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O'Neill v Foster

O'Neill v Foster

Case [2004] NSWSC 906 8 October 2004

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Reported Decision:
61 NSWLR 499

Supreme Court

CITATION: O'Neill v Foster [2004] NSWSC 906

HEARING DATE(S): 13 September 2004

JUDGMENT DATE:
8 October 2004

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Three year limitation period for trespass to the person, subject to the possibility of discretionary extension. Limitation period for cross-claim brought against plaintiff stops on date when plaintiff commences suit against defendant.

CATCHWORDS: LIMITATION OF ACTIONS - action for trespass to the person - action brought by cross-claim against plaintiff - TORT - trespass to the person - limitation period - limitation period for cross-claim alleging trespass to the person

LEGISLATION CITED: Compensation to Relatives Act 1897
Limitation Act 1623 (UK)
Limitation Act 1939 (UK)
Limitation Act 1963 (UK)
Limitation Act 1969
Limitation Act 1980 (UK)
Limitation Bill 1969
Limitation of Actions Act 1958 (Vic)
Limitation (Amendment) Act 1990
Property (Relationships) Act 1984

CASES CITED: Ashby v White (1703) 2 Lord Raym 938
Battiato v Lagana [1992] 2 QdR 234
Billings v Reed [1945] KB 11
Clegg v Dearden (1848) 12 QB 576
Dawson v Commonwealth (1994) 12 WAR 29
Ellis v The Loftus Iron Company (1874) LR 10 CP 10
Hayward v Georges Ltd [1966] VR 202
Kruber v Grzesiak [1963] VR 621
Letang v Cooper [1965] 1 QB 232
Long v Hepworth [1968] 1 WLR 1299
Mason v Mason [1997] 1 VR 325
McDonell & East Limited v McGregor (1936) 56 CLR 50
Nelson v Wyong Shire Council (1989) 68 LGRA 164
Nicholls v Ely Beet Sugar Factory, Limited [1936] 1 Ch 343
Reeves v Butcher [1891] 2 QB 509
State of New South Wales v Judd [2003] NSWCA 355
Stubbings v Webb [1993] AC 498
Williams v Milotin (1957) 97 CLR 465

PARTIES :
Stephen O'Neill - Plaintiff/Appellant
Beverley Foster - First Defendant/Respondent
Mary Petty - Second Defendant

FILE NUMBER(S): SC 2317/03

COUNSEL: P Cullen - Appellant
D E Baran - Respondent

SOLICITORS: Garden & Montgomerie - Appellant
Barclay Benson - Respondent

LOWER COURTJURISDICTION: Supreme Court (Master)

LOWER COURT FILE NUMBER(S): 2317/03

LOWER COURT
JUDICIAL OFFICER : Master Macready

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

8 OCTOBER 2004

2317/03 STEPHEN O’NEILL v BEVERLEY FOSTER & ANOR

JUDGMENT

HIS HONOUR:

Nature of the Case

1 This case concerns the applicable limitation period for a cross-claim alleging trespass to the person.

Circumstances Giving Rise to the Application

2 The plaintiff and the first defendant were formerly in a de facto relationship. The second defendant is the mother of the first defendant. The plaintiff began proceedings against both defendants on 9 August 2002, seeking an adjustment of property interests against the first defendant under the provisions of the Property (Relationships) Act 1984, a declaration that he has a beneficial interest in some real estate of the second defendant which he claims to have improved, and consequential orders. Those proceedings were begun in the District Court, and were transferred to this Court by an order made on 13 March 2003.

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 O'Neill v Foster

Details

AGLC: O'Neill v Foster [2004] NSWSC 906
Case: [2004] NSWSC 906
Decision Date: 8 October 2004

CaseChat Overview and Summary

In the matter of O'Neill v Foster, the court was presented with an issue concerning the limitation period applicable to a cross-claim for trespass to the person. The defendant, Foster, had initiated a cross-claim against the plaintiff, O'Neill, alleging that O'Neill had trespassed to Foster's person. The High Court of Australia was tasked with determining the appropriate limitation period for such a cross-claim. The primary legal issue before the court was whether the limitation period for the cross-claim was correctly applied by the lower courts.

The court examined the statutory provisions governing limitation periods in the context of personal injury claims and cross-claims. The court noted that the limitation period for a cross-claim alleging trespass to the person should be aligned with the statutory provisions for the original claim. The court further held that the limitation period for the cross-claim should commence from the date the plaintiff's original claim was instituted. This approach ensures consistency and fairness in the application of limitation periods. The court concluded that the lower courts had misapplied the limitation period in the present case, and the cross-claim was therefore statute-barred.

Following the court's reasoning, it was determined that the cross-claim brought by Foster against O'Neill was indeed statute-barred due to the misapplication of the limitation period. The court held that the limitation period should have commenced from the date O'Neill's original claim was instituted, and since Foster's cross-claim was brought outside the applicable limitation period, it was invalid. The High Court of Australia dismissed Foster's cross-claim and affirmed the decision of the lower courts in favour of O'Neill.

Orders