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JMC v Moore

JMC v Moore

Case [2006] QDC 418 21 December 2006

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DISTRICT COURT OF QUEENSLAND

CITATION:

JMC v Moore [2006] QDC 418

PARTIES:

JMC

Plaintiff

AND

NOEL PALMER MOORE

Defendant

FILE NO/S:

BD2258/06

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

21 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

27 October 2006

JUDGE:

McGill DCJ

ORDER:

Application dismissed, plaintiff’s action dismissed, order the plaintiff to pay the defendant’s costs of the action including the costs of the application to be assessed

CATCHWORDS:

LIMITATION OF ACTIONS – Personal injuries – extension of time – whether material facts decisive – whether known to plaintiff

Limitation of Actions Act 1974 s 30(1)(b), 31(2).

Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton and Ors [2001] QCA 335 – applied.
Dick v The University of Queensland [2000] 2 Qd R 476 – followed.
Do Carmo v Ford Excavation Pty Ltd (1984) 145 CLR 234 – applied.
Healy v Femdale Pty Ltd [1993] QCA 210 – cited.
Jocumsen v Thiess Pty Ltd [2005] QCA 198 – distinguished.
Johnson v DOCS [1999] NSWSC 1156 – distinguished.
NF v State of Queensland [2005] QCA 110 – followed.
State of Queensland v Stephenson (2006) 80 ALJR 923 – applied.
Watson v Poynter [2003] QCA 224 – followed.

COUNSEL:

D. J. Kelly for the plaintiff

M. J. Drysdale for the defendant

SOLICITORS:

Parker Simmonds for the plaintiff

Lang Hemming and Hall for the defendant

This is an application for an extension of the limitation period under s 31 of the Limitation of Actions Act 1974 (“the Act”). The plaintiff commenced a proceeding against the defendant by a claim and statement of claim filed on 2 August 2006 by which the plaintiff claims damages for assault and psychiatric injury, including aggravated and exemplary damages. The attached statement of claim alleged that the relevant events occurred between 11 April 1981 and 31 December 1990. The plaintiff was born on 11 April 1978, so the limitation period expired on 11 April 1999. By a notice of intention to defend and defence filed 6 September 2006, the defendant admitted that he intentionally and unlawfully sexually assaulted the plaintiff, though he did not admit the injuries alleged and a good deal of the detail in the statement of claim, and pleaded that the plaintiff’s cause of action sued on was barred by s 11 of the Act.

In these circumstances, the crucial question for me is whether a material fact of a decisive character was not within the means of knowledge of the plaintiff until after the commencement of the period of 12 months before the claim was filed, on 2 August 2006. Although that was not the wording of the test in the Act, such a formulation of the relevant question in circumstances such as these has been approved.[1]
[1]Most recently in State of Queensland v Stephenson (2006) 80 ALJR 923 at 927. See also Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 at 334; Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R…

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 JMC v Moore

Details

AGLC: JMC v Moore [2006] QDC 418
Case: [2006] QDC 418
Decision Date: 21 December 2006

CaseChat Overview and Summary

The case of JMC v Moore was heard in the Federal Circuit Court of Australia. The plaintiff, JMC, sought compensation for personal injuries sustained in an incident involving the defendant, Moore. The primary dispute was whether the court should extend the limitation period for the plaintiff to bring their claim, as they had not initiated legal proceedings within the standard timeframe. The application for an extension was based on the plaintiff's claim that certain material facts were not known to them until a later date.

The court needed to determine whether the material facts that JMC claimed to have discovered late were indeed decisive in establishing their cause of action and whether these facts were known or ought to have been known to the plaintiff within the statutory limitation period. The court also had to assess if there were any exceptional circumstances that warranted an extension of the limitation period. The court's decision hinged on the interpretation of the relevant statutes governing limitation periods and the application of common law principles concerning the extension of time in personal injury claims.

The Federal Circuit Court found that the material facts in question were not decisive in establishing the plaintiff's cause of action and were known or ought to have been known to the plaintiff within the statutory limitation period. The court held that there were no exceptional circumstances present that would justify an extension of the limitation period. Consequently, the court dismissed the plaintiff's application for an extension of time and also dismissed the plaintiff's action. The court ordered the plaintiff to pay the defendant's costs of the action, including the costs of the application, to be assessed.

Orders

Orders of the court

Application dismissed, plaintiff’s action dismissed, order the plaintiff to pay the defendant’s costs of the action including the costs of the application to be assessed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

JMC v Moore [2006] QDC 418

Most Recent Citation

Fuller v Bunnings Group Ltd [2007] QDC 198

Cases Citing This Decision

Green v Taylor [2010] QDC 298
Citation 1 (Para 1)

…Moore [123] that the matter is to be approached in the way expressed by Keane JA in NF v State of Queensland :[124] [122][2007] QDC 056 at [11]. [123][2006] QDC 418. [124][2005] QCA 110 at [29]; see Greenhalgh v Bacas Training Limited and Ors [2007] QDC 056 at [20].…
Pilot v. Commissioner of Police and Anor [2008] QDC 41
Citation 2 (Para 1)

…As I said in JMC v Moore [2006] QDC 418, the distinction between the behaviour of a reasonable person with the background and understanding of the applicant for an extension of time, and the actual applicant, is perhaps a subtle one, and one which is unlikely to produce any difference in outcome in practice. I do…
Greenhalgh v Bacas Training Limited & Ors [2007] QDC 56
Citation 3 (Para 1)

…I looked at this question, and the effect of a recent decision of the Court of Appeal, in JMC v Moore [2006] QDC 418. For reasons I set out there, in my opinion the matter is to be approached in the way expressed by Keane JA in NF v State of Queensland [2005] QCA 110 at [29]:…
Fuller v Bunnings Group Ltd [2007] QDC 198
Citation 4 (Para 1)

…In JMC v Moore [2006] QDC 418 McGill SC DCJ said at paragraph 36:…

See all citing cases →

Cases Cited

State of Queensland v Stephenson [2006] HCA 20
Citation 1 (Para 1)

…such a formulation of the relevant question in circumstances such as these has been approved.[1] [1]Most recently in State of Queensland v Stephenson (2006) 80 ALJR 923 at 927. See also Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 at 334; Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306 at 307; Car…
Jocumsen v Thiess P/L [2005] QCA 198
Citation 2 (Para 1)

…e position is the same as that identified by Muir J in Carter , and may be contrasted with the position of the plaintiff in Jocumsen v Thiess Pty Ltd [2005] QCA 198, a case where an extension of the limitation period in respect of a psychiatric injury was based on psychiatric advice that as a result of his condit…
NF v State of Queensland [2005] QCA 110
Citation 3 (Para 1)

…by reference to what can reasonably be expected from the actual person in the circumstances of the applicant.”[7] [7] N. F. v State of Queensland [2005] QCA 110 at [29].…
Hopkins v State of Queensland [2004] QDC 21
Citation 4 (Para 1)

…I have discussed to some extent in Hopkins v State of Queensland [2004] QDC 21 at [37], [38] the question of whether a person can be unaware of the existence of a psychiatric injury, and noted that in some cases at least that would be possible, but that in view of the nature of post-traumatic stress disorder, it…
Watson v Poynter [2003] QCA 224
Citation 5 (Para 1)

…ions Pty Ltd (1984) 154 CLR 234; Berg v Kruger Enterprises Ltd [1990] 2 Qd R 301; Dick v University of Queensland [2000] 2 Qd R 476; Watson v Poynter [2003] QCA 224 at p 4. [14]Fleming “Law of Torts” (9 th edition 1998) p 29. I awarded damages of this kind, as part of compensatory damages, in Webster v Yasso [200…
Webster v Yasso [2002] QDC 206
Citation 6 (Para 1)

…at p 4. [14]Fleming “Law of Torts” (9 th edition 1998) p 29. I awarded damages of this kind, as part of compensatory damages, in Webster v Yasso [2002] QDC 206, where indeed it was the largest component of general damages; there was evidence of psychiatric injury as well in that case, although not as severe as i…
Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton & Ors [2001] QCA 335
Citation 7 (Para 1)

…that arises in this case is similar to the question that arose in Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton and Ors [2001] QCA 335. In that case also the appellant relied on the fact that she had suffered psychiatric injury and the fact that it had been caused by particular event…
Carlowe v Frigmobile P/L [1999] QCA 527
Citation 8 (Para 1)

…v Sunbeam Corporation Ltd [1988] 2 Qd R 325 at 334; Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306 at 307; Carlowe v Frigmobile Pty Ltd [1999] QCA 527 at [13].…
Johnson v DOCS [1999] NSWSC 1156
Citation 9 (Para 1)

…The plaintiff also relied on the New South Wales decision of Johnson v DOCS [1999] NSWSC 1156. In that case, like NF (supra) and Woodhead v Elbourne [2001] 1 Qd R 220, there was an applicant who had suffered a number of psychological traumas so that it may have been difficult to associate particular psychiatric cons…
Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17
Citation 10 (Para 1)

…been obtained at that earlier stage, although that is of no consequence in the context of this application. [13] Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; Berg v Kruger Enterprises Ltd [1990] 2 Qd R 301; Dick v University of Queensland [2000] 2 Qd R 476; Watson v Poynter [2003] QCA 224 at p 4. [14]Flem…
Healy v Femdale Pty Ltd [1993] QCA 210
Citation 11 (Para 1)

…This is consistent with the approach of Dawson J in Do Carmo (supra) at 259[8] and of the Court of Appeal in Healy v Femdale Pty Ltd [1993] QCA 210, where the court in a joint judgment said at p 5:…
[1973] AC 518 [1973] AC 518
Citation 12 (Para 1)

…e to do; otherwise the test would be subjective. [9]In this conclusion I respectfully differ from the view of Lord Reid in Central Asbestos Co v Dodd [1973] AC 518 at 530 that the test is subjective.…

Legislation Cited

Limitation of Actions Act 1974 (Qld) 30(1)(b), 31(2)
3 mentions (from Para 1)
Personal Injuries Proceedings Act 2002 (Qld)
1 mention (from Para 1)

CITATION:	JMC v Moore [2006] QDC 418
PARTIES:	JMC Plaintiff AND NOEL PALMER MOORE Defendant
FILE NO/S:	BD2258/06
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	21 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	27 October 2006
JUDGE:	McGill DCJ
ORDER:	Application dismissed, plaintiff’s action dismissed, order the plaintiff to pay the defendant’s costs of the action including the costs of the application to be assessed
CATCHWORDS:	LIMITATION OF ACTIONS – Personal injuries – extension of time – whether material facts decisive – whether known to plaintiff Limitation of Actions Act 1974 s 30(1)(b), 31(2). Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton and Ors [2001] QCA 335 – applied. Dick v The University of Queensland [2000] 2 Qd R 476 – followed. Do Carmo v Ford Excavation Pty Ltd (1984) 145 CLR 234 – applied. Healy v Femdale Pty Ltd [1993] QCA 210 – cited. Jocumsen v Thiess Pty Ltd [2005] QCA 198 – distinguished. Johnson v DOCS [1999] NSWSC 1156 – distinguished. NF v State of Queensland [2005] QCA 110 – followed. State of Queensland v Stephenson (2006) 80 ALJR 923 – applied. Watson v Poynter [2003] QCA 224 – followed.
COUNSEL:	D. J. Kelly for the plaintiff M. J. Drysdale for the defendant
SOLICITORS:	Parker Simmonds for the plaintiff Lang Hemming and Hall for the defendant