Delta Pty Ltd v Whitefield - [2004] NSWCA 220

CITATION: Delta Pty Ltd v Whitefield [2004] NSWCA 220

HEARING DATE(S): 17/06/04

JUDGMENT DATE:
6 July 2004

JUDGMENT OF: Handley JA at 1; Sheller JA at 2; Cripps AJA at 3

DECISION: Leave to appeal granted - Appeal upheld - Decision of trial judge set aside - Opponent's notice of motion for extension of limitation period dismissed - Opponent to pay costs.

CATCHWORDS: Limitation Act 1969 s60C and s60E - Advice given of common law claim and "election" to remain on workers compensation a relevant circumstance - Defendant's loss of public liability cover due to collapse of insurance company also a relevant circumstance.

LEGISLATION CITED: Limitation Act 1969
Workers Compensation Act 1987

CASES CITED: Itek Graphix Pty Ltd v Elliott (2002) 54 NSW LR 207
Kondis v State Transit Authority (1984) 154 CLR 672
Ashton v Benders [2002] TASSC 68
Schering-Plough Pty Ltd v Page (2002) NSWCA 4

PARTIES :
APPELLANT
Delta Pty Ltd
RESPONDENT
Donnie Whitefield

FILE NUMBER(S): CA 40704/2003

COUNSEL: CLAIMANT
Mr C R R Hoeben AM RFD SC with Mr G M Gregg
OPPONENT
Mr K P Rewell SC with Mr M A Cleary

SOLICITORS: CLAIMANT
Bartier Perry
OPPONENT
AMC Law

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 9797/2002

LOWER COURT
JUDICIAL OFFICER : Phegan DCJ

CA 40704/03

Handley JA
Sheller JA
Cripps AJA
Tuesday 6 July 2004

DELTA PTY LTD v DONNIE WHITEFIELD

Judgment

1 HANDLEY JA: I agree with Cripps AJA.

2 SHELLER JA: I agree with Cripps AJA.

3 CRIPPS AJA: This is an application for leave to appeal from a decision of Phegan DCJ published on 25 July 2003 granting the opponent an extension of time pursuant to s 60C of the Limitation Act 1969 to sue the claimant in negligence.

4 A cause of action founded on negligence is not maintainable if brought after the expiration of the limitation period of three years from the date on which the cause of action first accrues (s 18A Limitation Act) unless the Court extends the limitation period.

5 Section 60C relevantly provides that if application is made to a court by a person claiming to have a cause of action in negligence the court -

“ after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines.”

“(1) In exercising the powers conferred on it by section 60C …, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:

(a) the length of and reasons for the delay,

(b) the extent to which, having regard to the delay, there is or may be…

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.

Keep reading for free

Create a free CaseChat account to read Delta Pty Ltd v Whitefield and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] NSWCA 220
Decision Date: 6 July 2004

CaseChat Overview and Summary

Delta Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the trial judge that granted an extension of the limitation period to Whitefield (the respondent) in relation to a common law claim. The dispute concerned the respondent's entitlement to pursue a claim for damages for personal injury, which had been filed outside the statutory time limits.

The primary legal issue before the Court of Appeal was whether the trial judge had erred in exercising their discretion to extend the limitation period under the *Limitation Act 1969* (NSW). Specifically, the court had to consider whether the circumstances relied upon by the respondent, including advice given regarding a common law claim and an election to remain on workers' compensation, and the appellant's loss of public liability cover due to an insurance company's collapse, were relevant and sufficient to justify an extension.

The Court of Appeal found that the trial judge had misapplied the relevant principles in granting the extension. The court held that the respondent's advice and election were not circumstances that could excuse the delay in commencing proceedings. Furthermore, the appellant's loss of insurance cover, while a significant event, was not a circumstance that could be attributed to the respondent's conduct or inaction in a way that would justify an extension of time. The court concluded that the trial judge's discretion had been improperly exercised.

Consequently, leave to appeal was granted, the appeal was upheld, and the decision of the trial judge was set aside. The respondent's notice of motion for an extension of the limitation period was dismissed, and the respondent was ordered to pay the appellant's costs.

Orders

Orders of the court

Leave to appeal granted - Appeal upheld - Decision of trial judge set aside - Opponent's notice of motion for extension of limitation period dismissed - Opponent to pay costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Delta Pty Ltd v Whitefield [2004] NSWCA 220
HEARING DATE(S):	17/06/04
JUDGMENT DATE:	6 July 2004
JUDGMENT OF:	Handley JA at 1; Sheller JA at 2; Cripps AJA at 3
DECISION:	Leave to appeal granted - Appeal upheld - Decision of trial judge set aside - Opponent's notice of motion for extension of limitation period dismissed - Opponent to pay costs.
CATCHWORDS:	Limitation Act 1969 s60C and s60E - Advice given of common law claim and "election" to remain on workers compensation a relevant circumstance - Defendant's loss of public liability cover due to collapse of insurance company also a relevant circumstance.
LEGISLATION CITED:	Limitation Act 1969 Workers Compensation Act 1987
CASES CITED:	Itek Graphix Pty Ltd v Elliott (2002) 54 NSW LR 207 Kondis v State Transit Authority (1984) 154 CLR 672 Ashton v Benders [2002] TASSC 68 Schering-Plough Pty Ltd v Page (2002) NSWCA 4
PARTIES :	APPELLANT Delta Pty Ltd RESPONDENT Donnie Whitefield
FILE NUMBER(S):	CA 40704/2003
COUNSEL:	CLAIMANT Mr C R R Hoeben AM RFD SC with Mr G M Gregg OPPONENT Mr K P Rewell SC with Mr M A Cleary
SOLICITORS:	CLAIMANT Bartier Perry OPPONENT AMC Law

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	9797/2002
LOWER COURT JUDICIAL OFFICER :	Phegan DCJ