Sandrin v W&M Riggs Mechanical Repairs - [2006] NSWCA 194

New South Wales

Court of Appeal

CITATION: Sandrin v W&M Riggs Mechanical Repairs [2006] NSWCA 194

HEARING DATE(S): 23 June 2006

JUDGMENT DATE:
20 July 2006

JUDGMENT OF: Beazley JA at 1; Santow JA at 2; Tobias JA at 3

DECISION: (a) Leave to appeal granted upon condition that a notice of appeal setting out the grounds of appeal is filed within seven days of the date of these orders; (b) Appeal allowed; (c) Set aside the orders made by Judge Ashford on 21 June 2005; (d) Remit to the District Court the notice of motion filed on 15 July 2004 in proceedings No 3030/04 for determination of that notice of motion upon its merits; (e) The costs of the notice of motion before Judge Ashford to abide the costs of the rehearing; (f) The opponents to pay the claimant’s costs of the summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitors’ Fund Act 1951, if otherwise qualified

CATCHWORDS: PROCEDURE – miscellaneous procedural matters – orders of the Court – form – construction – effect – whether orders capable of retrospective effect – limitation periods – whether proceedings brought out of time – whether proceedings still on foot

LEGISLATION CITED: Civil Liability Act 2002
Limitation Act 1969
Suitors’ Fund Act 1951
Supreme Court Rules Pt 40 r3
Uniform Civil Procedure Rules 2005, Pt 36 r36.4
Workers Compensation Act 1987

CASES CITED: Athens v Randwick City Council (2005) 64 NSWLR 58
Jol v State of New South Wales (1998) 45 NSWLR 283
Mealing v P Chand t/as Fastfix (2003) 57 NSWLR 305
Trpenoski v BHP Flat Products [2003] NSWCA 176
Whisprun Pty Ltd v Sams (2002) NSWCA 394
Wilde v Australian Trade Equipment Co Ltd (1981) 145 CLR 590

PARTIES: Denis Sandrin
W&M Rigg t/as W&M Riggs Mechanical Repairs

FILE NUMBER(S): CA 40593/05

COUNSEL: A: E G Romaniuk
R: J Fernon SC / M Vincent

SOLICITORS: A: Beilby Poulden Costello, Sydney
R: S&T Lawyers, Canberra

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3030/04

LOWER COURT JUDICIAL OFFICER: Ashford DCJ

LOWER COURT DATE OF DECISION: 21 June 2005

CA 40593/05

BEAZLEY JA
SANTOW JA
TOBIAS JA
Thursday 20 July 2006

DENIS SANDRIN v W & M RIGG t/as W & M RIGGS MECHANICAL REPAIRS

Judgment

1 BEAZLEY JA: I agree with Tobias JA.

2 SANTOW JA: I agree with Tobias JA.

3 TOBIAS JA: On 7 July 1994 the claimant was performing work as a mechanic and auto-electrician at the workshop premises of the opponent at Orange in the State of New South Wales. On that day he slipped and fell from an elevated turret some ten feet above the ground, sustaining serious injuries to his spine, back and neck.

4 For reasons which are presently immaterial, the claimant did not commence proceedings against the opponents within the limitation period respectively provided by the Workers Compensation Act 1987 (the WC Act) or 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.

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Details

Case: [2006] NSWCA 194
Decision Date: 20 July 2006

CaseChat Overview and Summary

The appeal concerned the procedural validity of proceedings initiated by the claimant, Sandrin, against W&M Riggs Mechanical Repairs. The core of the dispute revolved around whether Sandrin's claim had been brought within the relevant limitation periods and whether the proceedings were still validly on foot. The matter came before the Court of Appeal of New South Wales, with Beazley JA, Santow JA, and Tobias JA presiding.

The primary legal issues before the Court of Appeal were whether the orders made by Judge Ashford on 21 June 2005 were capable of retrospective effect, and consequently, whether the proceedings commenced by Sandrin were out of time and therefore liable to be dismissed. The court was required to determine the proper construction and effect of the earlier orders in light of the limitation periods applicable to Sandrin's claim.

The Court of Appeal allowed the appeal, finding that the orders made by Judge Ashford on 21 June 2005 were not capable of retrospective effect in a manner that would render Sandrin's claim out of time. The court reasoned that the notice of motion filed on 15 July 2004 should have been determined on its merits. Accordingly, the orders of Judge Ashford were set aside, and the matter was remitted to the District Court for determination of the notice of motion. The costs of the notice of motion were to abide the costs of the rehearing, and W&M Riggs Mechanical Repairs were ordered to pay Sandrin's costs of the summons for leave to appeal and the appeal, with a certificate under the Suitors' Fund Act 1951 available for the appeal costs if otherwise qualified.

Orders

Orders of the court

(a) Leave to appeal granted upon condition that a notice of appeal setting out the grounds of appeal is filed within seven days of the date of these orders;

(b) Appeal allowed;

(d) Remit to the District Court the notice of motion filed on 15 July 2004 in proceedings No 3030/04 for determination of that notice of motion upon its merits;

(e) The costs of the notice of motion before Judge Ashford to abide the costs of the rehearing;

(f) The opponents to pay the claimant's costs of the summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified

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:	Sandrin v W&M Riggs Mechanical Repairs [2006] NSWCA 194
HEARING DATE(S):	23 June 2006
JUDGMENT DATE:	20 July 2006
JUDGMENT OF:	Beazley JA at 1; Santow JA at 2; Tobias JA at 3
DECISION:	(a) Leave to appeal granted upon condition that a notice of appeal setting out the grounds of appeal is filed within seven days of the date of these orders; (b) Appeal allowed; (c) Set aside the orders made by Judge Ashford on 21 June 2005; (d) Remit to the District Court the notice of motion filed on 15 July 2004 in proceedings No 3030/04 for determination of that notice of motion upon its merits; (e) The costs of the notice of motion before Judge Ashford to abide the costs of the rehearing; (f) The opponents to pay the claimant’s costs of the summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitors’ Fund Act 1951, if otherwise qualified
CATCHWORDS:	PROCEDURE – miscellaneous procedural matters – orders of the Court – form – construction – effect – whether orders capable of retrospective effect – limitation periods – whether proceedings brought out of time – whether proceedings still on foot
LEGISLATION CITED:	Civil Liability Act 2002 Limitation Act 1969 Suitors’ Fund Act 1951 Supreme Court Rules Pt 40 r3 Uniform Civil Procedure Rules 2005, Pt 36 r36.4 Workers Compensation Act 1987
CASES CITED:	Athens v Randwick City Council (2005) 64 NSWLR 58 Jol v State of New South Wales (1998) 45 NSWLR 283 Mealing v P Chand t/as Fastfix (2003) 57 NSWLR 305 Trpenoski v BHP Flat Products [2003] NSWCA 176 Whisprun Pty Ltd v Sams (2002) NSWCA 394 Wilde v Australian Trade Equipment Co Ltd (1981) 145 CLR 590
PARTIES:	Denis Sandrin W&M Rigg t/as W&M Riggs Mechanical Repairs
FILE NUMBER(S):	CA 40593/05
COUNSEL:	A: E G Romaniuk R: J Fernon SC / M Vincent
SOLICITORS:	A: Beilby Poulden Costello, Sydney R: S&T Lawyers, Canberra
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3030/04
LOWER COURT JUDICIAL OFFICER:	Ashford DCJ
LOWER COURT DATE OF DECISION:	21 June 2005