Mackenzie v Positive Concepts Pty Ltd - [2016] VSC 259

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…

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 Mackenzie v Positive Concepts Pty Ltd

Details

AGLC: Mackenzie v Positive Concepts Pty Ltd [2016] VSC 259
Case: [2016] VSC 259
Decision Date: 19 May 2016

CaseChat Overview and Summary

In the case of Mackenzie v Positive Concepts Pty Ltd, the plaintiff sought an extension of time to bring an action for negligence and breach of statutory duty against the defendants, who were responsible for the security at a venue where the plaintiff was assaulted. The plaintiff suffered serious injuries during the incident and was initially represented by solicitors who failed to advise them about the relevant time limits and potential common law rights. The Supreme Court of Victoria was tasked with determining whether it was just and reasonable to grant an extension of time for the plaintiff to commence the legal action against the defendants.

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