Crerar v Parkes (No 2) - [2005] TASSC 93

[2005] TASSC 93

CITATION: Crerar v Parkes (No 2) [2005] TASSC 93

PARTIES: CRERAR, Allison
v

PARKES, Scott
VANDERSLINK, Gerald
STATE OF TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  83/2003
DELIVERED ON:  26 September 2005
DELIVERED AT:  Launceston
HEARING DATE:  31 August 2005
JUDGMENT OF:  Crawford J

CATCHWORDS:

Procedure – Costs – Departing from the general rule – Other cases – Indulgence of court – Successful application to extend time under Limitation Act – Applicant unaware of possible claim until after time expired – Whether indulgence of court sought.
Aust Dig Procedure [598]

REPRESENTATION:

Counsel:
           Plaintiff:  D J Porter QC
           Second Defendant  K B Procter SC
           Third Defendant:  P Turner
Solicitors:
           Plaintiff:  Worsley Darcey & Associates
           Second Defendant:  Murdoch Clarke
           Third Defendant:  Director of Public Prosecutions

Judgment Number: [2005] TASSC 93
Number of paragraphs: 12

Serial No 93/2005
File No 83/2003

ALLISON CRERAR v SCOTT PARKES, GERALD VANDERSLINK
and STATE OF TASMANIA (NO 2)

REASONS FOR JUDGMENT CRAWFORD J
26 September 2005

On 3 March 2003 the plaintiff filed an application for an order extending time in which she might commence an action against the defendants. At the same time she filed a writ by which she commenced the action. The endorsement of claim stated that she was claiming damages for personal injuries suffered as a consequence of the negligence, breach of agreement and breach of statutory duty of the defendants between 3 March 1997 and October 2000. Because of the provisions of the Limitation Act 1974, s5, her claim with respect to a cause of action that arose prior to 3 March 2000 was barred unless she obtained an extension of time in which make it. The first defendant did not seek to rely on the limitation defence. The second and third defendants did so. Accordingly, upon the hearing of the application, the plaintiff did not pursue an order against the first defendant.

Following the hearing of the application, I ordered, on 7 July 2005, that the time within which the plaintiff might commence proceedings against the second and third defendants for damages suffered as a consequence of negligence or other breach of duty on or after 30 April 1998 was extended until 3 March 2003, which was the date of the writ. See Crerar v Parkes [2005] TASSC 63. So far as time was concerned, she gained an extension beyond the primary three year limitation period of about one year 10 months. I did not extend time with respect to a date prior to 30 April 1998 because I was not satisfied that she had demonstrated that she had an arguable case for anything that occurred earlier than then.

The plaintiff applied for an order that the second and third defendants pay her costs of the application. She sought in the alternative, that the costs of the application of the parties be costs in the action. The second and third defendants applied for orders that the plaintiff pay their costs of the…

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: [2005] TASSC 93
Decision Date: 26 September 2005

CaseChat Overview and Summary

The case of Crerar v Parkes (No 2) involved the plaintiff, Crerar, who sought costs after successfully applying to extend time under the Limitation Act, having been unaware of a possible claim until after the time had expired. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the court should depart from the general rule and grant costs to the successful applicant who had sought indulgence of the court in extending time.

The court considered the precedent set in other cases where the indulgence of the court was sought in extending time. It was noted that the court has discretion to grant costs in cases where the applicant was unaware of the possible claim until after the limitation period had expired. The court balanced the principles of justice and fairness against the strict adherence to statutory provisions. The court determined that, in light of the applicant's genuine unawareness and the circumstances, it was appropriate to exercise its discretion and grant costs.

The court acknowledged that while the general rule is that costs follow the event, exceptional circumstances can warrant a departure from this rule. The court found that the applicant's situation was exceptional and justified the indulgence of the court. The court concluded that it was appropriate to grant costs to the applicant, considering the balance of justice and the applicant's lack of knowledge regarding the claim. The court's decision reflected a nuanced approach to the application of statutory provisions, taking into account the broader principles of fairness and justice.

Orders