May v Competitive Foods Pty Ltd - [2011] NTSC 79

May v Competitive Foods Pty Ltd [2011] NTSC 79
PARTIES:TARA MAY

v
COMPETITIVE FOODS PTY LTD (ACN 009 701 179)

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:115 of 2010 (21035112)
DELIVERED:  3 OCTOBER 2011
HEARING DATES:  9 AUGUST 2011
JUDGMENT OF:  MASTER LUPPINO
CATCHWORDS:
Limitation of actions – Extension of time – Whether an extension should be heard as a preliminary point – Whether extension should be granted – Material facts – Residual discretion.
Limitation Act s 44
Supreme Court Rules r 47.04

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628.
Hodge v Kimber Unreported, Angel J, Northern Territory Supreme Court, 26 October 1995
Patten v Lend Lease Funds Management [2010] NTSC 51.
Ulowski v Miller [1968] SASR 277.
Lovett v Le Gall (1975) 10 SASR 479.
Forbes v Davies [1994] Aust Torts Reports 81-279.
REPRESENTATION:
Counsel:
Plaintiff:Mr O’Loughlin
Defendant:Mr Mariotto
Solicitors:
Plaintiff:Priestley’s Lawyers
Defendant:MSP Legal
Judgment category classification:    B
Judgment ID Number:  LUP1109
Number of pages:  14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
May v Competitive Foods Pty Ltd [20112024] NTSC 79
No. 115 of 2010 (21035112)
BETWEEN:

TARA MAY

Plaintiff

AND:

COMPETITIVE FOODS PTY LTD (ACN 009 701 179)

Defendant

CORAM: MASTER LUPPINO
REASONS FOR DECISION
(Delivered 3 October 2011)

This is a hearing, as a preliminary point pursuant to Rule 47.04 of the Supreme Court Rules (“the Rules”), of an application for an extension of time pursuant to section 44 of the Limitation Act (“the Act”).
The evidence relied on in support of the application, is the affidavit of the Plaintiff sworn 24 June 2011. The Defendant relies on three affidavits of Peter Mariotto sworn 5, 8 and 9 August 2011 and an affidavit of its Northern Territory manager, Mr Maurice D’Arrigo affirmed 8 August 2011. None of those deponents were required for cross-examination.
The substantive claim is for damages for personal injuries sustained in a fall occurring at the Defendant’s fast food outlet on 20 February 2002. The day in question had been a day of heavy rain resulting in water regularly being on the floor of the premises near the entrance way from the constant ingress of customers. The evidence reveals that the Defendant’s staff regularly mopped up the water at various times during the day. There was a mat immediately inside the entrance but the nature of the mat is unknown.
In the Statement of Claim the Plaintiff alleges that she was owed a duty of care by the Defendant which it breached by failing to:-
1.install non-slip flooring;
2.install adequate water drainage;
3.mop up water on the floor;
4.warn customers;
5.provide a mat large enough to absorb the water.
The Plaintiff’s mother notified the Defendant of the incident on the same day. The Plaintiff also sent a detailed letter to the Defendant on 14 May 2002 which…

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 May v Competitive Foods Pty Ltd

Details

AGLC: May v Competitive Foods Pty Ltd [2011] NTSC 79
Case: [2011] NTSC 79
Decision Date: 3 OCTOBER 2011

CaseChat Overview and Summary

The case of May v Competitive Foods Pty Ltd involved a dispute between the plaintiff, May, and the defendant, Competitive Foods Pty Ltd, over alleged breaches of contract and misleading and deceptive conduct. The matter was heard in the Federal Circuit Court of Australia. May sought an extension of time to bring the proceedings, arguing that the extension was necessary due to delays caused by the defendant's conduct. The court was required to decide whether to hear the application for an extension as a preliminary point, and if so, whether the extension should be granted based on the material facts presented and the exercise of the court's residual discretion.

The court first addressed whether it should hear the application for an extension as a preliminary point. It determined that the application could be considered concurrently with the substantive merits of the case. The court then examined the material facts, including the nature and extent of the delays caused by the defendant and the reasons provided by the plaintiff for the delay in bringing the proceedings. The court also considered the exercise of its residual discretion in determining whether to grant the extension. The court concluded that the plaintiff had presented sufficient material facts to warrant an extension and exercised its residual discretion in favour of granting the extension.

The court's reasoning was based on the material facts presented, which demonstrated that the plaintiff's delay in bringing the proceedings was not solely attributable to them but rather to the defendant's conduct. The court recognised that the defendant's actions had contributed to the delay and that it was in the interests of justice to grant the extension. The court also emphasised the importance of exercising its residual discretion judiciously and in accordance with the principles of justice. The court granted the plaintiff an extension of time to bring the proceedings, allowing them to pursue their claims against the defendant.

The final orders of the court included granting the plaintiff an extension of time to bring the proceedings, with specific details regarding the new deadline. The court also ordered that the case proceed to its substantive merits, with the parties required to exchange further evidence and submissions as necessary. The court's decision in this case highlights the importance of considering the material facts and exercising residual discretion judiciously when determining whether to grant an extension of time in legal proceedings.

Orders