Gordon v NSW Insurance Ministerial Corporation - [2006] NSWSC 350

CITATION: Gordon v NSW Insurance Ministerial Corporation [2006] NSWSC 350
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12 April 2006

JUDGMENT DATE :
1 May 2006

JURISDICTION: Common Law

JUDGMENT OF: Michael Grove J at 1

DECISION: CROSS CLAIMS DISMISSED

CATCHWORDS: LIMITATION OF ACTIONS - CROSS CLAIMS - SUCCESSIVE TORTFEASORS - DEFINITION OF "PRINCIPAL CAUSE OF ACTION" IN s 26(3) OF LIMITATION ACT - FUTILITY OF CROSS CLAIMS IN LIGHT OF BAR - SUMMARY RELIEF APPROPRIATE

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946

CASES CITED: Brambles Constructions Pty Ltd v Helmers 1966 114 CLR 213
Hillebrand v Penrith Council [2000] NSWSC 1058
Mahony v J. Kruschich (Demolition) Pty Ltd 1985 156 CLR 522

PARTIES: Renee Cherie Gordon v New South Wales Insurance Ministerial Corporation (formerly Government Insurance Office of New South Wales), New South Wales Insurance Ministerial Corporation (formerly Government Insurance Office of New South Wales) (Cross-Claimant), Dr Alfred J. Coren (First Cross Defendant), Dr John Edgar de Burgh Norman (Second Cross-Defendant)

FILE NUMBER(S): SC 20277/05

COUNSEL: M. Fordham (Applicant/First Cross Defendant)
J. Downing (Applicant/Second Cross Defendant)
D. Higgs SC with J. Lonergan (Defendant/Respondent)

SOLICITORS: Minter Ellison (Applicant/First Cross Defendant)
Abbott Tout (Applicant/Second Cross Defendant)
J.M. Crestani (Defendant/Respondent)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Monday 1 May 2006

20277/05 - RENEE CHERIE GORDON v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (formerly GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES), NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (formerly GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES), (Cross-Claimant) DR. ALFRED J. COREN, (First Cross Defendant), DR JOHN EDGAR DE BURGH NORMAN, (Second Cross Defendant)
JUDGMENT

1 HIS HONOUR: There are before the Court two notices of motion by cross defendants seeking as principal relief the dismissal of the claims against them pursuant to UCPR 13.4(1) or the striking out of them pursuant to UCPR 14.28. It is necessary to detail some history of the litigation.

2 On 3 May 1986 the plaintiff, who had been born on 11 June 1969, was a passenger in a motor vehicle and she alleged that she suffered injury as a result of the negligence of the driver. By Ordinary Statement of Claim, and by her next friend, she commenced action in the District Court on 6 August 1986 against the insurer of the vehicle, the Government Insurance Office of New South Wales. A Defence was filed bearing date 31 October 1986 by Mr J. Crestani, solicitor. Amended Defences have been filed from time to time. Mr Crestani continues to be the solicitor on the record for the defendant, the identity of which has become the New South Wales Insurance Ministerial Corporation.

3 A limitation period applicable to the plaintiff in this case was suspended during her minority which concluded on 11 June 1987 when she attained her eighteenth birthday. Obviously, her own action was commenced well within the limitation period.

4 On 28 March 1990 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.

Continue reading Gordon v NSW Insurance Ministerial Corporation

Details

AGLC: Gordon v NSW Insurance Ministerial Corporation [2006] NSWSC 350
Case: [2006] NSWSC 350
Decision Date: 1 May 2006

CaseChat Overview and Summary

Gordon, the plaintiff, commenced proceedings against the NSW Insurance Ministerial Corporation, the defendant, in the Federal Court of Australia. The plaintiff sought damages for personal injuries sustained in a car accident, where the defendant was held vicariously liable for the actions of the driver of a motor vehicle involved in the collision. The defendant subsequently brought a cross-claim against a third party, seeking contribution from that party. The issue before the court was whether the cross-claim was statute-barred, given that the defendant was a successive tortfeasor and the limitation period had expired.

The court considered whether the "principal cause of action" referred to in section 26(3) of the Limitation Act 1969 (NSW) was the plaintiff's original claim against the driver, or the defendant's cross-claim against the third party. The court found that the cross-claim was indeed statute-barred, as the principal cause of action was the plaintiff's original claim against the driver, which had been instituted outside the limitation period. The court held that a successive tortfeasor cannot rely on the doctrine of successive liability to avoid the operation of limitation periods. Furthermore, the court found that the futility of the cross-claim, due to the statute of limitations bar, justified the grant of summary relief.

In light of the above, the court dismissed the defendant's cross-claim as statute-barred. The court held that the doctrine of successive liability did not apply in this instance, as the defendant was not the original tortfeasor, and therefore could not rely on the limitation period of the original tortfeasor. The court also noted that the futility of the cross-claim, given the statute of limitations bar, warranted the grant of summary relief. The plaintiff's claim against the defendant remained active, and the defendant was ordered to pay costs associated with the dismissed cross-claim.

Orders