Stinton v Amaca Pty Ltd - [2014] VSC 150

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 01738

EDWARD STINTON	Plaintiff
v
AMACA PTY LTD (FORMERLY JAMES HARDY & COY PTY LTD)	Defendant

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	7 April 2014
DATE OF JUDGMENT:	7 April 2014
CASE MAY BE CITED AS:	Stinton v Amaca Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VSC 150

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PRACTICE AND PROCEDURE — Extending validity of writ — Writ issued in respect of claim for damages for personal injuries, being mesothelioma — Service of writ delayed whilst claim investigated — Plaintiff died after issue of writ and before service — Deceased left Will appointing son as executor and trustee — Unexplained delay in applying for probate of Will — Claim survives for benefit of Plaintiff’s estate under s 29 Administration and Probate Act 1958 — Validity of writ extended to enable probate to be obtained and personal representative substituted pursuant to r 9.09 of the Supreme Court (General Civil Procedure) Rules 2005.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M. McGarvie, solicitor	Slater & Gordon Limited
For the Defendant	No appearance

HIS HONOUR:

Introduction

The plaintiff applies pursuant to r 5.12 of the Supreme Court (General Civil Procedure) Rules 2005 (“Rules”) to extend the validity of the writ for service.[1]
[1]The summons is ex parte and was filed on 4 April 2014.

The writ was issued on 9 April 2013 with the general endorsement claiming damages for personal injuries, being mesothelioma diagnosed in approximately February 2013, and suffered as a consequence of the negligent exposure of the plaintiff to asbestos dust, particles and fibres through the use of asbestos products manufactured and/or supplied by the defendant.

Background

The application is supported by the affidavit of Maria McGarvie, a lawyer employed by the plaintiff’s solicitors. She deposes that:

(a) On 25 March 2013 she took instructions from the plaintiff at his home in the Northern Territory;

(b) The plaintiff was born on 28 August 1936 in Birmingham, UK, and migrated to Australia in August 1967. He died on 13 May 2013;

(c) The plaintiff had been employed all his life in the building industry and instructed that he had been exposed to asbestos cement building materials over the course of his employment;

(d) The solicitors for the plaintiff issued the generally endorsed writ, as I have said, on 9 April 2013 as a matter of urgency to protect the plaintiff’s rights to claim general damages. The writ was not served on the defendant during the deceased’s lifetime because investigations were still being conducted to support the claim;

(e) At the time of death the deceased was married to Vilma Stinton and was living with her. He had two sons from that marriage, Mr Carl Stinton and Mr Mark Stinton. The plaintiff has previously been married and has two children from his first marriage;

(f) The deceased prepared a Will shortly before he died, executed on 8 May 2013,…

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 Stinton v Amaca Pty Ltd

Details

AGLC: Stinton v Amaca Pty Ltd [2014] VSC 150
Case: [2014] VSC 150
Decision Date: 7 April 2014

CaseChat Overview and Summary

The case of Stinton v Amaca Pty Ltd involved a claim for damages for personal injuries, specifically mesothelioma, against Amaca Pty Ltd. The claim was initiated through a writ, but service of the writ was delayed while the claim was investigated. Unfortunately, the plaintiff passed away before the writ could be served, leaving behind a Will appointing his son as executor and trustee. Despite the delay, the court was asked to consider whether the claim could proceed for the benefit of the plaintiff's estate. The deceased plaintiff's Will was left unprobated for an unexplained period, complicating the substitution of the personal representative.

The legal issues before the court included whether the writ's validity could be extended to accommodate the delay in obtaining probate of the Will and substituting the personal representative. The court had to interpret the relevant provisions of the Administration and Probate Act 1958 and the Supreme Court (General Civil Procedure) Rules 2005 to determine if the claim could proceed posthumously. The court was required to balance the statutory requirements for extending the writ's validity with the procedural rules governing the substitution of a personal representative.

The court found that the writ's validity could indeed be extended under section 29 of the Administration and Probate Act 1958 to enable the estate to pursue the claim. The court noted that the unexplained delay in applying for probate did not preclude the claim from proceeding, provided that the statutory requirements were met. By applying rule 9.09 of the Supreme Court (General Civil Procedure) Rules 2005, the court allowed the son, as executor and trustee, to be substituted as the personal representative. This ruling ensured that the claim could continue for the benefit of the plaintiff's estate.

The court's decision allowed the claim to proceed posthumously and enabled the deceased plaintiff's son to be substituted as the personal representative. This outcome ensured that the estate could seek damages for the injuries sustained by the deceased plaintiff. The court's ruling was grounded in statutory interpretation and procedural rules, affirming the flexibility of the legal system to accommodate unforeseen circumstances while upholding the rights of the deceased's estate.

Orders