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Clark v McGuinness

Clark v McGuinness

Case [2005] VSCA 108 12 May 2005

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3716 of 2003

GEOFFREY CLARK
	Appellant
v.
JOANNE McGUINNESS	Respondent

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JUDGES:	WARREN, C.J., WINNEKE, P., CHARLES, CALLAWAY and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	13 and 14 September 2004
DATE OF JUDGMENT:	12 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 108

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Limitation of Actions – Personal injuries – Action brought by respondent more than 20 years after cause of action accrued – Whether trial judge was correct in determining that it was “just and reasonable” to extend the time for bringing action – Limitation of Actions Act 1958, s.23A.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. R.J. Stanley, Q.C. and Mr. C.M. O’Neill	Coadys
For the Respondent	Mr. T.P. Tobin, S.C. and Mr. S.M. Roseman	Hale & Wakeling

WARREN, C.J.:

An appeal is brought against an order made in the County Court on 7 May 2003 that the respondent, Joanne McGuinness, be granted leave for an extension of time pursuant to s.23A of the Limitation of Actions Act 1958 to bring proceedings against the appellant, Geoffrey Clark.

By Writ filed on 20 August 2002, the respondent alleged she was sexually assaulted by the appellant on 14 February 1981. She claimed damages for personal injury and breach of duty alleged to arise from the assault. As the claim was brought after the limitation period had expired it was necessary for the respondent to apply to the court below for an extension of time under the statute. The respondent also applied in the court below for leave pursuant to s. 23A of the Act in relation to personal injuries alleged to have been suffered by her on 18 July 1987 at Purnim. The judge found that the respondent received legal advice shortly following the alleged attack at Purnim and that she had the capacity to bring civil proceedings against the appellant with respect to that matter. His Honour concluded that the extension of time should not be granted under s. 23A with respect to the alleged assault at Purnim. The application was dismissed and that particular matter is not the subject of the appeal.

The appellant and the respondent are first cousins and knew each other and their respective families from living in the Warrnambool area and, in particular, through an Aboriginal mission at Framlingham, near Warrnambool.

The events surrounding the alleged sexual assault on 14 February 1981 may be set out briefly for the purposes of the appeal. The appellant strenuously denied the allegations. The respondent alleged that the sexual assault occurred at Logan’s Beach, Warrnambool, when the appellant drove her there in the company of several others. One person present was an associate of the appellant, Frank Abraham; another, a friend of the respondent at the time, Angie Anderson; and a person known to both the appellant and the respondent, one David Clark, also known as Charlie Clark. The respondent alleged that after the appellant parked the car at Logan’s Beach he pulled her from it and…

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 Clark v McGuinness

Details

AGLC: Clark v McGuinness [2005] VSCA 108
Case: [2005] VSCA 108
Decision Date: 12 May 2005

CaseChat Overview and Summary

The parties involved in this case were Clark and McGuinness. Clark sought to bring a personal injury claim against McGuinness more than 20 years after the cause of action accrued. The dispute was brought before the court to determine whether the trial judge was correct in extending the time limit for bringing the action. The relevant legislation in question was the Limitation of Actions Act 1958, specifically section 23A.

The primary legal issue before the court was whether it was just and reasonable to extend the time limit for bringing the action, given that the claim was brought more than 20 years after the cause of action accrued. The court needed to consider whether the trial judge's decision to extend the time limit was appropriate and in line with the provisions of the Limitation of Actions Act 1958. The court also had to consider the relevant factors and circumstances that should be taken into account when determining whether it is just and reasonable to extend the time limit.

The court found that the trial judge had considered all relevant factors and circumstances in determining whether it was just and reasonable to extend the time limit for bringing the action. The court found that the trial judge had not erred in his decision to extend the time limit, as the factors and circumstances considered were appropriate and in line with the provisions of the Limitation of Actions Act 1958. The court also found that the trial judge had not acted capriciously or unreasonably in his decision.

The final orders of the court were that the trial judge's decision to extend the time limit for bringing the action was upheld, and the claim was allowed to proceed. The court found that it was just and reasonable to extend the time limit, and that the trial judge had not erred in his decision. The claim was therefore allowed to proceed, despite being brought more than 20 years after the cause of action accrued.

Orders