Laws v Web Scaffolding

[2010] ACTCA 3

SHANE MICHAEL LAWS v WEB SCAFFOLDING PTY LTD
[2010] ACTCA 3 (23 February 2010)

APPEAL – whether extension of time should be granted
LIMITATION OF ACTIONS – personal injury – limitation period expired – proceedings struck out – onus on plaintiff to demonstrate just and reasonable to extend time – defendant bears evidential onus to establish actual prejudice if wishing to rely on actual prejudice

Limitation Act 1985 (ACT), ss 11, 36
Court Procedures Rules 2006 (ACT), r 75

Sessions v Phengsiaroun [2008] ACTSC 132
Brisbane South Regional Health Authority v Taylor (1966) 186 CLR 541

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 16 – 2009
No. SCC 520 of 2007

Judges:         Higgins CJ, Refshauge and North JJ
Court of Appeal of the Australian Capital Territory
Date:            23 February 2010

IN THE SUPREME COURT OF THE       )          No. ACTCA 16 - 2009
  )          No. SCC 520 of 2007
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SHANE MICHAEL LAWS

Appellant

AND:WEB SCAFFOLDING PTY LTD

ACN 069 023 392

Respondent

ORDER

Judges:  Higgins CJ, Refshauge & North JJ
Date:  23 February 2010
Place:  Canberra

THE COURT ORDERS THAT:

1. The decision of the primary judge of 10 July 2009 be set aside and the decision of the Master of 5 June 2009 be restored including the order as to costs.

1. The defendant pay the plaintiff’s costs of the appeal to the primary judge and to this Court.

IN THE SUPREME COURT OF THE       )          No. ACTCA 16 - 2009
  )          No. SCC 520 of 2007
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SHANE MICHAEL LAWS

Appellant

AND:WEB SCAFFOLDING PTY LTD

ACN 069 023 392

Respondent

Judges:  Higgins CJ, Refshauge and North JJ
Date:  23 February 2010
Place:  Canberra

REASONS FOR DECISION

THE COURT:

1. This was an application for leave to appeal from a decision of the primary judge handed down on 10 July 2009.  His Honour allowed an appeal from a decision of Master Harper who, on 5 June 2009, had ordered that the time for the plaintiff (appellant) to commence proceedings for damages for personal injury be extended to 1 August 2007.  Leave is required for the plaintiff to appeal against the primary judge’s orders upholding that appeal and dismissing the application for extension of time.

1. The originating claim was filed on 1 August 2007. It alleged that the plaintiff suffered injury at work in consequence of the negligence of his employer. That injury occurred on or about 29 January 2001. It followed that the defendant could choose to plead a defence pursuant to s 11 Limitation Act 1985 (ACT). It did so on 5 December 2007.

1. Section 36 of that Act confers a discretion on the court to extend the period of limitation…