Muir v Franklins Ltd

[2001] QCA 173

SUPREME COURT OF QUEENSLAND

CITATION:

Muir v Franklins Limited [2001] QCA 173

PARTIES:

CHRISTINE ANNE MUIR
(plaintiff/respondent/respondent)
v
FRANKLINS LIMITED ACN 000 929 902
(defendant/applicant/appellant)

FILE NO:

Appeal No 9504 of 2000
DC No 347 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 May 2001

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2001

JUDGES:

McMurdo P, Thomas JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.  The application for leave to appeal is granted.
2.  The appeal is dismissed.
3.  The applicant is to pay the respondent's costs of the application and the appeal to be assessed.

CATCHWORDS:

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – PERSONAL INJURIES ACTION – respondent  successful in the District Court in extending the period of limitation in an action for personal injuries against the applicant – applicant sought leave to appeal – whether error in fact finding and evaluation of evidence – whether the onus  misapplied as to the question of prejudice to the applicant – time at which prejudice considered.

Limitation of Actions Act 1974 (Qld), s30, s31

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, followed
Carlowe v Frigmobile Pty Ltd [1999] QCA 527; Appeal No 1512 of 1999, 22 December 1999, considered
Dick v University of Queensland [1999] QCA 474; Appeal No 3204 of 1999, 12 November 1999, considered
Pizer v Ansett Australia Ltd [1998] QCA 298; Appeal No 6807 of 1998, 29 September 1998, considered
Sugden v Crawford [1989] 1 QdR 683, considered
Woodman v Maher [1999] QCA 233; [2001] 1 QdR106, considered

COUNSEL:

RJ Douglas SC with RM Treston for the applicant
T Matthews with PB de Plater for the respondent

SOLICITORS:

McInnes Wilson for the applicant
Boyce Garrick for the respondent

1. McMURDO P:  I am satisfied the primary judge's finding, that a material fact of a decisive character relating to the right of action, was not within the means of knowledge of the claimant[1] by 22 October 1997, was open on the evidence for the reasons given by Thomas JA and Mullins J.

   [1]S 31(2), Limitation of Actions Act 1974.

1. The discretion under s 31(2) Limitation of Actions Act 1974 (Qld) must be exercised afresh because of the primary judge's error in exercising that discretion.

1. I am also satisfied that, for the reasons given by Mullins J, the claimant has shown that grounds exist for exercising that discretion in her favour; the applicant will not be materially prejudiced by the extension of time under s 31(2) Limitation of Actions Act 1974 (Qld) and the justice of the case requires the extension: see Brisbane South Regional Health Authority v Taylor.[2]

   [2](1996) 186 CLR 541, 544, 547, 554, 568.

1. I agree with the orders proposed by Mullins J.

1. THOMAS JA:  I have the advantage of having read the proposed…