Stefek v Garnama Pty Ltd

[2014] ACTSC 140

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Stefek v Garnama Pty Ltd

Medium Neutral Citation:

[2014] ACTSC 140

Hearing Date(s):

30 May 2014

DecisionDate:

5 June 2014

Before:

Master Mossop

Decision:

Application for extension of time granted. 

Application to amend statement of claim granted.

Category:

Interlocutory application

Catchwords: 

LIMITATION – personal injury – workers compensation – whether just and reasonable to extend time - whether any prejudice to the defendant – delay of previous solicitors

Legislation Cited:

Limitation Act 1985 (ACT) ss 36, 16A

Workers Compensation Act1951 (ACT)

Cases Cited:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Daroczy v B & J Engineering Pty Ltd (in liq)(1986) 67 ACTR 3
Doyle v Gillespie (2010) 4 ACTLR 188
Laws v Web Scaffolding [2010] ACTCA 3
Noja v Civil and Civic Pty Ltd & Ors (1990) 93 ALR 224
Paramasivam v Flynn (1998) 90 FCR 489
Sessions v Phengsiaroun [2008] ACTSC 132

Parties:

Zelka Stefek ( Appellant)

Garnama Pty Ltd t/as Les Mills Asia Pacific ( Respondent)

Representation:

Counsel

Mr R McIlwaine SC & Mr I Bradfield ( Plaintiff)

Mr R Crowe SC ( Defendant ‑ QBE)

Mr B Jones (Defendant – CGU)

Solicitors

Maurice Blackburn ( Plaintiff)

Dibbs Barker ( Defendant ‑ QBE)

Moray & Agnew (Defendant – CGU)

File Number(s):

SC 132 of 2012

Publication Restriction:

Nil

Decision Under Appeal: 

N/A  

Mossop M:

Applications

1. There are two applications before me. One is an application for an extension of time in which proceedings may be brought to 1 May 2012. The application is brought pursuant to s 36 of the Limitation Act 1985 (ACT). The other is an application to amend the statement of claim in the proceedings in accordance with a draft which is annexed to one of the affidavits filed in support of the application.

Appearances

1. Mr McElwain SC and Mr Bradfield appeared for the plaintiff.  Mr Crowe SC appeared for the defendant in the interests of QBE which was on risk from 1 July  2007.  Mr Jones appeared for the defendant representing the interests of CGU which was on risk during the period from 2001 to November 2002

Evidence

1. Read in support of the applications was an affidavit of the plaintiff’s solicitor which provided a procedural history of her involvement in the matter, annexed the proposed amended statement of claim and also annexed a report of Associate Professor David Champion dated 15 July 2013. 

1. Also read in support of the applications was the affidavit of the plaintiff dated 19 March 2014 which provided a history of her employment, the back and other pain that she suffered at work, the treatment that she was provided and her workers compensation claim.  It annexed various medical reports and other documents, in particular:

(a)letters from Dr David Hughes, a sports physician, dated 5 April 2005 and 18 May 2005;

(b)a report of a bone scan on 13 May 2005;

(c)an email from the plaintiff to “Melinda Honeychurch”, an employee of the defendant, dated…