Reid v Agco Australia Ltd - [2000] VSC 363

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)…

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.

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Details

Case: [2000] VSC 363
Decision Date: 12 September 2000

CaseChat Overview and Summary

The plaintiff, Mr Reid, brought a claim against Agco Australia Ltd for damages arising from personal injuries sustained in an accident that occurred in South Australia. The dispute centred on the applicability of the Limitation of Actions Act 1936 (SA) and whether the writ, as initially issued, was a nullity due to the plaintiff's failure to comply with the statutory time limits. The primary legal issue for the court was to determine when the plaintiff became aware of the facts material to his case and whether this triggered the commencement of the limitation period. Additionally, the court needed to decide whether the initial writ was valid and whether the plaintiff was entitled to an extension of time to commence the proceeding.

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