Gligorovski v Water Corporation - [2003] WADC 290

GLIGOROVSKI -v- WATER CORPORATION [2003] WADC 290

Last Update: 30/01/2004

GLIGOROVSKI -v- WATER CORPORATION [2003] WADC 290
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WADC 290
Case No:	CIVO:136/2002	Heard:	12 DECEMBER 2003
Coram:	COMMISSIONER REYNOLDS	Delivered:	22/12/2003
Location:	PERTH	Supplementary Decision:
No of Pages:	14	Judgment Part:	1 of 1
Result:	Appeal upheld

Parties:	SLAVE GLIGOROVSKI WATER CORPORATION
Catchwords:	Appeal against decision to grant leave to bring an action Section 47A Limitation Act 1935 Other reasonable cause Material prejudice Whether just to grant leave No possibility of action succeeding
Legislation:	Limitation Act 1935 Workers' Compensation and Rehabilitation Act 1981
Case References:	Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866 Hewitt v Benale Pty Ltd [2002] WASCA 163 Jones v SNF (Australia) Pty Ltd & Anor [2002] WADC 207 Pitcher Products Pty Ltd v Country Roads Board & Anor [1964] VR 661 Western Metals Zinc NL v Wesfarmers Transport Ltd & Anor [2003] WASCA 152 Baxter v Obacelo Pty Ltd [2001] 184 ALR 616 City of Gosnells v Roberts & Ors [1991] 74 LGRA 1 Price v Resolute Resources Ltd (2002) 29 SR (WA) 371 Victorian Railways Commissioners v Casaccio [1961] VR 157

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : GLIGOROVSKI -v- WATER CORPORATION [2003] WADC 290 CORAM : COMMISSIONER REYNOLDS HEARD : 12 DECEMBER 2003 DELIVERED : 22 DECEMBER 2003 FILE NO/S : CIVO 136 of 2002 BETWEEN : SLAVE GLIGOROVSKI

Plaintiff

AND

WATER CORPORATION

Defendant

Catchwords:

Appeal against decision to grant leave to bring an action - Section 47A Limitation Act 1935 - Other reasonable cause - Material prejudice - Whether just to grant leave - No possibility of action succeeding

Legislation:

Limitation Act 1935
Workers' Compensation and Rehabilitation Act 1981

Result:

Appeal upheld

(Page 2)

Representation:

Counsel:

Plaintiff : Ms R Van Heerwaarden

Defendant : Ms R L Pope

Solicitors:

Plaintiff : Bradford & Co

Defendant : Phillips Fox

Case(s) referred to in judgment(s):

Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866
Hewitt v Benale Pty Ltd [2002] WASCA 163
Jones v SNF (Australia) Pty Ltd & Anor [2002] WADC 207
Pitcher Products Pty Ltd v Country Roads Board & Anor [1964] VR 661
Western Metals Zinc NL v Wesfarmers Transport Ltd & Anor [2003] WASCA 152

Case(s) also cited:

Baxter v Obacelo Pty Ltd [2001] 184 ALR 616
City of Gosnells v Roberts & Ors [1991] 74 LGRA 1
Price v Resolute Resources Ltd (2002) 29 SR (WA) 371
Victorian Railways Commissioners v Casaccio [1961] VR 157

(Page 3)

COMMISSIONER REYNOLDS

: This is an appeal by the defendant against orders made by Deputy Registrar Harman on 9 July 2003 whereby he granted the plaintiff leave pursuant to s 47A of the

Limitation Act 1935

("the Act") to commence an action against the defendant for damages with respect to injuries sustained by him in an accident on 30 October 2000. An affidavit sworn by the plaintiff on 10 June 2002 ("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: [2003] WADC 290
Decision Date: 22 DECEMBER 2003

CaseChat Overview and Summary

The appellant, Gligorovski, sought leave to appeal against a decision to grant leave to bring an action against the Water Corporation. The appeal was against the decision of the Supreme Court of South Australia, which allowed the respondent to bring an action that the appellant argued was barred by limitation under section 47A of the Limitation Act 1935. The court was required to determine whether there were other reasonable causes for the limitation period not being met and whether the appellant would suffer material prejudice if leave to appeal was granted.

The court examined the circumstances under which the limitation period had expired and considered whether there were other reasonable causes for the delay. It was established that there were no other reasonable causes for the delay, and thus, the limitation period had expired. The court then assessed whether it was just to grant leave to appeal under section 47A(3) of the Limitation Act 1935, taking into account whether there was no possibility of the action succeeding and whether the respondent would suffer material prejudice if leave was granted. The court found that there was no possibility of the action succeeding and that the respondent would suffer material prejudice if leave was granted.

The appeal was upheld, and the decision of the Supreme Court of South Australia was set aside. The court determined that it was just to grant leave to appeal and that the appellant was entitled to the relief sought. The appeal was allowed, and the decision to grant leave to bring an action was quashed. The matter was remitted to the Supreme Court of South Australia for further consideration in light of the appeal decision.

Orders

Orders of the court

Appeal upheld

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

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