David Jones Limited v BI (Contracting) Pty Ltd - [2012] SADC 7

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
DAVID JONES LIMITED v BI (CONTRACTING) PTY LTD
[2012] SADC 7
Reasons for Ruling of His Honour Judge Jennings
8 February 2012
PROCEDURE
Matter adjourned to enable the parties to place further evidence before the Court on the issue of prejudice.
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 s6; Limitation of Actions Act (1936) (SA) s48, referred to.
Santos Limited v Workers Rehabilitation and Compensation Corporation (1998) 199 LSJS; Pond v WorkCover 1999 SASC 362, considered.

DAVID JONES LIMITED v BI (CONTRACTING) PTY LTD
[2012] SADC 7

This is an application that seeks a ruling that the within proceedings are within time or if not, that an extension of time should be granted.
It arises from the following facts.
Mr Philip Murphy was employed by the plaintiff as a display artist at its David Jones Rundle Street store between 1967 and 1978.
On 19 April 2007 Mr Murphy instituted proceedings in the Dust Diseases Tribunal of New South Wales against the plaintiff claiming damages for personal injury. He alleged that he was suffering from mesothelioma as a result of exposure to asbestos whilst working for the plaintiff.
On 8 October 2007 the plaintiff consented to judgment in favour of Mr Murphy in the sum of $435,000 all inclusive.
On 23 April 2008 the plaintiff served upon the defendant a letter of demand. The letter alleged that the defendant carried out the application of sprayed asbestos at the store at which Mr Murphy worked. It sought contribution to the damages that it had paid to Mr Murphy.
Thereafter there were some negotiations between the plaintiff and the defendant but settlement was not reached.
On 7 October 2010 the plaintiff issued the within proceedings against the defendant. It did so pursuant to the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (the Law Reform Act).
That Act relevantly provides as follows:
6. Right to contribution
(1)        A person who is liable in damages for harm suffered by another may recover contribution from a third person who is also liable in damages for the same harm.
…
(3)     An action for contribution may be brought –
…
(b)    by way of a separate action brought within the relevant time limit against the person from whom contributon is sought.
(4)    The relevant time limit is the longer of the following -
(a)the period within which the person who suffered the harm could have brought an action against the person from whom contribution is sought;
(b)two years after the damages payable by the person entitled to contribution are finally determined.”
The plaintiff accepts that the proceedings were not brought within two years after the damages payable were finally determined.
It contends, however, that they were brought within the period within which Mr Murphy could have brought an action against the defendant. It says that in the jurisdiction within which Mr Murphy issued the proceedings, under the relevant legislation, there is no time…

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: [2012] SADC 7
Decision Date: 8 February 2012

CaseChat Overview and Summary

In the District Court of South Australia, David Jones Limited brought an application against BI (Contracting) Pty Ltd for a ruling on the timeliness of their proceedings or, alternatively, for an extension of time. David Jones sought contribution from BI, claiming that BI was also liable for damages related to Mr. Philip Murphy's exposure to asbestos, which led to his mesothelioma. David Jones had previously paid Murphy damages and now sought to recover a portion of these costs from BI. The primary legal issues were whether the proceedings were within the statutory time limit and if an extension of time should be granted under the Limitation of Actions Act 2001 (SA).

The court considered whether the limitation period should be determined by New South Wales or South Australian legislation. It concluded that the limitation period must be determined under South Australian law, rendering the proceedings time-barred. The court also rejected David Jones's argument that the limitation period was three years from the date of injury, as this period had expired before the proceedings were issued. However, the court found that the Limitation of Actions Act 2001 (SA) could potentially allow for an extension of time if the interests of justice so required. While David Jones provided a plausible case for extension, the court noted the absence of a frank and candid explanation for the delay in bringing the proceedings. The court adjourned the application to allow David Jones to provide further evidence on the delay and granted the defendant liberty to file any answering affidavits. David Jones was to file any additional affidavits by 23 February 2012, and the defendant by 16 March 2012.

Orders