Lauro v Battista - [2011] SASC 173

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
LAURO & ORS v BATTISTA
[2011] SASC 173
Judgment of The Honourable Justice Gray
14 October 2011
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - GENERALLY - POWER OF COURT TO EXTEND LIMITATION PERIOD
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - EXTENSION OF TIME IN PERSONAL INJURIES MATTERS - GENERALLY
Three appeals against decision of Magistrate granting the defendant an extension of time in which to pursue his counterclaim in each action - on 11 July 2006, an incident occurred leading to the plaintiffs issuing separate proceedings in the Magistrates Court with respect to alleged assaults - where the defendant defended each action and counterclaimed, seeking damages for assault arising from the same incident - where those counterclaims were lodged outside of the three year limitation period prescribed by section 36 of the Limitation of Actions Act 1936 (SA), and did not seek an extension of time - plaintiffs subsequently made applications seeking orders that the counterclaims be struck out - the defendant then sought leave in the Magistrates Court to amend the counterclaims to seek an extension of time in each action, and relied on section 48(3)(b)(ii) of the Limitations of Actions Act, namely that the defendant's failure to institute the counterclaims within time resulted from representation or conduct on the part of the plaintiffs - where on appeal it was conceded that it was inappropriate for the Magistrate to have ordered that there be grants of extension of time where there was no evidence before the Court from the defendant to support such orders - whether the defendant should be allowed to amend his counterclaims to seek extensions of time.
Held: appeals allowed - the question of whether an extension should be granted required evidence to be put before the Court, and to this extent the appeals should be allowed - however, the material before the Magistrate established conduct on the part of the plaintiffs to allow the conclusion that the defendant has an arguable case for a grant of extension of time to pursue his counterclaims under section 48(3)(b)(ii) of the Limitation of Actions Act - accordingly, in each proceeding the defendant should be given leave to amend his counterclaim to seek an extension of time in the terms proposed.
Limitation of Actions Act 1936 (SA) s 36, s 48(3)(b), referred to.
Johnson v South Australia (1980) 26 SASR 1; Finlay v Silcon Industrial Pty Ltd (2003) 229 LSJS 14; State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Ulowski v Miller [1968] SASR 277, considered.

LAURO & ORS v BATTISTA
[2011] SASC 173
Magistrates Appeal
GRAY J:
Introduction

These three appeals from decisions of a Magistrate raise identical issues. The plaintiff and appellant in each proceeding are respectively Natale Lauro, Eric Lauro and Silvana Lauro. The defendant and respondent in each proceeding is Vincenzo Battista. On…

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 Lauro v Battista

Details

AGLC: Lauro v Battista [2011] SASC 173
Case: [2011] SASC 173
Decision Date: 14 October 2011

CaseChat Overview and Summary

The appeals in Lauro v Battista involved three separate cases brought by the plaintiffs, Natale Lauro, Eric Lauro, and Silvana Lauro, against the defendant, Vincenzo Battista, in the Magistrates Court. The plaintiffs brought claims against the defendant for alleged assaults stemming from an incident that occurred on 11 July 2006. The defendant, in turn, counterclaimed for damages arising from the same incident. However, these counterclaims were filed outside the statutory limitation period of three years as prescribed by section 36 of the Limitation of Actions Act 1936 (SA). Consequently, the plaintiffs applied to have the counterclaims struck out. In response, the defendant sought to amend the counterclaims to include a request for an extension of time under section 48(3)(b)(ii) of the Act, arguing that the plaintiffs' conduct justified the extension.

The legal issues before the court were twofold. Firstly, whether the defendant should be permitted to amend his counterclaims to seek an extension of time, given that such extensions were not initially requested. Secondly, if such an amendment was permissible, whether the Magistrate had the authority to grant the requested extensions without additional evidence supporting the defendant's claim. The court had to determine if the Magistrate's decision to grant the extensions was appropriate and whether the defendant had an arguable case for such extensions based on the plaintiffs' conduct.

The court found that while the Magistrate erred in granting the extensions without sufficient evidence, the material before the court did establish conduct on the part of the plaintiffs that could support a claim for an extension of time under section 48(3)(b)(ii) of the Limitation of Actions Act. Consequently, the court allowed the appeals but also ruled that the defendant should be granted leave to amend his counterclaims to seek an extension of time in each proceeding, subject to the amendments being made within seven days. This decision balanced the procedural requirements of the court with the equitable considerations of the defendant's position.

In conclusion, the appeals were allowed, and the orders of the Magistrate granting extensions of time were set aside. However, the defendant was permitted to amend his counterclaims to seek extensions of time within the specified timeframe. The court's ruling ensured that the procedural integrity of the court was maintained while also considering the equitable position of the defendant.

Orders

Orders of the court

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Background

Background to the litigation

These three appeals from decisions of a Magistrate raise identical issues. The plaintiff and appellant in each proceeding are respectively Natale Lauro, Eric Lauro and Silvana Lauro. The defendant and respondent in each proceeding is Vincenzo Battista. On 2 March 2011, a Magistrate granted the defendant an extension of time in which to pursue his counterclaim in each action. These appeals challenge the orders granting extensions of time. They also challenge the defendant’s entitlement to amend his counterclaims to seek an extension of time.Background Facts On 11 July 2006, an incident occurred leading to the plaintiffs issuing separate proceedings in the Magistrates Court with respect to alleged assaults. The defendant defended each action and counterclaimed, seeking damages for assault arising from the same incident. The counterclaims were lodged outside of the three year limitation period prescribed by section 36 of the Limitation of Actions Act 1936 (SA). The counterclaims did not seek an extension of time. On 26 November 2010, following the Magistrate drawing attention to the question of the Limitation of Actions Act, the plaintiffs made applications seeking orders that the counterclaims be struck out. The defendant then sought leave in the Magistrates Court to amend the counterclaims to seek an extension of time in each action. Before the Magistrate, the defendant submitted that the application to amend the counterclaims should be granted and further submitted that it was appropriate to make an order extending time in each action pursuant to section 48 of the Limitation of Actions Act. The defendant did not seek to argue that he had discovered a material fact to justify his claim for extensions of time.[1] Rather, the defendant relied upon section 48(3)(b)(ii) – that the defendant’s failure to institute the counterclaims within time resulted from representations or conduct on the part of the plaintiffs.[1] See Limitation of Actions Act 1936 (SA) section 48(3)(b)(i). The Magistrate recorded the uncontested background circumstances in the following terms:On 10 July 2009 solicitors for the plaintiffs issued proceedings in the Magistrates Court claiming damages on behalf of each plaintiff in the amount of $40,000.Rule 28 requires that an action filed in the Magistrates Court must be served within one year of the date of filing the claim. In each case the claims were not served until the last day for service under Rule 28, namely 9 July 2010. A proof of service was not filed however and the Registrar acting under Rule 28 dismissed the claims.On 6 September 2010 solicitors acting on behalf of the plaintiffs filed applications seeking orders that the actions be reinstated.On 22 September I directed that the actions be reinstated and extended the time for the defendant to file a defence in each action.On 27 September 2010 the defendant filed a defence and a counterclaim in each action.The matter came on for an initial directions hearing on 3 November 2010. I noted that in filing the counterclaims the defendant had not sought any extension of time to issue such proceedings. I adjourned the directions hearing until 1 December 2010 to enable the solicitors for the parties to take further instructions on the issue.On 26 November the plaintiffs’ solicitors filed an application seeking the counterclaim be struck out. Contemporaneously the defendant’s solicitors filed an affidavit annexing a proposed amended defence and counterclaim and foreshadowed an application seeking an extension of time to bring proceedings.The application to strike out the counterclaim was adjourned to 1 December 2010 and subsequently to 24 January 2011 for further argument. …

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I consider that it is arguable that the notice of intention to sue served on the defendant on 22 January 2009 was never intended to be an absolute or unequivocal notice that the plaintiffs would proceed with an action for common law damages. This is supported by the fact that following the service of the notice, the plaintiffs made an election to continue with the common law damages proceedings. The notice of intention did no more than express an intention. It was not a commitment. The later conduct of the plaintiffs in making an election to sue only after other relevant events makes this clear.Conclusion In the circumstances, the order of the Magistrate granting extensions of time should be set aside. However, in each proceeding the defendant should be given leave to amend his counterclaim to seek an extension of time in the terms proposed. The amendments should be made within seven days.

Ratio Decidendi

Legal Principle Established

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