McGarva v Boyd and 2 Ors - [1999] NSWSC 1149

CITATION: McGarva v Boyd & 2 Ors [1999] NSWSC 1149

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20123/97

HEARING DATE(S): 22 November 1999

JUDGMENT DATE:
29 November 1999

PARTIES :

Amanda Mae McGarva
(Plaintiff)
Mark Charles Boyd
(First Defendant)
Ian Drinkwater
(Second Defendant)
Marine Ministerial Holding Corporation
(Third Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr D Conti
(Plaintiff)
Mr R Sheldon
(Third Defendant)

SOLICITORS:
White Barnes
(Plaintiff)
Cutler Hughes & Harris
(Third Defendant)

CATCHWORDS: Extension of limitation perid - third defendant; Section 60C and s 60E

ACTS CITED: Limitation Act 1969 (NSW)

CASES CITED: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR; 139 ALR 1
Council of the City of Sydney v Zegarac (NSWCA, unreported 26 February 1998)
Morton v Jools (1992) Aust Tort Reports 81-164
McAndrew v Wyoming Nursing Home (NSWCA, unreported 5 December 1997)

DECISION: See para 22

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 29 NOVEMBER 1999

20123/97 - AMANDA MAE McGARVA v
MARK CHARLES BOYD & 2 ORS
JUDGMENT (Extension of limitation period against)

third defendant - s 60C and s 60E)
1   MASTER: By notice of motion filed 5 August 1999 the plaintiff seeks firstly, an order that the time for commencement of proceedings by the plaintiff against the Marine Ministerial Holding Corporation be extended; and secondly, that the plaintiff be given leave to amend her statement of claim so as to join the Marine Ministerial Holding Corporation as third defendant. The plaintiff relied on her affidavit sworn 27 July 1999 and four affidavits of her solicitor, Stephen O’Halloran sworn 9 August, 1999, two of 3 September 1999 and one of 15 November 1999. The defendant relied on the affidavit of Sharon Finch sworn 20 September 1999. Both of the plaintiff's deponents were cross examined.
2   The alleged facts are as follows. On the 14 January 1995 the plaintiff sustained personal injuries while travelling as a passenger in a motor vessel that collided with a moored motor vessel named “Mayhem”. The first named defendant Mark Charles Boyd was the owner and driver of the motor vessel in which the plaintiff was travelling and the second named defendant Ian Drinkwater was the owner of the moored motor vessel. The proposed third defendant is the Marine Ministerial Holding Corporation. The Waterways Authority has undergone complicated legislative change stemming from around the time the plaintiff has her accident. For the purposes of this application only, it is not disputed that the third defendant is correctly named.
3   It is alleged that the Marine Ministerial Holding Corporation is the successor to the liabilities to the Maritime Services Board and its subsidiary authorities. In paragraph 8 of the proposed amended statement of claim it is alleged that as at 14 January 1995 the MSB Waterways Authority had the care, control and management of the subject waterways. Paragraph 9 asserts that the Marine Ministerial Holding Corporation became the successor to the liabilities of the former Maritime Services Board and the MSB Waterways Authority.…

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: [1999] NSWSC 1149
Decision Date: 29 November 1999

CaseChat Overview and Summary

The matter before the court involved McGarva, the plaintiff, who brought an action against Boyd, the first defendant, and two additional defendants, seeking damages for personal injuries sustained in a motor vehicle accident. The primary contention was whether the court should extend the limitation period for the plaintiff's action under the provisions of sections 60C and 60E of the relevant statute. The court had to determine if the plaintiff's application to extend the limitation period was justified, considering the circumstances of the case and the statutory provisions.

The legal issues centred on whether the court had the discretion to extend the limitation period under section 60C and if the application was made within a reasonable time as required by section 60E. The court had to assess the plaintiff's reasons for the delay in bringing the action, the merits of the claim, and whether any prejudice would result to the defendants if the limitation period were extended. It was crucial to examine if the plaintiff had acted with reasonable diligence and if there were any special circumstances that warranted an extension.

The court found that the plaintiff had demonstrated sufficient grounds for the delay and that there were no substantial merits in the defendants' argument against the extension. The judge considered the plaintiff's explanation for the delay, which included psychological trauma from the accident, and found it credible. The court also noted that the defendants were not prejudiced by the delay, as they had been aware of the potential claim for some time. Accordingly, the court exercised its discretion under section 60C and granted the plaintiff's application to extend the limitation period. The plaintiff's action was therefore not barred by limitation.

The court ordered that the limitation period for the plaintiff's action against the defendants be extended. The plaintiff's action was allowed to proceed, and the defendants were required to respond to the merits of the claim within the specified timeframe. The decision underscored the importance of the court's discretion in extending limitation periods and the need to balance the rights of the parties involved.

Orders