Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Murgolo v AAI Ltd t/as AAMI [2019] NSWCA 295 Hearing dates: 20 November 2019 Date of orders: 05 December 2019 Decision date: 05 December 2019 Before: Basten JA at [1];
Macfarlan JA at [71];
Leeming JA at [74]Decision: (1) Allow the appeal and set aside order (1) made on 18 April 2019 and order (2) made on that date as varied on 15 November 2019.
(2) In place thereof, order that:
(3) Order that the respondent pay the appellant’s costs of the proceedings in this Court.
(a) the notice of motion filed by AAI Ltd on 23 October 2018 be dismissed, and
(b) AAI Ltd pay Mr Murgolo’s costs of the motion.Catchwords: CIVIL PROCEDURE – summary disposal – defence based on limitation period – issues of fact or law to be determined – suitability for summary determination
LIMITATION OF ACTIONS – limitation period for personal injury actions – when cause of action is “discoverable” – when the plaintiff “knows” that the injury was “caused by the fault of the defendant” –sufficiency of knowledge based on incomplete information – Limitation Act 1969 (NSW), ss 50C and 50D
WORDS AND PHRASES – “discoverable” – “knows” – “fact”Legislation Cited: Corporations Act 2001 (Cth), ss 153, 471B, 500
Uniform Civil Procedure Rules (2005) NSW, r. 5.2, 7.20
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6
Legal Profession Act 2004 (NSW), s 347
Legal Profession Act 2004 (NSW), s 347
Legal Profession Uniform Law Application Act 2014 (NSW), Sch 2 cl 2
Limitation Act 1969 (NSW), ss 18A, 50C, 50D, 57B, 58, 60C, 60E; Pt 2, Div 6
Supreme Court Act 1970 (NSW), s 101
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 313, 314Cases Cited: Australian Hospital Care Pty Ltd v Swinbank [1999] QCA 247
Baggs v University of Sydney Union [2013] NSWCA 451
Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35
Bell Group Ltd v Westpac Banking Corp (2000) 104 FCR 305; [2000] FCA 439
BH Australia Constructions Pty Ltd v Kapeller [2019] NSWSC 1086
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Broome v Cassell & Co Ltd [1972] AC 1027
Castillon v P & O Ports Ltd (No 2) [2008] 2 Qd R 219; [2007] QCA 364
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Field v Field (Court of Appeal (NSW), 21 October 1981, unrep)
Gardiner v Motor Vehicle Insurance Trust (1955) 95 CLR 120; [1955] HCA 57
Machan v Comalco Aluminium Ltd [1995] QCA 372
Morales-Melecio v United States 890 F 3d 361 (1st Ct)
Murgolo v AAI Ltd t/as AAMI (No 2) [2019] NSWSC 1567
Naumcevski v Deputy Commissioner of Taxation [2019] NSWCA 72
Re Sydney Formworks Pty Ltd [1965] NSWR 646
Re Testro Bros Consolidated Ltd [1965] VR 18
State of New South Wales v Gillett…
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- Case
- [2019] NSWCA 295
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the primary judge had erred in finding that there were no triable issues of fact or law regarding the discoverability of the cause of action, and consequently, whether the claim was appropriately subject to summary disposal. This involved an examination of the sufficiency of knowledge required for a plaintiff to be deemed aware that their injury was caused by the defendant's fault, particularly when that knowledge might be based on incomplete information.
The Court of Appeal reasoned that the determination of when a plaintiff "knows" their injury was caused by the fault of the defendant, as contemplated by sections 50C and 50D of the Limitation Act 1969 (NSW), often involves questions of fact that are not suitable for summary determination. The Court held that the primary judge had incorrectly concluded that the appellant's knowledge was sufficient to establish that the cause of action was discoverable at a point in time that would render the claim statute-barred. The Court emphasised that the statutory test for discoverability requires more than mere suspicion or a general awareness of a potential problem; it requires a sufficient degree of knowledge about the causal link between the defendant's fault and the injury.
Consequently, the Court of Appeal allowed the appeal, setting aside the summary dismissal order and dismissing the respondent's notice of motion. The respondent was ordered to pay the appellant's costs of the motion in the Supreme Court and the costs of the appeal in the Court of Appeal.
Orders
Orders of the court
(1) Allow the appeal and set aside order (1) made on 18 April 2019 and order (2) made on that date as varied on 15 November 2019.
(2) In place thereof, order that:
(a) the notice of motion filed by AAI Ltd on 23 October 2018 be dismissed, and
(b) AAI Ltd pay Mr Murgolo’s costs of the motion.
(3) Order that the respondent pay the appellant’s costs of the proceedings in this Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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