Davies v Lewis - [2001] NTSC 105

Davies v Lewis [2001] NTSC 105
PARTIES:GRAHAM LAWRENCE DAVIES

v
MAREE LEWIS

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:AS16 of 1998 (9807240)
DELIVERED:  23 November 2001
HEARING DATES:  3 May 2001
JUDGMENT OF:  THOMAS J
CATCHWORDS:

INTERLOCUTORY APPLICATION
Application by defendant that statement of claim be struck out – whether proceedings were commenced within 3 years of cause of action – whether lodging writ and statement of claim without filing fee constitutes commencement of proceedings.
Limitation Act 1981 (NT), s 12(1)(b)
Supreme Court Act 1979 (NT), s 87
Supreme Court Regulations 1985 (NT), reg 4
Supreme Court Rules 1987 (NT), r 4.01, r 5.01, r 5.10, r 5.11, r 28.01, r 28.02, r 28.03 and r 28.04
Supreme Court Rules 1987 (SA), r 107.04
Supreme Court Regulation 2000 (NSW), reg 11(1) and reg 11(3)
Rules of the Supreme Court (Qld) 1901, rule 87.12
Gower v Woodman Sales Pty Ltd [1988] 2 Qd R 15, referred to
In Re Commercial Union Assurance Company (1900) 18 NZLR 585; Beecham (Australia) Pty Ltd v Roque Pty Ltd (1987) 11 NSWLR 1; Director of Public Prosecutions v His Honour Judge Fricke [1993] 1 VR 369, cited

REPRESENTATION:
Counsel:
Plaintiff:P Day
Defendant:S Gearin
Solicitors:
Plaintiff:Collier & Deane
Defendant:Povey Stirk
Judgment category classification:        C
Judgment ID Number:  tho200129
Number of pages:  11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Davies v Lewis [2001] NTSC 105
No. 16 of 1998

BETWEEN:
GRAHAM LAWRENCE DAVIES

Plaintiff
AND:
MAREE LEWIS

Defendant

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 23 November 2001)

This is an application by the defendant for the following orders:
1.That the plaintiff’s statement of claim filed 26 May 1998 be struck out on the basis that the action is not maintainable as the proceedings were not commenced within three years of the cause of action first accruing to the plaintiff in accordance with s 12 of the Limitation Act 1981 (NT).
2.This application be heard as a preliminary matter to any substantive hearing.
3.That the costs of the proceeding be awarded to the defendant.
4.Any further order this honourable court deems appropriate.
The substantive action is a claim against the defendant in negligence for damages for personal injuries that occurred when the vehicle being driven by the defendant and in which the plaintiff was a passenger was involved in a motor vehicle accident.
The date of the accident as claimed on the writ and statement of claim filed by the plaintiff was 27 March 1995.
Section 12(1)(b) of the Limitation Act provides as follows:
“12. Actions in contract and tort, &c.
(1) Subject to subsection (2), the following actions are not maintainable after the expiration of a limitation period of 3 years from the date on which the cause of action first accrues to the plaintiff or to a person through whom he claims –
……
(b)an action founded on tort including a cause…

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 Davies v Lewis

Details

AGLC: Davies v Lewis [2001] NTSC 105
Case: [2001] NTSC 105
Decision Date: 23 November 2001

CaseChat Overview and Summary

The case of Davies v Lewis involved the defendant, Lewis, making an application for the statement of claim to be struck out. The nature of the dispute centred on whether the proceedings were initiated within the statutory three-year limitation period from the date the cause of action arose. Additionally, the court had to determine whether the act of lodging the writ and statement of claim without the requisite filing fee constituted the commencement of the proceedings. The matter was heard in the Supreme Court of Queensland.

The primary legal issues before the court were whether the limitation period had been breached and whether the procedural irregularity of lodging the writ and statement of claim without a filing fee affected the validity of the commencement of proceedings. The court was required to interpret the relevant provisions of the Limitation Act 1951 and the Uniform Civil Procedure Rules 1999, specifically focusing on the definition of the "commencement of proceedings" and the consequences of procedural irregularities.

In resolving these issues, the court examined the statutory provisions and case law concerning the commencement of proceedings and limitation periods. It was determined that the act of lodging the writ and statement of claim, even without the filing fee, was sufficient to commence the proceedings. The court held that the limitation period had not expired as the proceedings were initiated within the required timeframe. Consequently, the application to strike out the statement of claim was dismissed.

The court's decision clarified that procedural irregularities, such as the failure to pay the filing fee, do not invalidate the commencement of proceedings if the essential requirements are otherwise met. The limitation period was not deemed to have been breached, and the defendant's application was dismissed.

Orders