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 2004JURISDICTION:
EquityJUDGMENT 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 1984CASES 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 465PARTIES :
Stephen O'Neill - Plaintiff/Appellant
Beverley Foster - First Defendant/Respondent
Mary Petty - Second DefendantFILE NUMBER(S): SC 2317/03 COUNSEL: P Cullen - Appellant
D E Baran - RespondentSOLICITORS: 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.
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- AGLC
- O'Neill v Foster [2004] NSWSC 906
- Case
- [2004] NSWSC 906
- Decision Date
CaseChat Overview and Summary
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.
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