Syrett v Vorbach No. DCCIV-99-336 - [2001] SADC 46

SYRETT V VORBACH
[2001] SADC 46
1................ JUDGE BURLEY......... The plaintiff claims damages from the defendant for alleged breach of contract and negligence in respect of medical advice and treatment received by her from the defendant between May and July 1984. By paragraph 24 of her statement of claim she seeks an extension of time to bring the action pursuant to the provisions of Section 48 of the Limitation of Actions Act 1936 (the Act). By order dated 6 October 2000, it was directed that the application for an extension of time be heard and determined before any other issues in this action. The application was listed for trial on 21 February 2001 when Mr Halliday appeared for the plaintiff and Mr Besanko QC appeared for the defendant.
2 The relevant parts of Section 48 of the Act are as follows:-
“48.(1) Subject to this section, where an Act ... prescribes or limits the time for- -
(a) instituting an action; ...

a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2) A court may exercise the powers conferred by this section in respect of any action that- -
(a).... the court has jurisdiction to entertain;
or
(b).... the court would, if the action were not out of time, have jurisdiction to entertain.

(3)... This section does not- -
(a).... [immaterial];
or
(b).... empower a court to extend a limitation of time prescribed by this Act unless it is satisfied- -
(i).... that facts material to the plaintiff’s case were not ascertained by him until some point of time ... occurring after the expiration of [the limitation] period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff;
or
(ii)... [immaterial];

and that in all the circumstances of the case it is just to grant the extension of time.”

3      The action was not commenced until 10 March 1999, well after the expiry of the limitation period.
4      It is accepted by both parties that the Court has jurisdiction to entertain this application.
5 Section 48(3)(b) applies because the period of limitation has been prescribed by the Act. It is therefore necessary to determine whether the plaintiff has ascertained facts material to her case at some point in time occurring after the expiration of the limitation period and that the action was instituted within twelve months after the ascertainment of those facts and that in all the circumstances of the case it is just to grant the extension of time.
6      In Lovett v Le Gall (1975) 10 SASR 479, the Full Court considered what constituted “facts material to the plaintiff’s case”. Bray CJ said at 482.9:
“... I think the phrase takes in the whole complex of evidence and argument which will be advanced at the trial ...”

7 Wells J said at 485-486:
“Counsel concentrated most of their attention…

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: [2001] SADC 46
Decision Date: 30 March 2001

CaseChat Overview and Summary

The case of Syrett v Vorbach was heard by Judge Burley in the Supreme Court of South Australia. The plaintiff, Syrett, sought damages from the defendant, Vorbach, for alleged breach of contract and negligence in medical advice and treatment provided between May and July 1984. The primary legal issue was whether Syrett could obtain an extension of time to bring her action under Section 48 of the Limitation of Actions Act 1936. This section allows for the extension of a limitation period if the plaintiff can prove that material facts were not ascertained until after the period had expired and that the action was instituted within twelve months of the ascertainment of those facts. The court had to determine if Syrett had indeed ascertained new material facts within the required timeframe and if it was just to grant the extension.

Judge Burley examined the evidence presented by Syrett and found that she had ascertained material facts on or about 11 June 1998 and 1 March 2000. However, the court ruled that facts ascertained after the commencement of the proceedings could not be relied upon for the purpose of extending the limitation period. The judge considered the submissions made by both parties and the precedent set in previous cases. The court held that the discretion to grant the extension of time should be exercised in favour of Syrett, as the delay in her commencing proceedings was not due to her inaction but rather her unawareness of a potential claim against Vorbach until 1997. The judge concluded that the prejudice to Vorbach, primarily due to the destruction of his clinical notes, did not outweigh the potential loss to Syrett of pursuing her claim. Consequently, the court ordered that the time for the commencement of the action be extended to 10 March 1999.

Orders