Nguyen v Jajic

[2007] ACTSC 12

BICH NGUYEN v IVO ANTHONY JAJIC
[2007] ACTSC 12 (23 February 2007)

LIMITATION OF ACTIONS – Extension of time – no explanation for delay after consulting solicitor.
APPEAL – No error by Magistrate.

Limitation Act 1985, s 36

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 8 of 2006

Judge:  Connolly J
Supreme Court of the ACT

Date:  23 February 2007

IN THE SUPREME COURT OF THE  )
  )  No. SCA 8 of 2006
AUSTRALIAN CAPITAL TERRITORY  )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:BICH NGUYEN

Appellant

AND:IVO ANTHONY JAJIC

Respondent

ORDER

Judge:  Connolly J
Date:  23 February 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

1. This is an appeal from a decision of a Magistrate to refuse to extend the limitation period to permit a motor vehicle personal injury claim to be brought out of time.  The appellant claims that she was injured in a motor vehicle accident on 8 May 1999.  Under the Limitation Act 1985 (the Limitation Act), as it then stood, a person had six years to bring a claim for personal injures. For injuries sustained after July 2003, this period has been reduced to three years. The learned Magistrate found that, although a personal injury claim form had been filled in by the appellant and served on the insurer in June 1999, no further action appears to have been taken until August 2004, when the appellant consulted a solicitor. His Honour found that, although the appellant gave an explanation for the delay in contacting a solicitor based on her overall health and language and cultural difficulties, there was no explanation for the delay from August 2004. At this time, the solicitor would have known that the limitation period was due to expire in May 2005 and had, it seems to me, an adequate period in which to file a claim in the Magistrates Court within time.

1. It seems to me that the learned Magistrate, Mr Lalor, has applied the appropriate test in considering the application, and I am not satisfied that his discretion has in any way miscarried.

1. The Parliament, in this jurisdiction, in common with jurisdictions throughout Australia, has enacted by the Limitation Act a law which provides that actions for damages for personal injury must be brought within a prescribed time. The legislation does provide a discretion to extend that time, but the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 has made it clear that the onus rests on the prospective plaintiff to enliven this discretion. As Dawson J noted (at 544), in agreeing generally with the reasons of McHugh J, the Limitations Act:

... does not confer upon an applicant for an extension of time a presumptive right to an order…  The section confers a discretion upon a court to extend time and that discretion should only be exercised in favour of an applicant where, in all…