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Murdock v Lipman

Murdock v Lipman

Case [2012] NSWSC 983 24 August 2012

Limitation Periods

Compensatory Damages

Substitution of Parties

Civil Litigation & Procedure

Insurance Law

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Supreme Court

New South Wales

Medium Neutral Citation: Murdock v Lipman [2012] NSWSC 983
Hearing dates: 3 August 2012
Decision date: 24 August 2012
Before: McCallum J
Decision:
Application under s 60C of the Limitation Act 1969 for an order extending the limitation period for the cause of action against the first and second defendants granted
Determination of application for leave under s 151D(2) of the Workers Compensation Act 1987 to commence proceedings against the insurer standing in the shoes of the deregistered employer deferred pending further hearing

Catchwords:
LIMITATION OF ACTIONS - personal injury claim - whether just and reasonable to extend limitation period - where presumptive prejudice largely ameliorated by availability of statements obtained during WorkCover investigation

LIMITATION OF ACTIONS - recovery under s 601AG of the Corporations Act - where insurer substituted for deregistered insured as defendant in personal injury proceedings after expiration of second bar - whether jurisdiction to extend limitation period as against insurer
WORKERS COMPENSATION - application for leave to bring proceedings for damages out of time - whether fair and just to grant leave - whether employer precluded from recovering contribution from other tortfeasors - whether prejudice arising due to claims by employer for indemnity under s 151Z(1)(d) being statute-barred
Legislation Cited: Corporations Act 2001
Law Reform (Miscellaneous Provisions) Act 1946
Limitation Act 1969
Workers Compensation Act 1987
Cases Cited: Almario v Allianz Australia Workers Compensation (NSW) Insurance Ltd [2005] NSWCA 19; (2005) 62 NSWLR 148
AMP Capital Investors Ltd & Ors v Parsons Brinckerhoff Australia Pty Ltd & Ors [2010] NSWSC 129
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Carey v Australian Broadcasting Corporation [2012] NSWCA 176
Charlton v Dickie (1987) 13 Ch D 160
Creevey v Barrois [2005] NSWCA 264
Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207
J Blackwood & Son Ltd v Skilled Engineering Ltd [2008] NSWCA 142
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 at [20].
South Sydney Area Health Service v Gadiry [2002] NSWCA 161; (2002) 54 NSWLR 495
State of New South Wales v Judd [2004] NSWCA 355
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 7(1986) 160 CLR 16
Stone v ACN 000 337 940 Pty Ltd (2008) 68 ACSR 242
Sydney City Council v Zegarac (1998) 43 NSWLR 195
Taouk v Maroun Taouk & Anor [2010] NSWCA 372
Tekno Ceramics Pty Ltd v Milat [2003] NSWCA 254
Turagadamudamu v PMP Limited [2009] NSWCA 120; (2009) 75 NSWLR 397
Category: Interlocutory applications
Parties: Harold Murdock (plaintiff)
Lipman Pty Limited (first defendant)
Australis Group (Underwriting) Pty Limited (second defendant)
Gallagher Bassett Services New South Wales Pty Ltd (proposed third defendant)
Representation: R Sheldon SC, D Stanton (plaintiff)
C Purdy (first defendant)
K Burke (second defendant)
S Flett (proposed third defendant)
Slater & Gordon Lawyers (plaintiff)
Moray & Agnew (first defendant)
Colin Biggers & Paisley (second defendant)

File Number(s): 2010/143429
Publication…

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 Murdock v Lipman

Details

AGLC: Murdock v Lipman Pty Ltd [2012] NSWSC 983
Case: [2012] NSWSC 983
Decision Date: 24 August 2012

CaseChat Overview and Summary

In the case of Murdock v Lipman, the plaintiff, Mr Murdock, sought to bring a personal injury claim against the defendant, Mr Lipman, after the statutory limitation period had expired. The dispute involved whether it was just and reasonable to extend the limitation period, given that the presumptive prejudice was largely mitigated by the availability of statements obtained during a WorkCover investigation. The matter was heard in the Supreme Court of Queensland. The legal issues before the court were whether it was appropriate to extend the limitation period in light of the mitigating factors and whether the insurer, who had been substituted for the deregistered insured after the expiration of the second limitation bar, could be subject to an extension of the limitation period under section 601AG of the Corporations Act.

The court held that the extension of the limitation period was just and reasonable, as the prejudice suffered by the plaintiff was largely mitigated by the availability of the statements from the WorkCover investigation. The court noted that while the plaintiff's claim had been compromised by the limitation period, the availability of the statements reduced the impact of that compromise. Regarding the insurer, the court found that it had jurisdiction to extend the limitation period as against the insurer under section 601AG of the Corporations Act, as the insurer was substituted for the deregistered insured after the expiration of the second limitation bar. The court also considered the implications for the employer's right to recover contribution from other tortfeasors and whether the employer was precluded from seeking indemnity under section 151Z(1)(d) of the relevant legislation. The court determined that the employer's claims for indemnity were statute-barred, but this did not preclude the plaintiff from bringing the action out of time if it was deemed fair and just to do so.

The court granted leave for the plaintiff to bring the proceedings out of time, finding it was fair and just to do so in the circumstances. The court further ordered that the insurer, having been substituted for the deregistered insured, was subject to an extension of the limitation period. The court's decision allowed the plaintiff to pursue his claim, despite the passage of the statutory limitation period, and clarified the jurisdiction to extend the limitation period against the insurer.

Orders