Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2001] NSWCA 442, at [89], [91].…
House v R
[1936] HCA 40 Para 6

…The resolution of these competing applications involves the exercise of reasoned discretion: House v The King (1936) 55 CLR 499; [1936] HCA 40. In this case it has required a detailed examination and exposition of a plethora of material relied upon by the parties to discern whether the plaintiff’s explanations a…
Holt v Wynter
[2000] NSWCA 895 Para 185

…iscretion: s 98(1) of the CP Act . The exercise of a discretion to award costs must be dependent upon the facts of the particular case: Holt v Wynter [2000] NSWCA 895, at [104].…
House v The King
63 WN 176 Para 6

…The resolution of these competing applications involves the exercise of reasoned discretion: House v The King (1936) 55 CLR 499; [1936] HCA 40. In this case it has required a detailed examination and exposition of a plethora of material relied upon by the parties to discern whether the plaintiff’s explanations are full an…

Legislation cited in this decision · 4

Civil Procedure Act 2005 (NSW)
14 2 mentions (from Para 7)
Motor Accidents Compensation Act 1999 (NSW)
66 2 mentions (from Para 1)
Workers Compensation Act 1987 (NSW)
66 2 mentions (from Para 65)
Civil Liability Act 2002 (TAS)
1 mention (from Para 25)

Medium Neutral Citation:	Chase v Ausgrid Management Pty Ltd [2022] NSWDC 337
Hearing dates:	12 May 2022
Date of orders:	15 August 2022
Decision date:	15 August 2022
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	See paragraph [187] for orders.
Catchwords:	PRACTICE AND PROCEDURE – application by defendant for dismissal of plaintiff’s proceedings commenced out of time; counter-application by plaintiff seeking leave to proceed – whether plaintiff’s explanation for delay in commencing proceedings is full and satisfactory and justifying a grant of leave to proceed absent a material prejudice to the defendant
Legislation Cited:	Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW), s 14, s 26, s 56, s 58 Motor Accidents Compensation Act 1999 (NSW), s 66, s 70, s 72, s 73, s 92, s 96, s 109 Workers Compensation Act 1987 (NSW), s 66, s 151L
Cases Cited:	Bluescope Steel Pty Ltd v De Caires [2002] NSWCA 43 Chase v Blue Op Partner & Ors [2021] NSWDC 249 Djakovic v Perez [2015] NSWCA 174 Eades v Gunestepe [2012] NSWCA 204 Ellis v Reko Pty Limited [2010] NSWCA 319 Galea v Bagtrans Pty Limited [2010] NSWCA 350 Holt v Wynter [2000] NSWCA 895 House v The King (1936) 55 CLR 499; [1936] HCA 40 Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2001] NSWCA 442 Karambelas v Zaknic (No 2) [2014] NSWCA 433 Mancini v Thompson [2002] NSWCA 38 Markisic v Commonwealth of Australia [2010] NSWCA 273 Ren v Jiang (No 3) [2014] NSWCA 204 Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 Smith v Grant [2006] NSWCA 244 Smith v Grant [2006] NSWCA 244 Walker v Howard [2009] NSWCA 408
Category:	Procedural rulings
Parties:	David Chase (Plaintiff) Ausgrid Management Pty Ltd t/as Ausgrid (Defendant)
Representation:	Counsel: Mr R Foord (Plaintiff/respondent) Mr KR Rewell SC (Defendant/applicant) Solicitors: Law Partners (Plaintiff) McInnes Wilson (Defendant)
File Number(s):	2021/321913
Publication restriction:	None

Competing interlocutory applications	[1] – [6]
Summary of outcome	[7]
Overview	[8] – [18]
Factual background	[19] – [33]
Present procedural position	[34] – [36]
Legislative requirements	[37] – [40]
Issues for determination	[41] – [42]
Evidentiary basis for defendant’s dismissal application	[43] – [51]
Evidence of Mathew Foley	[44] – [51]
Evidentiary basis for plaintiff’s application for leave to proceed	[52] – [118]
Plaintiff’s statutory declaration – 4 November 2020	[56] – [58]
Affidavit evidence from the plaintiff – 11 March 2022	[59] – [73]
Plaintiff’s oral evidence	[74] – [79]
Affidavit evidence from Ms Gillian Potts	[80] – [87]
Evidence of Mr Nayven Taouk	[88] – [118]
Issue 1 – Non-report of accident to the police	[119] – [122]
Issue 2 – No notice of claim within 6 months of accident	[123]
Issue 3 – Quantum threshold	[124]
Issue 4 – Explanation for delay in commencing proceedings	[125] – [182]
Legal principles as extracted from cases decided on appeal	[130] – [142]
A reasonable person in the position of…