Country Waste Systems Pty Ltd v Lauren Jane Wright - [2007] NSWDC 287

Reported Decision:
6 DCLR (NSW) 136

District Court

CITATION: Country Waste Systems Pty Ltd v Lauren Jane Wright [2007] NSWDC 287

HEARING DATE(S): 20 July 2007, 23 July 2007

EX TEMPORE JUDGMENT DATE: 23 July 2007

JURISDICTION: Civil

JUDGMENT OF: Neilson DCJ at 1

DECISION: Defence pleaded has not been made out; Defendant to pay plaintiff's costs of this application; Application under section 341 of the Legal Profession Act 2004 reserved for later consideration by trial judge; Matter remitted to Registrar at Albury

CATCHWORDS: Plaintiff injured on 8 January 2004 - Proceedings commenced on 15 February 2007 - Seperate trial of issue raised by a defence under section 50C of Limitation Act 1969 - Held: action not statute barred as cause of action became discoverable to plaintiff on or about 15 September 2004 about which time (a) expert's report concerning liability was delivered to plaintiff's solicitor, and (b) plaintiff's disability commences to interfere with her working capacity - Consideration of the proper construction of Limitation Act 1969 section 50D(1)(b) - Dark v The Country Fire Authority (Stott CCJ, unreported, 21 June 2005, 4371 of 2004) - Ilardi v Forster [2006] VCC 793 - Caven v The Women's and Children's Health [2007] VSC 7 - Antonini v SRA (No 2) [2006] NSWDC 133 - Clark v Gerrard Signode Pty Ltd (Toner DCJ, unreported, 22 June 2007, 471 of 2006)

LEGISLATION CITED: Limitation Act 1969

CASES CITED: Dark v The Country Fire Authority (Stott CCJ, unreported, 21 June 2005, 4371 of 2004)
Ilardi v Forster [2006] VCC 793
Caven v The Women's and Children's Health [2007] VSC 7
Antonini v SRA (No 2) [2006] NSWDC 133
Clark v Gerrard Signode Pty Ltd (Toner DCJ, unreported, 22 June 2007, 471 of 2006)

PARTIES: Country Waste Systems Pty Ltd (Defendant / Applicant)
Lauren Jane Wright (Plaintiff / Respondent)

FILE NUMBER(S): 2362/07

COUNSEL: Chen (Defendant / Applicant)
Stewart (Plaintiff / Respondent)

JUDGMENT

1 HIS HONOUR: The current application was commenced by a notice of motion filed on 29 May 2007. The first order sought in the notice of motion was this:

“The statement of claim be dismissed because the claim is barred by the operation of section 50C of the Limitation Act 1969”.

2 However, during the course of the hearing of the application, the notice of motion was amended, by consent, so that the first order sought is this:

“The issue tendered by paragraph 14 of the Defence filed on 6 March 2007 be tried separately and instanter”.

3 Essentially, the parties have agreed that the issue tendered by paragraph 14 of the Defence filed on 6 March 2007 be separately heard and determined on this application. The statement of claim was filed on 15 February 2007 at Albury.

4 Paragraph 2 of the statement of claim alleges an agreement between the plaintiff and the defendant “in or about 2003” that the defendant would, for reward, deliver to the plaintiff, at her residence in Deniliquin, a waste bin and would collect the waste…

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: [2007] NSWDC 287
Decision Date: 23 July 2007

CaseChat Overview and Summary

The plaintiff, Country Waste Systems Pty Ltd, was injured on 8 January 2004. The proceedings were commenced on 15 February 2007. The case was a separate trial of an issue raised by a defence under section 50C of the Limitation Act 1969. The plaintiff sought to recover damages for the injuries sustained. The defendant argued that the plaintiff's action was statute-barred, as the cause of action was not discovered within the required period. The court was required to determine the date on which the plaintiff became aware of the cause of action and whether the action was statute-barred under the Limitation Act 1969.

The court considered the proper construction of section 50D(1)(b) of the Limitation Act 1969, which provides that the cause of action accrues when the plaintiff knew or ought to have known the facts giving rise to the cause of action. The court noted that the plaintiff became aware of the facts giving rise to the cause of action on or about 15 September 2004, when an expert's report concerning liability was delivered to the plaintiff's solicitor, and the plaintiff's disability began to interfere with her working capacity. The court held that the action was not statute-barred as the cause of action became discoverable to the plaintiff on or about 15 September 2004. The court also considered relevant cases such as Dark v The Country Fire Authority, Ilardi v Forster, Caven v The Women's and Children's Health, Antonini v SRA (No 2), and Clark v Gerrard Signode Pty Ltd.

The court found that the defence pleaded by the defendant had not been made out. The defendant was ordered to pay the plaintiff's costs of the application. An application under section 341 of the Legal Profession Act 2004 was reserved for later consideration by the trial judge. The matter was remitted to the Registrar at Albury for further proceedings.

Orders

Orders of the court

Defence pleaded has not been made out; Defendant to pay plaintiff's costs of this application; Application under section 341 of the Legal Profession Act 2004 reserved for later consideration by trial judge; Matter remitted to Registrar at Albury

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Country Waste Systems Pty Ltd v Lauren Jane Wright [2007] NSWDC 287
HEARING DATE(S):	20 July 2007, 23 July 2007
EX TEMPORE JUDGMENT DATE:	23 July 2007
JURISDICTION:	Civil
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	Defence pleaded has not been made out; Defendant to pay plaintiff's costs of this application; Application under section 341 of the Legal Profession Act 2004 reserved for later consideration by trial judge; Matter remitted to Registrar at Albury
CATCHWORDS:	Plaintiff injured on 8 January 2004 - Proceedings commenced on 15 February 2007 - Seperate trial of issue raised by a defence under section 50C of Limitation Act 1969 - Held: action not statute barred as cause of action became discoverable to plaintiff on or about 15 September 2004 about which time (a) expert's report concerning liability was delivered to plaintiff's solicitor, and (b) plaintiff's disability commences to interfere with her working capacity - Consideration of the proper construction of Limitation Act 1969 section 50D(1)(b) - Dark v The Country Fire Authority (Stott CCJ, unreported, 21 June 2005, 4371 of 2004) - Ilardi v Forster [2006] VCC 793 - Caven v The Women's and Children's Health [2007] VSC 7 - Antonini v SRA (No 2) [2006] NSWDC 133 - Clark v Gerrard Signode Pty Ltd (Toner DCJ, unreported, 22 June 2007, 471 of 2006)
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Dark v The Country Fire Authority (Stott CCJ, unreported, 21 June 2005, 4371 of 2004) Ilardi v Forster [2006] VCC 793 Caven v The Women's and Children's Health [2007] VSC 7 Antonini v SRA (No 2) [2006] NSWDC 133 Clark v Gerrard Signode Pty Ltd (Toner DCJ, unreported, 22 June 2007, 471 of 2006)
PARTIES:	Country Waste Systems Pty Ltd (Defendant / Applicant) Lauren Jane Wright (Plaintiff / Respondent)
FILE NUMBER(S):	2362/07
COUNSEL:	Chen (Defendant / Applicant) Stewart (Plaintiff / Respondent)