Sandra Ellen Mills v Perpetual Trustee Limited - [2008] NSWDC 210

CITATION: Sandra Ellen Mills v Perpetual Trustee Limited & Ors [2008] NSWDC 210

JUDGMENT DATE:
22 August 2008

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ at 1

DECISION: Application to extend the limitation period is refused.

CATCHWORDS: Personal injury - Limitation period - Application to extend the limitation period

LEGISLATION CITED: ss 60G, 60I Limitation Act 1969

CASES CITED: Andresakis & Skouteris trading as Andresakis & Associates v Alexus Holdings Pty Ltd (2006) 68 NSWLR 507
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Commonwealth of Australia v Smith [2005] NSWCA 478
Drayton Coal Pty Ltd v Drain NSWCA, unreported, 22 August 1993
Harris v Commerical Minerals Ltd (1996) 186 CLR 1
State of NSW v Young [2004] NSWCA 204
Telstra Corporation v Rea [2002] NSWCA 49

PARTIES: Sandra Ellen Mills
Perpetual Trustee Limited & Ors

FILE NUMBER(S): 1078 of 2005

COUNSEL: Ms Wall for the Plaintiff (Mrs Mills)
Mr Gruzman for the 1st Respondent/2nd Defendant (Savills)
Mr Grant for the 2nd Respondent (Glad Cleaning)

JUDGMENT

1. On 6 September 2002, Mrs Sandra Mills slipped and fell over in Ashfield Mall. She injured herself quite badly. She had fallen over on some ice-cream which was near an ice-cream shop. She went to the management centre of the mall to complain. She knew about the ice-cream.

2. Later she saw some solicitors. They started a case for her in this court. They sued the owners of Ashfield Mall, Perpetual Trustee Limited, the now first defendant. Later, the solicitors joined the proprietor of the ice-cream shop, Bau Ly Chung, as the second defendant.

3. However, who was not sued - and what this case is about - were the operators of the mall and the cleaners of the mall. It is now too late to sue them because there is what is commonly known as a statute of limitations, which is three years. But the statute of limitations provides for exceptions. The question in this case is whether Mrs Mills can satisfy me that she comes within the exceptions to the statute of limitations so that I can allow her to now sue the operators of the mall and the cleaners.

4. To put this briefly in legal terms, the statute of limitations is the Limitation Act 1969 . That provides, for a case such as this, that a person must sue within three years of an accident. The Act provides for a judge in their discretion to extend the limitation period. The relevant section to this case is s 60G. Section 60G(2) provides as follows:

If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period 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.

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Details

Case: [2008] NSWDC 210
Decision Date: 22 August 2008

CaseChat Overview and Summary

The parties involved in this case are Sandra Ellen Mills, the plaintiff, and Perpetual Trustee Limited, the defendant. The dispute arises from a personal injury claim that Sandra Ellen Mills initiated against Perpetual Trustee Limited. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the limitation period for bringing the claim should be extended. The limitation period is the timeframe within which a legal claim must be brought; missing this deadline can result in the claim being barred.

The court was required to determine whether there were exceptional circumstances that justified extending the limitation period. In this context, the court examined whether any factors, such as the plaintiff's delay in bringing the claim, were excusable. The court also had to consider whether the defendant would be prejudiced by any delay in bringing the claim. These legal issues were pivotal in deciding whether the plaintiff's application to extend the limitation period should be granted.

After considering the evidence and arguments presented by both parties, the court concluded that the plaintiff had not demonstrated any exceptional circumstances warranting an extension of the limitation period. The court found that the plaintiff's delay in bringing the claim was not excusable and that the defendant would indeed be prejudiced by any delay in bringing the claim. Consequently, the court refused the application to extend the limitation period. The plaintiff's claim was therefore barred by the limitation period, and the court dismissed the claim.

Orders

Orders of the court

Application to extend the limitation period is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sandra Ellen Mills v Perpetual Trustee Limited & Ors [2008] NSWDC 210
JUDGMENT DATE:	22 August 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Application to extend the limitation period is refused.
CATCHWORDS:	Personal injury - Limitation period - Application to extend the limitation period
LEGISLATION CITED:	ss 60G, 60I Limitation Act 1969
CASES CITED:	Andresakis & Skouteris trading as Andresakis & Associates v Alexus Holdings Pty Ltd (2006) 68 NSWLR 507 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Commonwealth of Australia v Smith [2005] NSWCA 478 Drayton Coal Pty Ltd v Drain NSWCA, unreported, 22 August 1993 Harris v Commerical Minerals Ltd (1996) 186 CLR 1 State of NSW v Young [2004] NSWCA 204 Telstra Corporation v Rea [2002] NSWCA 49
PARTIES:	Sandra Ellen Mills Perpetual Trustee Limited & Ors
FILE NUMBER(S):	1078 of 2005
COUNSEL:	Ms Wall for the Plaintiff (Mrs Mills) Mr Gruzman for the 1st Respondent/2nd Defendant (Savills) Mr Grant for the 2nd Respondent (Glad Cleaning)