Tierney v Chatswood Indoor Sports Centre Pty Ltd

[1999] NSWCA 266

CITATION:	TIERNEY v CHATSWOOD INDOOR SPORTS CENTRE PTY LTD & ANOR [1999] NSWCA 266
FILE NUMBER(S):	CA 40621/98
HEARING DATE(S):	19 July 1999
JUDGMENT DATE:	19 July 1999
PARTIES :	Lisa Maree Tierney - Claimant Chatswood Indoor Sports Centre Pty Ltd - First Opponent Robert J Simkin (Holdings) Pty Ltd, Paul Keller, Laurence Arthur Herbert, Stephen Kin Ming Liu, Kinox Enterprises Pty Ltd - Second Opponents
JUDGMENT OF:	Sheller JA at 1; Cole AJA at 18

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	3857/98
LOWER COURT JUDICIAL OFFICER:	Bowden ADCJ

COUNSEL:	D G T Nock SC - Claimant S G Campbell - First Opponent J A McIntyre - Second Opponents
SOLICITORS:	Collin Biggers & Paisley - Claimant Phillips Fox - First Opponent Moray & Agnew - Second Opponents
CATCHWORDS:	LIMITATION PERIOD - statement of claim filed out of time - extension not granted by trial Judge - whether in error - no such error
ACTS CITED:	Limitation Act 1969
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866
DECISION:	Application for leave dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40621/98
DC 3957/98

SHELLER JA
COLE AJA

Monday, 19 July 1999

TIERNEY v CHATSWOOD INDOOR SPORTS CENTRE PTY LTD & ANOR

JUDGMENT

1    SHELLER JA: This is an application by Lisa Maree Tierney for leave to appeal from a decision of Bowden ADCJ of 24 July 1998. I should mention that when the matter was called on, Mr Nock SC, who appears for the claimant, drew our attention to the fact that the Registrar had required the claimant to file a notice of appeal in the matter on the basis that leave had already been granted by the Court on an earlier date. How that came about requires investigation. I shall say no more about it than that the Court, by consent, revoked the order for leave and the proceedings today have gone ahead on the basis that leave was required.

2    The claimant alleges that she was injured while playing a game of netball on 15 September 1994. She did not file a statement of claim in respect of the incident until 2 December 1997. The named defendants in that statement of claim, who are the opponents to this application, were the occupier of the premises where the netball was being played, Chatswood Indoor Sports Centre Pty Limited, the first defendant, and persons and companies who were apparently the owners and proprietors of those premises, who were the second defendant.

3 Pursuant to the provisions of s18A of the Limitation Act 1969, the statement of claim was filed after the expiration of the limitation period of three years. An application was then made by notice of motion dated 29 May 1998 for an extension of time, which it was agreed was made pursuant to the provisions of s 60C and s 60E of the Limitation Act.

4    Section 60C(ii) enables the Court, if it decides it is just and reasonable to do so, to order that the limitation period for the cause of action be extended for such period not exceeding five years, as it determines.

5    Section 60E requires the Court to have regard to all the circumstances of the case and to the extent that they are relevant to the circumstances of the case to have regard to matters which are then set out in paragraphs (a) through to (h) of subs (1).

6    In his reasons for judgment, Bowden ADCJ described the factual material that was placed before him on the application. Amongst other things he referred to the fact that the first defendant, which appears to have been the organiser of a considerable number of games which were played amongst teams each week, during one of which games the claimant alleges she was injured, had apparently within a couple of months of the end of each competition thrown out its records, for reasons of space.

7    His Honour described the injuries which the claimant is said to have suffered as quite serious. The claimant said that, as a result of seeing a television program on 1 June 1995 she consulted a solicitor. In March 1996 she had a conference with a barrister, who told her that she had a case against the first defendant. On 26 February 1997 she received a letter from her solicitor together with a draft statement of claim. She received no correspondence or advices from the solicitor after that date. She said she had a total trust in her solicitor and expected her to look after her legal interests.

8    Subsequently on 17 October 1997, which was outside the limitation period, she attended at the offices of her present solicitors and was told that her claim was statute barred. On 2 December, as I have said, a statement of claim was filed.

9    His Honour referred to the terms of s60C and s60E and to each of the sub-par of subs (1) of s60E, dealing with the various matters that those paragraphs raise in the context of this application.

10    His Honour referred to recent cases, most notably that of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866, which have dealt with applications for extension of the time limitations under various statutory limitation provisions.

11    As a result of reviewing those decisions, his Honour posed the question: can a fair trial now be possible? It is accepted by the claimant that that was an appropriate question to be posed. His Honour said:

“I believe that there are great doubts about that, in fact, I think the probabilities are that there cannot. The plaintiff does not even have the name of the opposing team. It might be said that the fact of the accident itself is uncontested, and that really it is almost a legal question as to whether the first defendant is liable for allowing different sized players on the court at once. I have some doubts about that. But the plaintiff further makes her case that the means of egress were in breach of duty and more, that those means of egress caused substantial injury to the plaintiff. Those allegations as to the detail of the happenings on the court of that night, it seems to me cannot in all probability, be satisfactorily investigated now.”

12    His Honour then went on to add his views about various other matters referred to in s60E. In particular, he said:

“Among them is the question as to the explanation or otherwise of delay. I find that there is in this case a lack of adequate explanation. The evidence jumps from a conference with a barrister in March 1996 to a letter of February 1997, and then there is another jump to October 1997, with little more than the statement, that the plaintiff expected her solicitor to look after her legal interests. She was, as Mr Campbell I think rightly submitted, somewhat coy about her actions between February and October 1997.”

13    His Honour said that having considered the above, in all of the circumstances he was not satisfied that it was just and reasonable to extend the time and, accordingly, the notice of motion was dismissed.

14    Mr Nock submitted that the error in what Bowden ADCJ did is to be found in an implicit requirement that the plaintiff put before the Court, on an application of this sort, material which would demonstrate clearly what its case was. These were matters, which it was said, would ordinarily be got ready for the trial itself.

15    It was further said that the lack of adequate explanation related more to the period before the expiry of the time limitation than after it. It is worth remarking in passing that the statement of claim that was filed in December 1997 contained particulars against the first defendant of a kind which are unfortunately too common. Almost any conceivable type of particular was set out without any proper attempt to focus upon what the nature and particulars of the claim made against the defendant were. It is difficult to discern from the statement of claim itself what the nature of the case against the second defendant was.

16    It is accepted that in cases of this sort the question is whether the Court should, as a matter of discretion, exercise its discretion to extend the time within which proceedings can be brought and, by so doing, deny to the defendants the benefit of the statutory limitation. This has been discussed recently in a number of cases, most of which were referred to and applied by Bowden ADCJ. For my part, I do not see it as necessary to go in any detail to those decisions.

17    I am not persuaded by the submissions that have been made on behalf of the claimant, both in writing and orally, that there was any error in the approach that Bowden ADCJ took to this application. In my opinion, it was clearly open on the basis of a sound exercise of his Honour's discretion for him to come to the conclusion that he did. Accordingly, this application for leave to appeal should be dismissed with costs.

18    COLE AJA: I agree.

19    SHELLER JA: The order of the Court is that the application is dismissed with costs.

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