Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Murgolo v AAI Ltd t/as AAMI [2019] NSWSC 406 Hearing dates: 15 February 2019 Decision date: 18 April 2019 Jurisdiction: Common Law Before: N Adams J Decision: (1) The proceedings against the first defendant are dismissed summarily under Uniform Civil Procedure Rules 2005 (NSW) r 13.4.
(2) The plaintiff is to the pay the first defendant’s costs of the first defendant’s motion.
(3) The parties have leave to approach the court within 14 days should a different costs order be sought by either of them.
(4) Leave is granted for the second defendant to withdraw its notice of motion.
(5) Both the plaintiff and the second defendant are to pay their own costs thrown away of the second defendant’s motion.
(6) The proceedings are listed before the Registrar on 2 May 2019.Catchwords: LIMITATION OF ACTIONS – discoverability – claim for damages for workplace injury – orders for summary dismissal sought on basis that proceedings are abuse of process and time barred – where plaintiff sued companies A and B within limitations period – where claim against company B discontinued – where default judgment obtained against company A – where company A was not insured and judgment remains unsatisfied – where company B was insured and present proceedings commenced against it out of time – whether cause of action discoverable by plaintiff on first date he knew or ought to have known the fact that injury was caused by the fault of company B – whether plaintiff could “unknow” earlier fact that injury was caused by the fault of company B – Limitation Act 1969 (NSW), s 50D(1)(b) – whether doctrine of res judicata applies to default judgment Legislation Cited: Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Legal Profession Act 2004 (NSW)
Limitation Act 1969 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Agar v Hyde (2000) 201 CLR 552
Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35
Baggs v The University of Sydney Union [2013] NSWCA 451
Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Jackson v Goldsmith (1950) 81 CLR 446; [1950] HCA 22
O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71
Petersen v Maloney (1951) 84 CLR 91
Smith v Hunter New England Local Health District [2016] NSWSC 248
State of NSW v Gillett [2012] NSWCA 83
Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 28
Zetta Jet Pte Ltd v The Ship “Dragon Pearl” [2018] FCAFC 132
Wardley v State of Western Australia (1992) 175 CLR 514Category: Procedural and other rulings Parties: Gaetano Murgolo (Plaintiff)
AAI Ltd t/as AAMI (First Defendant)
Proline Building – Commercial Pty Ltd (Second Defendant)Representation: Counsel:
Mr B D…
Keep reading for free
Create a free CaseChat account to read Murgolo v AAI Ltd t/as AAMI and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2019] NSWSC 406
- Decision Date
CaseChat Overview and Summary
The court found that the cause of action against company B was discoverable when Murgolo first knew or ought to have known that the injury was caused by company B's fault. The court held that Murgolo could not "unknow" this fact, meaning the limitation period began to run from that date. The court further held that the doctrine of res judicata did not apply to the default judgment against company A. This was because the judgment was not a final determination of the merits of the claim against company B, as the two causes of action were distinct. The court held that the proceedings against company B were an abuse of process and time barred.
Accordingly, the court granted the orders for summary dismissal sought by AAMI Ltd. The court held that the plaintiff's claims were an abuse of process and time barred, and the proceedings were dismissed with costs. The court did not make any orders as to costs between the parties.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.