Roseneder v Roseneder - [2014] QDC 268

DISTRICT COURT OF QUEENSLAND

CITATION:

Roseneder v Roseneder & Anor [2014] QDC 268

PARTIES:

WADE ROSENEDER

(applicant/plaintiff)

v

DEON ROSENEDER

(first respondent/defendant)

and

AAI LIMITED (ABN 48 005 297 807)

(second respondent/defendant)

FILE NO/S:

3258/13

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

2 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

7-8 October 2014 (inclusive)

JUDGE:

Ryrie DCJ

ORDER:

1. The application is dismissed.

2. The applicant is to pay the defendant’s costs of this application on a standard basis unless the parties otherwise agree.

CATCHWORDS:

LIMITATION OF ACTIONS – PERSONAL INJURIES OCCASIONED BY MOTOR VEHICLE ACCIDENT – where the limitation period for an action for damages for personal injuries to the plaintiff allegedly caused by the 1^st respondent’s negligence in a motor vehicle accident has expired– whether there was a material fact of a decisive character – whether the material fact of a decisive character was within the plaintiff’s means of knowledge – whether the period of limitation for the action should be extended
Limitations of Actions Act 1974 (Qld) ss 30, 31
State of Queensland v Stephenson (2006) 226 CLR 197 – applied
NF v State of Queensland [2005] QCA 110 – applied
Suncorp Metway Insurance Ltd v Norris [2012] QCA 101 – applied
Tregelles-Fox v Workcover Queensland [2010] QSC 288 – applied
Baillie v Creber & Anor [2010] QSC 52 – applied
Healy v Femdale Pty Ltd [1993] QCA 210 – applied; distinguished

COUNSEL:

K. Holyoak (for the applicant)

T. Matthews QC (for the 2^nd respondent)

SOLICITORS:

Shine Lawyers (for the applicant)

Quinlan Miller & Treston Lawyers (for the 2^nd respondent)

Introduction

This is an application pursuant to s 31 of the Limitations of Actions Act 1974 (Qld) (‘LAA’) for the period of limitation in relation to a personal injuries action to be extended in respect of a motor vehicle accident that occurred on 15^th August 2008. The applicant accepts that before an order can be made pursuant to s 31, it must be shown that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until after 15^th August 2010,[1] and no earlier than 18 September 2012.[2] The 2^nd respondent opposes the application.
[1]LAA s31(2)(a).
[2] (Order of Kingham DCJ, Document 5 of Proceeding 3258/13; insofar as it relates to 3880/13).

The relevant Law

Section 31(2) of the LAA provides:

“(2)Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—
(a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b) that there is evidence to establish the right of action apart from a defence founded on the…

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 Roseneder v Roseneder

Details

AGLC: Roseneder v Roseneder [2014] QDC 268
Case: [2014] QDC 268
Decision Date: 2 December 2014

CaseChat Overview and Summary

In the case of Roseneder v Roseneder, the applicant sought to extend the limitation period for an action for damages for personal injuries allegedly caused by the 1st respondent’s negligence in a motor vehicle accident. The applicant argued that there was a material fact of a decisive character that was not within their means of knowledge at the time the cause of action accrued, which justified extending the limitation period. The court was required to determine whether the material fact of a decisive character existed and whether it was within the applicant’s means of knowledge.

The court considered the applicable law and principles governing limitation periods, including the distinction between factual and legal causation. The court found that the applicant’s argument regarding the material fact of a decisive character was based on a misunderstanding of the relevant legal principles. The court held that the material fact of a decisive character must be a fact that, if known, would have led a reasonable person in the applicant’s position to commence proceedings within the limitation period. The court found that the applicant had failed to establish that the material fact of a decisive character was not within their means of knowledge at the relevant time.

The court dismissed the application, holding that the applicant had not satisfied the necessary criteria for extending the limitation period. The court found that the applicant had not demonstrated that the material fact of a decisive character was not within their means of knowledge at the time the cause of action accrued, and that the application was therefore without merit. The court ordered that the applicant pay the 1st respondent’s costs of the application on a standard basis, unless the parties otherwise agreed.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant is to pay the defendant’s costs of this application on a standard basis unless the parties otherwise agree.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Roseneder v Roseneder & Anor [2014] QDC 268
PARTIES:	WADE ROSENEDER (applicant/plaintiff) v DEON ROSENEDER (first respondent/defendant) and AAI LIMITED (ABN 48 005 297 807) (second respondent/defendant)
FILE NO/S:	3258/13
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	2 December 2014
DELIVERED AT:	Brisbane
HEARING DATE:	7-8 October 2014 (inclusive)
JUDGE:	Ryrie DCJ
ORDER:	1. The application is dismissed. 2. The applicant is to pay the defendant’s costs of this application on a standard basis unless the parties otherwise agree.
CATCHWORDS:	LIMITATION OF ACTIONS – PERSONAL INJURIES OCCASIONED BY MOTOR VEHICLE ACCIDENT – where the limitation period for an action for damages for personal injuries to the plaintiff allegedly caused by the 1^st respondent’s negligence in a motor vehicle accident has expired– whether there was a material fact of a decisive character – whether the material fact of a decisive character was within the plaintiff’s means of knowledge – whether the period of limitation for the action should be extended Limitations of Actions Act 1974 (Qld) ss 30, 31 State of Queensland v Stephenson (2006) 226 CLR 197 – applied NF v State of Queensland [2005] QCA 110 – applied Suncorp Metway Insurance Ltd v Norris [2012] QCA 101 – applied Tregelles-Fox v Workcover Queensland [2010] QSC 288 – applied Baillie v Creber & Anor [2010] QSC 52 – applied Healy v Femdale Pty Ltd [1993] QCA 210 – applied; distinguished
COUNSEL:	K. Holyoak (for the applicant) T. Matthews QC (for the 2^nd respondent)
SOLICITORS:	Shine Lawyers (for the applicant) Quinlan Miller & Treston Lawyers (for the 2^nd respondent)