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Mirkazemi v Manns

Mirkazemi v Manns

Case [2009] TASSC 91 14 October 2009

Limitation Periods

Amendment

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Civil Litigation & Procedure

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[2009] TASSC 91

COURT: SUPREME COURT OF TASMANIA

CITATION: Mirkazemi v Manns [2009] TASSC 91

PARTIES:  MIRKAZEMI, Monna by her Litigation Guardian
  Pedram Mirkazemi
  v
  MANNS, STEPHEN
  McGRATH, Alby William Michael

MIRKAZEMI, Pedram
  v
  MANNS, Stephen
  McGRATH, Alby William Michael

FILE NO/S:  895/2001 and 156/2003
DELIVERED ON:  14 October 2009
DELIVERED AT:  Hobart
HEARING DATE:  30 September and 1 October 2009
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Procedure – Supreme Court Procedure – Tasmania – Practice under Rules of Court – Amendments – Statement of claim – Amendment introducing statute barred cause of action – Exercise of discretion – Relevant considerations.
Aon Risk Services Australia Limited v Australian National University (2009) HCA 27 referred to.
Supreme Court Rules 2000 (Tas), r427.
Aust Dig Procedure [276]

REPRESENTATION:

Counsel:
             Plaintiffs:  L K Mackey
             Defendants:  K E Read
Solicitors:
             Plaintiffs:  Ogilvie Jennings
             Defendants:  Hunt & Hunt

Judgment Number: [2009] TASSC 91
Number of paragraphs: 35

Serial No 91/2009
File No's 895/2001 & 156/2003

MONNA MIRKAZEMI by her Litigation Guardian PEDRAM MIRKAZEMI v STEPHEN MANNS and ALBY WILLIAM MICHAEL McGRATH
PEDRAM MIRKAZEMI v STEPHEN MANNS and
ALBY WILLIAM MICHAEL McGRATH

REASONS FOR JUDGMENT HOLT AsJ
14 October 2009

The application

This is an application for an order consolidating two actions in which damages for personal injury arising out of the same motor vehicle accident are claimed. There is also an application for leave to amend by adding the following paragraphs to what will be the statement of claim in the consolidated action:

"18At all material times and prior to the death of the deceased wife and mother the First and Second named Plaintiffs were dependent on the deceased wife and mother.
19The First and Second named Plaintiffs make claim against the First and Second named Defendants pursuant to the Fatal Accidents Act for their loss of dependency resulting from the death of the deceased wife and mother.
PARTICULARS FATAL ACCIDENTS CLAIM
To be provided."

The circumstances leading to the making of the application

Pedram Mirkazemi's 36 year old wife and 13 year old son were killed in a motor vehicle accident on Procters Road, Dynnyrne, on the afternoon of 14 December 2000. The couple's five year old daughter, Monna, was seriously injured. Mrs Mirkazemi's car was hit by a furniture removalist's truck, control of which had been lost as it came down the hill. Mrs Mirkazemi had been the major income earner in the household. She was a pharmacist and the sole proprietor of the business Magnet Court Chemmart. She had an annual income of about $100,000 per year. Mr Mirkazemi's income was about $20,000 to $30,000 per year.

Mr Mirkazemi promptly engaged a solicitor. He met with his lawyer on 3 January 2001 and instructions were issued to pursue all available avenues for compensation. On 7 February 2001 the solicitor wrote to the defendants' insurer. The letter included the following:

"As a result of this accident Soheila Mirkazemi was killed and I have instructions to make a claim on behalf of her spouse Pedram…

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 Mirkazemi v Manns

Details

AGLC: Mirkazemi v Manns [2009] TASSC 91
Case: [2009] TASSC 91
Decision Date: 14 October 2009

CaseChat Overview and Summary

The matter of Mirkazemi v Manns came before the Supreme Court of Tasmania, where the primary dispute involved the amendment of a statement of claim to include a cause of action that had become statute-barred. The plaintiff sought to amend the statement of claim to incorporate a new cause of action that had accrued after the initial claim was filed, but before the limitation period had expired. The defendant opposed the amendment on the grounds that it was an attempt to circumvent the statutory limitation period.

The court was tasked with determining whether the plaintiff's proposed amendment was permissible under the rules of court, and if so, whether the exercise of discretion to allow the amendment was appropriate. The key issues centred around the interpretation of the relevant rules concerning amendments to statements of claim and the overarching principles governing the discretion to allow such amendments. The court had to consider the balance between the need for fair and just resolution of disputes and the enforcement of statutory limitation periods.

In examining the matter, the court noted that while amendments to statements of claim are generally permissible, they are not absolute rights. The court must consider various factors, including the timeliness of the proposed amendment, the potential prejudice to the opposing party, and the availability of other legal remedies. The court held that the proposed amendment in this case introduced a cause of action that had become statute-barred and would effectively extend the limitation period beyond what was permitted by law. The court found that permitting such an amendment would undermine the statutory protection afforded by the limitation period. Consequently, the court exercised its discretion to refuse the amendment.

Orders