| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2015 02359
| IAN MACKENZIE | Plaintiff |
| v | |
| POSITIVE CONCEPTS PTY LTD | First Defendant |
| and | |
| AREAS OF HOSPITALITY PTY LTD | Second Defendant |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 May 2016 |
DATE OF JUDGMENT: | 19 May 2016 |
CASE MAY BE CITED AS: | Mackenzie v Positive Concepts Pty Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2016] VSC 259 |
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PRACTICE AND PROCEDURE – Application for an extension of time to bring an action for negligence and breach of statutory duty – Plaintiff suffered serious injuries following an assault – Whether just and reasonable to extend time – Failure of previous solicitors to advise in respect of time limits and potential common law rights – Credible and reasonable explanation for delay on part of plaintiff – Defendants unlikely to suffer material prejudice in all the circumstances – Relevance of potential claim against previous solicitors – Limitation of Actions Act 1958 ss 5(1)(a), 23A - Tsiadis v Patterson (2001) 4 VR 114 and Davies v Nilsen [2015] VSC 584 relied upon – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC and Ms J Frederico | Maurice Blackburn |
| For the First Defendant | Mr S Smith | IDP Lawyers |
| For the Second Defendant | Mr D McWilliams | HWL Ebsworth Lawyers |
HIS HONOUR:
Introduction
The plaintiff was the victim of an assault which occurred on 6 October 2002.
At the time of the assault the plaintiff was working as a security officer at the Castello Berwick Springs Hotel (‘the Hotel’). He was employed by the first defendant. The Hotel was operated by the second defendant.
On 12 May 2015, the writ in this proceeding was issued for the plaintiff. By the statement of claim it is alleged that there was negligence and breach of statutory duty by each defendant which was a cause of the assault and the plaintiff’s injuries.
The defence of the first defendant was filed on 7 July 2015. The defence of the second defendant was filed on 6 October 2015. Each defendant pleads that the plaintiff’s cause of action against it has expired by reason of the provisions of s 5(1) of the Limitation of Actions Act 1958 (‘the LAA’).
The plaintiff agrees that the limitation period has expired. Relying on s 23A of the LAA, the plaintiff has applied by summons dated 22 March 2016 for an order that the time to bring this proceeding against each defendant be extended to 12 May 2015.
Applicable principles
Pursuant to s 5(1)(a) of the LAA, the plaintiff had six years from the date of the assault, being 6 October 2002, within which to commence proceedings. Section 134ABA of the Accident Compensation Act 1985 (‘the ACA’) operates to extend the limitation period. For the plaintiff, it was argued that the limitation period finally expired on 26 December 2010. The second defendant argued that the period expired on 28 May 2010. Nothing turns on…
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- AGLC
- Mackenzie v Positive Concepts Pty Ltd [2016] VSC 259
- Case
- [2016] VSC 259
- Decision Date
CaseChat Overview and Summary
The primary legal issue for the court was whether it was appropriate to grant an extension of time under the Limitation of Actions Act 1958. The court had to consider the factors outlined in Tsiadis v Patterson and Davies v Nilsen, which emphasised the need for a credible and reasonable explanation for the delay, the likelihood of prejudice to the defendants if the extension were granted, and the availability of alternative remedies. The plaintiff argued that their previous solicitors' failure to advise them was a credible explanation for the delay, and that the defendants were unlikely to suffer material prejudice given the circumstances.
The court found that the plaintiff's explanation for the delay was credible and reasonable, given the failure of their previous solicitors to provide appropriate advice. The court also considered that the defendants were unlikely to suffer significant prejudice, as they were already aware of the incident and had been served with a letter of demand. The potential claim against the previous solicitors was also noted as a relevant factor, as it could provide an alternative remedy for the plaintiff's loss. Ultimately, the court held that it was just and reasonable to grant the extension of time, and the plaintiff's application was successful.
The court ordered that the plaintiff be granted an extension of time to bring the action for negligence and breach of statutory duty against the defendants. This decision highlights the importance of timely legal advice and the potential consequences of failing to provide such advice. The court's decision also underscores the need for a balanced approach when considering applications for extensions of time, taking into account the circumstances of each case and the availability of alternative remedies.
Orders
Orders of the court
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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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