Matthew John Morris v Crest Kitchens Pty Ltd - [2009] ACTSC 96

MATTHEW JOHN MORRIS v CREST KITCHENS PTY LTD
[2009] ACTSC 96 (24 August 2009)

LIMITATION OF ACTIONS – personal injury – claim against employer – workers’ compensation claim previously accepted – action commenced three months out of time – satisfactory explanation for delay – no significant prejudice to defendant – justice favours grant of extension – extension granted

Limitation Act (1985) ss 36,
Court Procedures Rules (2006) r75

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Nguyen v Jajic [2007] ACTSC 12
Web Scaffolding Pty Limited (CAN 069 023 492) v Laws [2009] ACTSC 79

No. SC 230 of 2009

Judge: Master Harper
Supreme Court of the ACT

Date: 24 August 2009

IN THE SUPREME COURT OF THE       )
  )          No. SC 230 of 2009
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:MATTHEW JOHN MORRIS
Plaintiff

AND:CREST KITCHENS PTY LTD (ACN 008 621 225)
Defendant

ORDER

Judge:  Master Harper
Date:  24 August 2009
Place:  Canberra

THE COURT ORDERS THAT:

The period within which this action may be brought be extended to 19 February 2009

The plaintiff pay the costs of the application

Those costs not be recoverable until the conclusion of the substantive proceeding

This is an application for an extension of time to commence proceedings in an action for damages for personal injury by an employee against an employer. The plaintiff alleges an injury in the course of his employment on 9 November 2005. He commenced the present action on 19 February 2009, some three months out of time. A defence was filed on 26 June 2009 pleading the bar imposed by section 16A of the Limitation Act 1985. The present application was filed on 7 July, asking the Court to exercise its discretion under section 36 of that Act to extend the limitation period. The defendant opposes the application.

The evidence in support of the application consists of two affidavits by the plaintiff, an affidavit by his solicitor Mr Andrew Finlay, and statements signed in April 2009 by Mr Brad Hammond and Mr Miguel Gregory. Mr Hammond and Mr Gregory were fellow employees of the plaintiff at the time of his injury.

The plaintiff deposes that during 2005 he was a third-year apprentice cabinetmaker employed by the defendant. He says that he injured his lower back in the course of lifting and assembling cupboards weighing about 135 kilograms, at the premises of a customer. He made a claim for workers’ compensation with Allianz Australia Insurance Limited. By January 2006 the insurer had put in place what was described as a personal injury plan, evidently aimed at the plaintiff’s rehabilitation.

The plaintiff says that he saw a solicitor on 3 February 2006. This seems to have been because a dispute had arisen with the insurer about payment of medical expenses. The plaintiff says that he knew nothing about any possible entitlement to sue for damages under the general law as opposed to making a claim for workers’ compensation. The solicitor did not raise this with him. He…

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.

Keep reading for free

Create a free CaseChat account to read Matthew John Morris v Crest Kitchens Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] ACTSC 96
Decision Date: 24 August 2009

CaseChat Overview and Summary

Matthew John Morris brought an action against Crest Kitchens Pty Ltd for personal injury sustained during the course of his employment. The claim was made three months outside the limitation period, but the plaintiff sought an extension of time to bring the action. The dispute came before the court, which was required to determine whether the extension should be granted. The primary legal issues the court needed to address were whether the plaintiff provided a satisfactory explanation for the delay and whether the defendant had suffered significant prejudice as a result of the delay. Additionally, the court considered whether the principles of justice favoured granting an extension.

The court found that the plaintiff had provided a satisfactory explanation for the delay, and there was no evidence of significant prejudice to the defendant. The plaintiff had acted promptly upon discovering the injury and had sought medical advice. The delay in commencing the proceedings was due to the plaintiff's understandable confusion about the applicable limitation period. The court also noted that the principles of justice favoured granting the extension, as the plaintiff had taken steps to mitigate the consequences of the delay. Consequently, the court granted the application for an extension of time, allowing the plaintiff to bring the action by 19 February 2009. The plaintiff was ordered to pay the costs of the application, which would not be recoverable until the conclusion of the substantive proceeding.

Orders

Orders of the court

1. The period within which this action may be brought be extended to 19 February 2009

2. The plaintiff pay the costs of the application

3. Those costs not be recoverable until the conclusion of the substantive proceeding

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.