| SUPREME COURT OF VICTORIA AT BALLARAT | |
| PRACTICE COURT | Not Restricted |
No. 14 of 1999
Application pursuant to s.48 of the Limitation of Actions Act 1936 (SA)
| ERIC WAYNE REID | Plaintiff |
| v. | |
| AGCO AUSTRALIA LIMITED (ACN 004 092 684) | Firstnamed Defendant |
| And | |
| ROBERT AND THELDA NOMINEES PTY. LTD. | Secondnamed Defendant |
| And | |
| MICHAEL DEAN | Thirdnamed Defendant |
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JUDGE: | ASHLEY, J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 September 2000 | |
DATE OF JUDGMENT: | 12 September 2000 | |
CASE MAY BE CITED AS: | Reid v. AGCO Australia Ltd. & Ors. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 363 | |
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CATCHWORDS:Limitation of Actions – claim for damages for personal injuries-
accident occurring in South Australia – applicability of Limitation of
Actions Act 1936 (SA) - application for extension of time within which
to commence a proceeding – when facts material to plaintiff’s case
were ascertained – whether writ as issued a nullity - exercise of
residual discretion.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. L. Paine | Fraser Nevett & Frawley |
| For the Firstnamed Defendant | Mr. A.N. Sandbach | Middletons Moore & Bevins |
| For the Second and Thirdnamed Defendants | Mr. M.J. Corrigan | Minter Ellison |
HIS HONOUR:
The Nature of the Application
The plaintiff, by summons filed 26 July 2000 seeks the following relief: that the Court extend the time prescribed by s.36(1) of the Limitation of Actions Act 1936 (SA) so as to permit him to bring the within proceeding upon such terms (if any) as the justice of the case may require.
The proceeding was commenced by writ filed on 17 December 1999. The plaintiff, Eric Reid, claims damages for personal injuries sustained by him in an accident which occurred on 9 March 1994. The defendants are AGCO Australia Ltd., then his employer, Robert and Thelda Nominees Pty. Ltd. (a contractor employed by the first defendant), and Michael Dean (the driver of a vehicle provided by the contractor).
The accident occurred at Keith in South Australia, when the plaintiff, in the course of his employment, was manoeuvring a small tractor onto the contractor's truck. In circumstances alleged by the plaintiff to involve negligence of one or more of the defendants, the tractor fell off the truck. He, the plaintiff, was crushed beneath it. Medical reports filed on the present application suggest that the plaintiff received multiple, very severe and permanent injuries.
It was common ground before me that the subject matter of the proceeding is governed by the provisions of the Limitation of Actions Act 1936 (SA) (the Act). That is so by virtue of s.5 of the Choice of Law (Limitation Periods) Act 1993, as well as by the operation of the recent decision of the High Court in John Pfeiffer Pty. Ltd. v. Rogerson (2000) 74 ALJR 1109. The decision of the High Court in McKain v. R.W. Miller & Company (South Australia) Pty. Limited (1991) 174 CLR 1 could not, after the commencement of the 1993 Victorian Act, have anything to say about the situation.
The relevant limitation provision is s.36(1)…
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- Case
- [2000] VSC 363
- Decision Date
CaseChat Overview and Summary
The court examined the evidence and concluded that the plaintiff had actual knowledge of the facts necessary to bring the claim within the statutory period. The court found that the plaintiff's knowledge of the accident and its consequences was sufficient to trigger the limitation period under the Act. The court further held that the initial writ was not a nullity but acknowledged that the plaintiff had not strictly adhered to the procedural requirements. The court exercised its residual discretion to permit the plaintiff to amend the writ to correct the procedural defect, allowing the claim to proceed despite the limitation issues.
In light of the findings, the court granted the plaintiff permission to amend the writ to correct the procedural defect. The court emphasised the importance of adhering to statutory time limits and the exercise of discretion in exceptional circumstances. The final orders of the court allowed the plaintiff to proceed with the amended writ, ensuring the claim could be heard on its merits.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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