Murgolo v AAI Ltd t/as AAMI - [2019] NSWSC 406

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 514
Category: 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…

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.

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Details

Case: [2019] NSWSC 406
Decision Date: 18 April 2019

CaseChat Overview and Summary

In this case, the plaintiff, Murgolo, sought to hold AAMI Ltd, formerly known as AAI Ltd, liable for damages arising from a workplace injury. The proceedings were before the Supreme Court of New South Wales. Murgolo had initially sued two companies, A and B, within the statutory limitations period. The action against company B was subsequently discontinued, and a default judgment was entered against company A. Company A was uninsured, and the judgment remained unsatisfied, while company B was insured. Murgolo then commenced new proceedings against company B, out of time. The legal issues centred on whether the cause of action against company B was discoverable on the date Murgolo first knew or ought to have known that company B was at fault. A further issue was whether Murgolo could "unknow" the earlier fact that company B was at fault. The court was also required to determine whether the doctrine of res judicata applied to the default judgment against company A.

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