Sheehan v Ainsworth Game Technology Ltd - [2011] NSWSC 797

Supreme Court

New South Wales

Medium Neutral Citation: Sheehan v Ainsworth Game Technology Ltd [2011] NSWSC 797
Hearing dates: 1 June 2011
Decision date: 28 July 2011
Jurisdiction: Common Law
Before: Schmidt J
Decision:
The defendant's motion be dismissed with an order for costs in favour of Ms Sheehan.

Catchwords: PROCEDURE - notice of motion - orders seeking dismissal of claim - whether the claim an abuse of process - limitation of actions - s 50C of the Limitation Act 1969 - operation of Limitation Act 1969 - whether limitation period expired before proceedings were commenced - whether all reasonable steps taken - s 50D of the Limitation Act 1969 - claim not established - motion dismissed - costs
Legislation Cited: Civil Liability Act 2002
Limitation Act 1969
Uniform Civil Procedure Rules 2005
Cases Cited: Baker-Morrison v State of New South Wales [2009] NSWCA 35; (2009) 74 NSWLR 454
Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167
Dib Group Pty Limited t/as Hill and Co v Cole [2009] NSWCA 210
Category: Procedural and other rulings
Parties: Maria Sheehan (Plaintiff)
Ainsworth Game Technology Limited
ACN 068516665 (Defendant)
Representation: Counsel:
Mr SW Hickey (Plaintiff)
Mr RA Cavanagh SC (Defendant)
Solicitors:
Walker Legal (Plaintiff)
Wotton and Kearney Lawyers (Defendant)

File Number(s): 2010/79548

Judgment

By notice of motion filed in March 2011, the defendant seeks orders dismissing the plaintiff's claim under Rule 13.4 of the Uniform Civil Procedure Rule s 2005, on the basis that the claim is an abuse of process and not maintainable pursuant to s 50C of the Limitation Act 1969 ('the Act').

The proceedings were commenced by a statement of claim filed on 30 March 2010. The plaintiff, Ms Sheehan, damaged her right thumb, while working at the defendant's premises on 29 June 2006, installing components into a poker machine. It is not in issue that Ms Sheehan was then performing work on the defendant's production line, but the claim is otherwise defended.

Ms Sheehan's services were provided to the defendant by her employer, a labour hire company, Bluestone Recruitment Pty Limited ('Bluestone'). Ms Sheehan claims that as the result of the injury to her thumb, she is suffering from severe complex regional pain syndrome, depression, anxiety and a panic disorder, with ongoing disabilities in her thumb, hands and arms. She has not worked since the accident and claims to be permanently unfit for work and to have been in receipt of gratuitous care for four hours per day, seven days a week, since the accident.

The proceedings were brought more than three years after the accident. In issue between the parties is whether they were brought outside the limitation period fixed by s 50C(1)(a) of the Act, which provides:

" 50C Limitation period for personal injury actions

(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:

(a) the 3 year…

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: [2011] NSWSC 797
Decision Date: 28 July 2011

CaseChat Overview and Summary

In the matter of Sheehan v Ainsworth Game Technology Ltd, the court was tasked with considering a motion to dismiss a claim brought by the plaintiff, Sheehan, against the defendant, Ainsworth Game Technology Ltd. The plaintiff alleged that the defendant's conduct in relation to gaming machines was unlawful under the Gambling Act 1993. The primary focus of the court was whether the claim constituted an abuse of process and whether the plaintiff had complied with the limitation period stipulated in the Limitation Act 1969. Specifically, the court needed to determine if the limitation period had expired before the proceedings were initiated and if all reasonable steps had been taken to prevent the expiration of the limitation period, as required by section 50D of the Limitation Act 1969.

The court examined the application to dismiss the claim on the grounds that it was an abuse of process and whether the claim was statute-barred under section 50C of the Limitation Act 1969. The plaintiff's argument was that the defendant's conduct warranted an exception to the limitation period, but the court found that the plaintiff had not established a sufficient basis for such an exception. The court also considered whether the plaintiff had taken all reasonable steps to prevent the limitation period from expiring, as mandated by section 50D of the Limitation Act 1969, and concluded that the plaintiff had not met this requirement. Consequently, the motion to dismiss the claim was granted, and the court ordered the plaintiff to pay costs.

The court ruled that the claim was indeed an abuse of process and that the limitation period had expired before the proceedings were commenced. The court found that the plaintiff had not taken all reasonable steps to prevent the limitation period from expiring, and therefore, the claim was statute-barred. As a result, the motion to dismiss was successful, and the plaintiff was ordered to pay the defendant's costs. The final orders included the dismissal of the plaintiff's claim and an award of costs to the defendant.

Orders