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Harrex v Hall-King

Harrex v Hall-King

Case [2012] TASSC 45 6 July 2012

Limitation Periods

Plea in Defence

Statute Barred

Civil Litigation & Procedure

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[2012] TASSC 45

COURT: SUPREME COURT OF TASMANIA

CITATION: Harrex v Hall-King [2012] TASSC 45

PARTIES:  HARREX, Emma by her litigation guardian Alecia Baker
  v
  HALL-KING, Alana

FILE NO/S:  1022/2010
DELIVERED ON:  6 July 2012
HEARING DATE:  25 May 2012
JUDGMENT OF:  Porter J

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Procedure under rules of court – Other matters arising before trial – Power to order that in any proceeding any question be tried before any other – Plea in defence that action statute barred – Whether action statute barred depended on date of discoverability – Whether limitation plea should be tried before any other question in the action – Order to be made only in clear cases.

Idoport Pty Ltd v National Australia Bank [2000] NSWSC 1215, Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141, Parramatta Stadium Trust v Civil and Civil Pty Ltd [1996] NSWSC 439, applied.
Supreme Court Rules 2000 (Tas), r559(1)(b).
Aust Dig Procedure [277]

REPRESENTATION:

Counsel:
             Plaintiff:  A J Bartley SC and I D Bradfield
             Defendant:  K E Read SC
Solicitors:
             Plaintiff:  Bradfields Lawyers as agents for LHD Lawyers
             Defendant:  Page Seager

Judgment Number: [2012] TASSC 45
Number of paragraphs: 36

Serial No 45/2012
File No 1022/2010

EMMA HARREX by her litigation guardian ALECIA BAKER
v ALANA HALL-KING

REASONS FOR JUDGMENT PORTER J

6 July 2012

Introduction

This is an application by the plaintiff under r559(1)(b) of the Supreme Court Rules 2000 (SCR) for an order that the question of whether her action is statute barred be tried before any other.

The action is one for damages for personal injuries suffered in a motor vehicle accident on 21 December 2005. The plaintiff was 13 years old at the time, her date of birth being 18 July 1991. Although there is a rather complicated history in relation to the institution of proceedings, the writ naming Ms Hall-King as defendant was filed on 27 February 2012.

By her amended statement of claim the plaintiff alleges that on 21 December 2005 she was a passenger in a motor vehicle driven by the defendant in the vicinity of the intersection of Fingerpost Road and the East Coast Highway, that the defendant "proceeded off the road which caused the vehicle to roll and caused injury to the Plaintiff". What is referred to as the "collision" is said to have been caused by the defendant's negligence.

Although "draft" particulars of claim before me contain a more comprehensive list of the injuries said to have been suffered, those set out in the statement of claim are: "Closed head injury, Hand injuries, Deep lacerations to the right shoulder, Back injury cervical and thoracic, Pelvic injury, General lacerations, Bruising, Injury to the right scapula, Mild diffuse brain injury, Psychological injury [and] PTSD"

The defence to the statement of claim puts in issue the fact of the vehicle leaving the roadway, that the defendant was the driver, and that the collision was caused by her negligence.…

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 Harrex v Hall-King

Details

AGLC: Harrex v Hall-King [2012] TASSC 45
Case: [2012] TASSC 45
Decision Date: 6 July 2012

CaseChat Overview and Summary

The case of Harrex v Hall-King involves a dispute concerning a plea in defence that the action was statute-barred. The matter was heard in the Supreme Court of Tasmania, where the plaintiff, Harrex, sought to enforce a settlement agreement. The defendant, Hall-King, raised a plea in defence, contending that the action was statute-barred as it depended on the date of discoverability. The core issue before the court was whether the limitation plea should be tried before any other question in the action and whether an order should be made to try the limitation plea first only in clear cases.

The court considered the procedural rules of the Supreme Court of Tasmania and the principle that an order to try a plea in defence before any other question in the action should be made only in clear cases. The court examined the circumstances in which such an order might be appropriate, particularly when the limitation plea was crucial to the determination of the case. The court held that an order should be made to try the limitation plea before any other question only in situations where it was evident that the limitation plea would significantly impact the outcome of the case, and there was no substantial dispute over the facts upon which the limitation plea was based.

The court concluded that an order should not be made to try the limitation plea before any other question unless the circumstances were clear and the limitation plea was of such a nature that it would likely determine the case. The court emphasised that the decision to try the limitation plea first should be reserved for cases where the facts were not in substantial dispute and the limitation plea was a pivotal issue. In this case, the court found that the circumstances did not warrant such an order, as there were substantial factual disputes that needed to be resolved before the limitation plea could be properly assessed.

In light of the above, the court dismissed the application to try the limitation plea before any other question in the action. The court determined that the case should proceed with the other questions being addressed first, allowing for a comprehensive assessment of the facts before the limitation plea was considered. The court's decision underscores the importance of ensuring that all relevant issues are properly addressed in the context of the case, and that orders to try specific pleas should be made only in clear and appropriate circumstances.

Orders