Robyn Baxter v Mark Bryant Calagos - [2009] ACTSC 133

ROBYN BAXTER v MARK BRYANT CALAGOS

[2009] ACTSC 133 (13 October 2009)

LIMITATION OF ACTIONS – motor vehicle accident – extension of time – application for order pursuant to s 36 of Limitation Act 1985 (ACT) that the period of limitation be extended – statute confers general power to extend time – power to be exercised judicially – circumstances relevant to exercise power – satisfactory explanation for delay – no significant prejudice to defendant – justice favours grant of extension – extension allowed.

Limitation Act 1985 (ACT), s 36
Limitation of Actions Act 1974 (Qld)

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Web Scaffolding Pty Limited v Laws [2009] ACTSC 79 (10 July 2009)
Brozinic v PHC Operations Pty Ltd t/as Hyatt Hotel Canberra [2008] ACTSC 20 (14 March 2008)

Sessions v Phengsiaroun [2008] ACTSC 132 (28 November 2008)

No. SC 224 of 2009

Judge: Gray J
Supreme Court of the ACT

Date: 13 October 2009

IN THE SUPREME COURT OF THE       )
  )          No. SC 224 of 2009
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN: ROBYN BAXTER

Plaintiff

AND: MARK BRYANT CALAGOS

Defendant

ORDER

Judge:  Gray J
Date:  13 October 2009
Place:  Canberra

THE COURT ORDERS THAT:

The application be granted.
The period within which this action may be brought be extended to 19 February 2009.
The plaintiff pay the costs of this application.
Those costs not be recoverable until the conclusion of the substantive proceeding.

This is an application to extend the limitation period in an action for damages for personal injury sustained in a motor vehicle accident. The plaintiff was injured in a motor vehicle accident on 4 May 2002. The limitation period for this accident was six years. The plaintiff commenced the present proceedings on 18 February 2009, approximately nine months out of time. The defence filed on 9 July 2009 raised the limitation point. On 7 August 2009, this application was filed seeking that the limitation period for the plaintiff to commence these proceedings be extended to 19 February 2009 pursuant to s 36 of the Limitation Act 1985 (ACT) (the Limitation Act).

Background

The plaintiff was injured in a motor vehicle accident that occurred at the intersection of Companion Crescent and Ginninderra Drive, Flynn, in the Australian Capital Territory on 4 May 2002. She was the front seat passenger of a blue Volvo 850 being driven by her husband heading east on Ginninderra Drive. The defendant was an unaccompanied learner driver driving his father’s Toyota Prado 4WD heading south on Companion Crescent approaching Ginninderra Drive. The defendant failed to give way at a give way sign at the intersection and collided with the vehicle in which the plaintiff was travelling.
The plaintiff suffered whiplash injuries and bruising to her left knee and along the line of her seatbelt. The plaintiff claims that she continues to suffer from chronic neck pain causing headaches, back pain and pain in the left hip.
The plaintiff attended Calvary Hospital the morning after the accident for…

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 Robyn Baxter v Mark Bryant Calagos

Details

AGLC: Robyn Baxter v Mark Bryant Calagos [2009] ACTSC 133
Case: [2009] ACTSC 133
Decision Date: 13 October 2009

CaseChat Overview and Summary

In the case of Robyn Baxter v Mark Bryant Calagos, the applicant, Robyn Baxter, sought an extension of the time limit to bring an action following a motor vehicle accident. The matter was heard in the Supreme Court of the Australian Capital Territory. The court was tasked with determining whether the statutory period within which Baxter could initiate proceedings should be extended, given that she had missed the prescribed deadline. The crux of the legal issue was whether the statutory power to extend the limitation period should be exercised in this instance, and if so, under what conditions.

The court considered the relevant statutory provisions and the precedents that guide the exercise of this judicial power. It was acknowledged that the statute confers a general power to extend the time for bringing an action, but this power must be exercised judiciously. The court assessed various factors, including the reasons for the delay in filing the action, the existence of any prejudice to the defendant, and the broader principles of justice. It was found that Baxter provided a satisfactory explanation for the delay and that there was no significant prejudice to the defendant, Mark Bryant Calagos. Given these circumstances, the court concluded that justice favoured the granting of an extension.

As a result, the court granted the application, extending the period within which the action could be brought to 19 February 2009. Additionally, it was ordered that Baxter pay the costs of the application, with those costs not recoverable until the conclusion of the substantive proceeding. The decision underscores the court's willingness to balance the statutory requirements with the principles of fairness and justice in determining whether to extend the limitation period.

Orders

Orders of the court

1. The application be granted.

2. The period within which this action may be brought be extended to 19 February 2009.

3. The plaintiff pay the costs of this application.

4. Those costs not be recoverable until the conclusion of the substantive proceeding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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