KBRV Resort Operations Pty Ltd v Chilcott

Reported Decision: 51 NSWLR 516

New South Wales

Court of Appeal

CITATION:	KBRV RESORT OPERATIONS PTY LIMITED t/as KINGFISHER BAY RESORT & VILLAGE v CHILCOTT [2001] NSWCA 116
FILE NUMBER(S):	CA 40568/99
HEARING DATE(S):	28 March 2001
JUDGMENT DATE:	3 May 2001
PARTIES :	KBRV Resort Operations Pty Limited t/as Kingfisher Bay Resort & Village - Appellant Sandra Dennice Chilcott (formerly Smith) - Respondent
JUDGMENT OF:	Sheller JA at 1; Ipp AJA at 43; Grove AJA at 44

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	20495/98
LOWER COURT JUDICIAL OFFICER :	Newman J

COUNSEL:	A Ashburner - Appellant A S Morrison SC/R J Wright - Respondent
SOLICITORS:	Ferguson Holz - Appellant Stacks - The Law Firm - Respondent
CATCHWORDS:	Practice - transfer of proceedings - meaning of 'proceedings' - where lack of jurisdiction - District Court Act 1973, s145(1), s145(3)
LEGISLATION CITED:	Choice of Law (Limitation Periods) Act 1993 Defamation Act 1992 (NZ) District Court Act 1973 Domestic Protection Act 1982 (NZ) Interpretation Act 1987 Limitation of Actions Act 1974 (Qld)
CASES CITED:	Anlaby v Praetorius (1888) 20 QBD 764 Cameron v Cole (1944) 68 CLR 571 China Ocean Shipping Co Ltd v PS Chellaram & Co Ltd (1990) 28 NSWLR 354 Commonwealth v Verwayen (1990) 170 CLR 394 Craig v Kanssen [1943] KB 256 Hamp-Adams v Hall [1911] 2 KB 942 Hewitson v Fabre (1888) 21 QBD 6 John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 John Pfeiffer Pty Ltd v Rogerson (2000) 74 ALJR 1109 Kronprinz, Owners of the cargo of v Owners of the Kronprinz (the Ardandhu) (1887) 12 AppCas 256 Mann v O'Neill (1997) 191 CLR 204 Munster v Lamb (1883) 11 QBD 588 Rawlinson v Oliver (1995) 3 NZLR 62 Smurthwaite v Hannay [1894] AC 494
DECISION:	Appeal dismissed with costs.

CA 40568/99

DC 5777/98

SHELLER JA

IPP AJA

GROVE AJA

KBRV RESORT OPERATIONS PTY LTD t/as KINGFISHER BAY RESORT & VILLAGE v CHILCOTT

The respondent began proceedings in the District Court in August 1998 against the appellant, a corporation incorporated in Queensland, to recover damages for injuries she had suffered in Queensland while a passenger in a vehicle owned by the appellant. However, as both parties later accepted, in the form of the District Court Act 1973 then in force, the District Court had no jurisdiction to hear the action. In September 1998, the limitation period under the Limitation of Actions Act 1974 (Qld), which applied to this claim, expired. In November 1998, the respondent filed a notice of discontinuance in the District Court, although this notice was technically defective.

In December 1998 the respondent began proceedings in the Supreme Court. The appellant filed a statement of defence pleading that the respondent was statute barred under the Queensland Act. The respondent then filed a notice of motion in the Supreme Court for a declaration that the notice of discontinuance was a nullity, that the District Court proceedings be transferred…