Lee v Omni Leisure Operations Pty Ltd - [2008] VSC 272

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 6908 of 2007

ADRIAN FRANCIS LEE	Plaintiff
v
OMNI LEISURE OPERATIONS PTY LTD (ACN 079 630 603)	Defendant

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2008
DATE OF JUDGMENT:	16 July 2008
CASE MAY BE CITED AS:	Lee v Omni Leisure Operations Pty Ltd
MEDIUM NEUTRAL CITATION:	[2008] VSC 272

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LIMITATION OF ACTIONS – personal injury claim arising out of incident in Queensland – proceeding not commenced within limitation period– application for extension of time for commencement of proceeding – statute confers general power to extend time – power to be exercised judicially – circumstances relevant to exercise of power – inordinate delay due to conduct of lawyers– no prejudice to defendant – extension allowed.

Personal Injuries Proceeding Act 2002 (Qld) s. 59

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Philbrick SC with Mr B Charrington	Winn Legal
For the Defendant	Mr D Aghion	Moray & Agnew

HIS HONOUR:

On 19 November 2001, the plaintiff, Adrian Francis Lee, and his family, were on holiday in Queensland. There they visited the Dreamworld Theme Park conducted by the defendant, Omni Leisure Operations Pty Ltd (“Omni”). Having decided to take a ride on the Mine Ride, Mr Lee was standing in a stationary rail car when it was struck by another rail car. As a consequence, he says, he has suffered serious injury to his spine.

Following his return to Victoria, Mr Lee, on 24 June 2002, retained as his lawyers, Beck Sheahan Quinn & Kirkham. His matter was handled by a solicitor employed by that firm, Louise Sarah Henby D'Wynn. Ms Henby D'Wynn, apart from a five-month period from 22 November 2004, continued to manage the file as an employee of that firm[1] until 30 June 2005 and thereafter as a solicitor acting as a principal under the firm name of Winn Legal.
[1]On 4 June 2004 the firm changed its name to Beck Legal.

Regrettably Mr Lee was not well served by Ms Henby D'Wynn and by most of the other lawyers that acted for him. Counsel on his behalf described their conduct of the matter as: "marked or punctuated right through by ineptitude and by bungling and by delay after delay." A notable exception to this sorry list was Mr Charrington of the Queensland bar who continues to act for Mr Lee.[2]
[2]Mr Philbrick, who appeared as senior counsel for Mr Lee, had not previously acted for him in this matter.

It was common ground before me that Mr Lee's claim was governed by the substantive law of Queensland. This law included the Limitation of Actions Act1974 s. 11, pursuant to which his cause of action expired after three years,[3] that is, in November 2004. By s. 31 of that Act, there is a limited power to extend this limitation period. In fact, Mr Lee did not commence a proceeding until 27 June 2007, nearly six…

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.

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Details

Case: [2008] VSC 272
Decision Date: 16 July 2008

CaseChat Overview and Summary

Lee commenced proceedings against Omni Leisure Operations Pty Ltd, seeking damages for personal injuries sustained in an incident occurring in Queensland. The dispute centred on whether the court should grant an extension of the limitation period for initiating the action, as the proceedings were not commenced within the prescribed timeframe. The matter was heard in the District Court of Queensland. The central legal issue before the court was whether the statute conferring a general power to extend the time for commencing proceedings should be exercised in this instance, given the inordinate delay due to the conduct of Lee’s lawyers. The court had to consider the circumstances surrounding the delay and whether there was any prejudice to the defendant, Omni Leisure Operations Pty Ltd, as a result of the extension.

The court noted that the statute conferred a broad power to extend the limitation period, which must be exercised judicially. In making this determination, the court considered various factors, including the nature and extent of the delay, the reasons for the delay, and whether there was any prejudice to the defendant. The court found that while the delay was due to the inordinate actions of Lee's lawyers, there was no prejudice to the defendant, Omni Leisure Operations Pty Ltd. Given the circumstances, the court was satisfied that the power should be exercised in this case to grant the extension. The court concluded that it was appropriate to allow the extension of time, considering the absence of prejudice to the defendant and the overall fairness of the situation.

The court's decision allowed the extension of time for Lee to commence the personal injury proceedings against Omni Leisure Operations Pty Ltd. This decision underscores the principle that while the limitation period is a significant legal deadline, the court retains the discretion to extend the time under the relevant statute when justified by the circumstances. The court's ruling highlighted the importance of the absence of prejudice to the defendant and the fairness of the situation in exercising this judicial power. The court's decision was in line with the statutory provision and the judicial approach to the equitable exercise of the time extension power.

Orders