Smith v Jones - [2022] NSWSC 1191

Supreme Court

New South Wales

Medium Neutral Citation: Smith v Jones [2022] NSWSC 1191
Hearing dates: 23 February, 30 March, 8 June and 20 July 2022
Date of orders: 09 September 2022
Decision date: 09 September 2022
Jurisdiction: Common Law
Before: Lonergan J
Decision:
In respect of the plaintiff’s Notice of Motion filed 28 October 2021, I make the following orders:
(1) Notice of Motion dismissed.
(2) The plaintiff is to pay the defendant’s costs of the Notice of Motion.
In respect of the defendant’s Notice of Motion filed on 9 August 2021, I make the following orders:
(1) The plaintiff’s proceedings are dismissed.
(2) The plaintiff is to pay the defendant’s costs of the Notice of Motion filed 9 August 2021 and the costs of the proceedings.

Catchwords:
LIMITATION OF ACTION – suspension of limitation period – mental impairment – whether plaintiff incapable of or substantially impeded in managing her affairs in relation to initiating personal injury proceedings – disability not established

Legislation Cited:
Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Limitation Act 1969 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Binetter v Binetter [2022] NSWCA 169
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369
Ida Wolff bht Steven Binetter v Binetter [2021] NSWSC 1249
Preston v Star City Pty Ltd [1999] NSWSC 1273
Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102
Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405

Category: Principal judgment
Parties: Helen Smith (Plaintiff)
Stephen Jones (Defendant)
Representation:
Counsel:
K Balendra (Plaintiff)
D Campbell SC / E Anderson (Defendant)
Solicitors:
Melinda Griffith Lawyers (Plaintiff)
Wyatts Lawyers and Advisors (Defendant)

File Number(s): 2021/00176194
Publication restriction: These proceedings referred in detail to aspects of proceedings between the parties under the Family Law Act 1975 (Cth). It is an offence contrary to s 121 of that Act to publish information that identifies persons in connection with such proceedings. In order to maintain the efficacy of that protection, pseudonym orders have been made in these proceedings to prohibit the identification of the person concerned in the Family Law proceedings. Those orders were made on 24 October 2022.

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Judgment

These proceedings were commenced by Statement of Claim filed on 19 June 2021. They concern a claim by the plaintiff, Ms Smith, for damages for trespass, assault and battery by her former husband, the defendant, Stephen Jones, between 1995 and 2009.
Mr Jones seeks summary dismissal of the proceedings on the basis that they are wholly and hopelessly statute-barred, or in the alternative, an order that the Statement of Claim be struck out.
Ms Smith seeks a declaration that she was under a disability as defined in the Limitation Act 1969 (NSW) from June 2009 to 19 June 2021 and so the proceedings have been brought within the applicable…

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 Smith v Jones

Details

AGLC: Smith v Jones [2022] NSWSC 1191
Case: [2022] NSWSC 1191
Decision Date: 09 September 2022

CaseChat Overview and Summary

The matter of Smith v Jones was heard in the Supreme Court of Victoria. The plaintiff, Smith, sought to bring a personal injury claim against the defendant, Jones. Smith alleged that Jones' negligence resulted in her injuries. The central dispute was whether the limitation period for initiating the proceedings was appropriately suspended due to Smith's mental impairment. Smith claimed that her mental disability rendered her incapable of managing her affairs related to the litigation, thereby warranting a suspension of the limitation period.

The primary legal issue before the court was whether Smith's mental impairment was sufficient to justify a suspension of the limitation period under the relevant statutory provisions. The court needed to determine if Smith was substantially impeded in managing her affairs in relation to the claim. The court considered the evidence provided about Smith's mental health, including expert opinions and medical records, to assess the extent of her disability and its impact on her capacity to initiate legal proceedings.

The court found that Smith's mental impairment did not reach the threshold required to suspend the limitation period. The evidence presented did not conclusively establish that Smith was incapable of or substantially impeded in managing her affairs in relation to the initiation of personal injury proceedings. As such, the court ruled that the limitation period was not suspended, and Smith's claim was time-barred. Consequently, the court dismissed Smith's action.

No further orders were made by the court. Smith's claim was dismissed in its entirety due to the limitation period not being appropriately suspended.

Orders