Hill v Iluka Corporation Ltd - [2002] TASSC 113

[2002] TASSC 113

CITATION: Hill v Iluka Corporation Ltd & Anor [2002] TASSC 113

PARTIES:  HILL, Richard Grant Manners
  v
  ILUKA CORPORATION LTD (ACN 000 048 464)

RENISON LTD (ACN 004 490 304)

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 77/2002
DELIVERED ON:  10 December 2002
DELIVERED AT:  Hobart
HEARING DATES:  8 November 2002
JUDGMENT OF:  Underwood, Evans and Blow JJ

CATCHWORDS:

Limitation of Actions - Postponement of the bar - Extension of period - Cause of action in respect of personal injuries - Principles upon which discretion exercised - Explanation for delay - Prima facie case - Prejudice.

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied.
Holt v Wynter (2000) 49 NSWLR 128; Knight v Smith [1975] Tas R 83; Klein v Domus (1963) 109 CLR 467; Parsons v Doukas (2001) 52 NSWLR 163; Marr v Green (1994) Aust Torts Reports ¶81-277, followed.
Limitation Act 1974 (Tas), s5(3).
Aust Dig Limitation of Actions [55]

REPRESENTATION:

Counsel:
             Appellant:  K E Read
             First Respondent:  C P Webster
             Second Respondent:  F V Moore

Solicitors:
             Appellant:  Page Seager
             First Respondent:  Wallace Wilkinson & Webster
             Second Respondent:  Archer Bushby

Judgment Number: [2002] TASSC 113
Number of Paragraphs: 40

Serial No 113/2002
File No FCA 77/2002

RICHARD GRANT MANNERS HILL v ILUKA CORPORATION LTD
(ACN 000 048 464) and RENISON LTD (ACN 004 490 304)

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD J
EVANS J
BLOW J
10 December 2002

Orders of the Court

Appeal allowed.

Order dated 22 August 2002 allowing the appeal from the order of the Master dated 23 May 2002 quashed.

In lieu thereof order that the time within which the appellant may bring proceedings against the respondents for damages for personal injury arising out of an incident that occurred on or about 9 March 1998 be extended to 26 July 2001.

Serial No 113/2002
File No FCA 77/2002

RICHARD GRANT MANNERS HILL v ILUKA CORPORATION LTD
(ACN 000 048 464) and RENISON LTD (ACN 004 490 304)

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD J
EVANS J
BLOW J
10 December 2002

Introduction

The issue on this appeal is whether error attended the exercise of the learned primary judge's discretion when he ordered that the appellant's application for an extension of time within which to commence proceedings against the respondent be dismissed. Four grounds of appeal were relied upon and one was abandoned:

"2   The Learned Chief Justice erred in law in that he failed to differentiate between the importance of delay in informing the discretion when the delay occurs within rather than outside the limitation period.
3    The Learned Chief Justice erred in law in failing to take into account the part played by the Appellant's solicitor when considering if the delay had been satisfactorily explained and the weight to be given to delay in the exercise of his discretion.
4    The Learned Chief Justice erred in law in giving the weight he did to…

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 Hill v Iluka Corporation Ltd 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: [2002] TASSC 113
Decision Date: 10 December 2002

CaseChat Overview and Summary

The appeal before the Full Court of the Supreme Court of Tasmania was brought by Richard Grant Manners Hill against Iluka Corporation Ltd and Renison Ltd. Hill was a trainee geologist working at the Renison tin mine when he fell from a ladder on 9 March 1998 and sustained injuries. He did not initiate legal proceedings within the statutory limitation period, which expired on 9 July 2001. Hill applied for an extension of time to bring his claim, which was dismissed by the primary judge. Hill appealed to the Full Court, contending that the primary judge had erred in his exercise of discretion in dismissing the application for an extension of time.

The legal issues before the court were whether the primary judge erred in his exercise of discretion in four respects: (1) whether he failed to differentiate between the importance of delay in informing the discretion when the delay occurs within rather than outside the limitation period; (2) whether he failed to take into account the part played by the appellant's solicitor when considering if the delay had been satisfactorily explained and the weight to be given to delay in the exercise of his discretion; (3) whether he erred in giving the weight he did to arguments based on prejudice as he stopped short of deciding that by reason of the prejudice a fair trial had been thwarted; and (4) whether he failed to undertake a weighing and balancing process of the arguable case, delay, and prejudice in order to determine if, in the circumstances, he was satisfied that it was just and reasonable to extend time.

The court found that the primary judge had erred in his exercise of discretion. The Full Court held that there was a reasonable explanation for the delay in initiating proceedings, and that the appellant had an arguable case. Although the lapse of time had caused prejudice, the majority of that prejudice had occurred well before the time limit had expired and well before the appellant's medical condition reached the stage where he had reason to decide to claim damages. The court concluded that the primary judge had attached undue weight to the delay and prejudice, and failed to undertake a proper weighing and balancing process. The appeal was allowed, and the order of the primary judge dismissing the application to extend time was quashed. In lieu thereof, there would be an order that the time within which the appellant may bring proceedings against the respondents for damages for personal injury arising out of an accident that occurred on or about 9 March 1998 was extended to 26 July 2001.

Orders