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Norris v McGeachy

Norris v McGeachy

Case [2010] TASFC 4 18 June 2010

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[2010] TASFC 4

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Norris v McGeachy [2010] TASFC 4

PARTIES:  NORRIS, Robert James
  v
  McGEACHY, Sarah Margaret

FILE NO/S: FCA 1081/2009
JUDGMENT

APPEALED FROM: Norris v McGeachy [2009] TASSC 110

DELIVERED ON:  18 June 2010
DELIVERED AT:  Hobart
HEARING DATE:  31 May 2010
JUDGMENT OF:  Evans, Blow and Tennent JJ

CATCHWORDS:

Appeal and New Trial – Appeal – General principles – Interference with discretion of court below – In general – General principles – Functions of appellate court – Generally – Exercise of broad judicial discretion – Where no error of principle – Refusal of application to extend time.

Supreme Court Civil Procedure Act 1932 (Tas), s45(1).
Marr v Green (1993) 14 Tas R 317; Hill v Iluka Corporation Ltd [2002] TASSC 113, distinguished.

Aust Dig Appeal and New Trial [33]

Limitation of Actions – Extension or postponement of limitation periods – Extension of time in personal injuries matters – Principles upon which discretion exercised – Writ filed out of time – Delay in applying for extension of time – Whether relevant.

Limitation Act 1974 (Tas), s5(3).
Aust Dig Limitation of Actions [1085]

REPRESENTATION:

Counsel:
             Appellant:  C J Gunson
             Respondent:  K E Read
Solicitors:
             Appellant:  Hilliard & Associates
             Respondent:  Dobson Mitchell & Allport

Judgment Number: [2010] TASFC 4
Number of paragraphs: 51

Serial No 4/2010
File No FCA 108/2009

ROBERT JAMES NORRIS v SARAH MARGARET McGEACHY

REASONS FOR JUDGMENT FULL COURT

EVANS J
BLOW J
TENNENT J
18 June 2010

Order of the Court

Appeal dismissed.

Serial No 4/2010
File No FCA 108/2009

ROBERT JAMES NORRIS v SARAH MARGARET McGEACHY

REASONS FOR JUDGMENT FULL COURT

EVANS J
18 June 2010

I agree with the reasons for judgment prepared by Blow J and would also dismiss the appeal.
File No FCA 108/2009

ROBERT JAMES NORRIS v SARAH MARGARET McGEACHY

REASONS FOR JUDGMENT FULL COURT

BLOW J
18 June 2010

This is an appeal from an order refusing an extension of time for the bringing of an action for damages for personal injuries. The appellant, Mr Norris, went drinking in Launceston on the night of Wednesday 3 November 2004. The night did not go well for him. He had an argument with his partner. In the early hours of Thursday 4 November he decided to walk back alone to her home in Trevallyn. He was walking on the roadway of the West Tamar Highway at about 3.30am when he was hit by a car driven by the respondent. He suffered serious injuries. The limitation period for the bringing of an action against the respondent for damages for those injuries was three years: Limitation Act 1974, s5(1). That limitation period expired in November 2007. The appellant sued for such damages by a writ that was filed on 2 October 2008. He subsequently applied under the Limitation Act, s5(3), for an order extending the time for the bringing of his action to the date of the filing of the writ. Crawford CJ heard that…

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 Norris v McGeachy

Details

AGLC: Norris v McGeachy [2010] TASFC 4
Case: [2010] TASFC 4
Decision Date: 18 June 2010

CaseChat Overview and Summary

The appeal in *Norris v McGeachy* concerned an application to extend the time for filing a writ in a personal injuries matter. The primary judge had refused the application, and the plaintiff appealed this decision to the Full Court of the Supreme Court of Queensland.

The central legal issue before the Full Court was whether the primary judge had erred in the exercise of their broad judicial discretion in refusing to grant an extension of time for the filing of the writ. This required the appellate court to consider the principles governing the exercise of such discretion, particularly in personal injuries cases, and whether any error of principle had occurred. The court also considered the relevance of delay in seeking the extension itself.

The Full Court affirmed that an appellate court should only interfere with the exercise of a broad judicial discretion by a court below where there is an error of principle. In this instance, the court found no such error in the primary judge's reasoning. The principles applied focused on the established criteria for granting extensions of time in personal injuries claims, and the court was satisfied that these had been correctly applied.

Consequently, the appeal was dismissed.

Orders

Orders of the court

I would dismiss the appeal.

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.

Citations

AGLC Citation

Norris v McGeachy [2010] TASFC 4

Most Recent Citation

Tusyn v State of Tasmania (No 3) [2010] TASSC 55

Cases citing this decision · 10 of 10 shown

Bob Brown Foundation v Sustainable Timber Tasmania
[2022] TASFC 3 Para 29

…a general discretion to reverse a discretionary decision on the basis of the Full Court's views as to what is reasonable and just: Norris v McGeachy [2010] TASFC 4 at [29]. Error of the kind referred to in s 45(1) of the Act must be demonstrated before this Court may "reverse or vary" the adjudication made at fi…
Courto v Tasmanian Gaming Commission
[2014] TASFC 12 Para 3

…ailed to undertake a proper weighing and balancing process, can only succeed if an error within the scope of s 45(1) is identified: Norris v McGeachy [2010] TASFC 4 per Blow J (as he then was) at [29] and [42]. Such an error occurs if a judge attaches so much weight, or so little weight, to a particular factor or…
Norris v Pedder (No 2)
[2014] TASSC 29 Para 2

…t that application was dismissed by Crawford CJ: Norris v McGeachy [2009] TASSC 10. An appeal to the Full Court was unsuccessful: Norris v McGeachy [2010] TASFC 4. In 2011 the appellant brought this action against the respondents, his former solicitors, claiming damages for economic loss as a result of him losing…
Norris v Pedder
[2014] TASSC 10 Para 1

…An appeal to the Full Court was dismissed. Norris v McGeachy [2010] TASFC 4.…
Guest v West Tamar Council
[2013] TASSC 1 Para 1

…jury, it accrued within a short time of the accident. The writ issued on 19 August 2011. Post writ delay may be taken into account. Norris v McGeachy [2010] TASFC 4 per Blow J at par[26]. The writ was served in February 2012 and the extension of time application was filed in July 2012.…
Plane v Kaine
[2012] TASSC 77 Para 1

…me application, may be taken into account insofar as it may contribute to any injustice suffered as a result of the pre-writ delay. Norris v McGeachy [2010] TASFC 4, per Blow J at par[26].…
W v Eaton (No 2)
[2012] TASSC 37 Para 1

…used and/or will cause to the defendant. Delay in prosecuting an application for an extension of time is to be taken into account ( Norris v McGeachy [2010] TASFC 4 at par26). Under s38A(2)(b) the additional considerations are the nature and extent of the plaintiff's loss and the nature of the defendant's conduct…
Cooper v Curtis
[2010] TASSC 64 Para 1

…of the whole of the period from the accrual of the cause of action up until the making of the extension of time applications (see Norris v McGeachey [2010] TASFC 4 at par26). As both extension of time applications were filed in mid 2010 no point of distinction arose in the consideration of the applications.…
Tusyn v State of Tasmania (No 3)
[2010] TASSC 55 Para 1

…The Full Court held in Norris v McGeachy [2010] TASFC 4 that delay between the filing of a writ and the making of an application for an extension of time is a relevant circumstance that weighs against the granting of an extension.…
Tamarack Pty Ltd v Beswick
[2010] TASFC 5 Para 1

…or some other specific error within the scope of s45(1), can be identified, an appeal from a discretionary decision cannot succeed: Norris v McGeachy [2010] TASFC 4.…

View all 10 citing cases →

Cases cited in this decision · 7 of 7 shown

Norris v McGeachy
[2009] TASSC 110 Para 1

…the time for the bringing of his action to the date of the filing of the writ. Crawford CJ heard that application and dismissed it: Norris v McGeachy [2009] TASSC 110. This is an appeal from that decision.…
Australian Broadcasting Corporation v O'Neill
[2006] HCA 46 Para 1

…ing another recent case in which it was held that a judge proceeded on a wrong principle by attaching too little weight to particular matters, namely Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57. That case concerned an interlocutory injunction granted by a judge of this Court to restrain the publication of material that was alleged…
Hill v Iluka Corporation Ltd
[2002] TASSC 113 Para 1

…eal that can lead to the Full Court finding appealable error. He relied for that proposition on Marr v Green (above) and Hill v Iluka Corporation Ltd [2002] TASSC 113. However those were both cases in which the Full Court identified errors within the scope of s45(1). For the reasons which follow, I think they must…
Brisbane South Regional Health Authority v Taylor
[1996] HCA 25 Para 1

…had no doubt dimmed, and that there was a possibility of "indeterminable prejudice". He referred to Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551.…
Wardley Australia Ltd v Western Australia
[1992] HCA 55 Para 1

…nc [1982] Tas R 102. The availability of a limitation defence may be determined at the trial of the action: Wardley Australia Ltd v Western Australia (1992) 175 CLR 514. There is nothing inappropriate about filing a writ and seeking an extension of time by means of an interlocutory application, rather than seeking an…
Marr v Green
[1992] TASSC 91 Para 1

…Counsel for the appellant relied on comments made in Marr v Green (1993) 14 Tas R 317. In that case, Green CJ said the following at 319:…
Hall v Nominal Defendant
[1966] HCA 36

…s expired should be directed to the specific issue of the reason for the applicant's failure to take proceedings in time – Hall v Nominal Defendant (1966) 117 CLR 423 at 435 – rather than the general issue of how diligently he pursued his claim during that period. The general issue of how diligently the applicant pur…

Legislation cited in this decision · 3

Limitation Act 1974 (TAS)
5(1), 5(3) 2 mentions (from Para 1)
Motor Accidents (Liabilities and Compensation) Act 1973 (TAS)
27(3) 1 mention (from Para 1)
Supreme Court Civil Procedure Act 1932 (TAS)
45(1) 1 mention (from Para 1)