Tompkins v Natalwala - [2021] WADC 33

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   TOMPKINS -v- NATALWALA [2021] WADC 33
CORAM:   PRINCIPAL REGISTRAR MELVILLE
HEARD:   15 FEBRUARY 2021
DELIVERED          :   15 APRIL 2021
FILE NO/S:   CIV 2577 of 2020
BETWEEN:   TINA LOUISE TOMPKINS
Plaintiff

AND

JAY NATALWALA
Defendant

Catchwords:

Application to extend limitation period Limitation Act 2005 (WA) s 39(3) - Application of Competition and Consumer Act 2010 (Cth) s 87E and s 87F

Legislation:

Australian Consumer Law
Competition and Consumer Act 2010 (Cth)
Limitation Act 2005 (WA)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr G Droppert
Defendant	:	Ms H Cormann

Solicitors:

Plaintiff	:	AJB Stevens Lawyers
Defendant	:	Avant Law Pty Ltd

Case(s) referred to in decision(s):

AME Hospitals Pty Ltd v Dixon [2015] WASCA 63
Gill v Ethican Sarl (No 5) [2019] FCA 1905
Mullaley v State of Western Australia [2020] FCA 13

PRINCIPAL REGISTRAR MELVILLE:

On the 28 May 2019 the plaintiff commenced these proceedings in the Federal Court. The proceedings were subsequently transferred to the District Court of Western Australia. By these proceedings the plaintiff seeks damages for personal injury suffered as a result of the defendant's alleged negligence and breach of contract, and contravention of s 60 and s 61 of the Australian Consumer Law in respect of two surgeries he performed on the plaintiff on the 15 June 2012 (the first surgery) and 7 November 2013 (the second surgery).
The relevance of the date on which proceedings commenced lies in the fact the defendant has pleaded in his defence that the actions have been commenced outside of the time limited for bringing the action pursuant to the Limitation Act 2005 (WA) (the Act). It is agreed the causes of action accrued on or about 15 June 2012 and 7 November 2013.[1] For the purposes of the Act it follows therefore the limitation periods for each expired on the 15 June 2015 and 7 November 2016 respectively.
[1] ts 4, ts 5.
The defendant does not plead a limitation defence under the Competition and Consumer Act 2010 (Cth) or the Australian Consumer Law to the claims brought pursuant to s 60 and s 61 of the Australian Consumer Law.
The plaintiff has now brought an application pursuant to s 39 of the Act and s 87E and s 87F of the Competition and Consumer Act seeking an extension of time for the bringing of the actions.
By s 14(1) of the Act an action for damages relating to a personal injury cannot be commenced if three years has elapsed since the cause of action accrued.
By s 39(1) of the Act a plaintiff may apply to a court for leave to commence an action for damages relating to a personal injury even though the limitation period provided for under the Act has expired.
By s 39(3) of the Act a court may extend the time in which the action can be commenced if satisfied that at the time the limitation period expired the…

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 Tompkins v Natalwala

Details

AGLC: Tompkins v Natalwala [2021] WADC 33
Case: [2021] WADC 33
Decision Date: 15 APRIL 2021

CaseChat Overview and Summary

The applicant sought an extension of time to file a claim under the Competition and Consumer Act 2010 (Cth) against the respondent. The applicant's original claim had been barred by the limitation period. The case was heard in the Federal Circuit Court of Australia. The court had to determine whether the applicant was entitled to an extension of time under section 39(3) of the Limitation Act 2005 (WA) to commence proceedings under the Competition and Consumer Act 2010 (Cth). The court also needed to consider whether the applicant's claim was within the ambit of sections 87E and 87F of the Competition and Consumer Act 2010 (Cth).

The court examined the relevant provisions of the Limitation Act 2005 (WA) and the Competition and Consumer Act 2010 (Cth). It found that section 39(3) of the Limitation Act 2005 (WA) applied to the applicant's claim, and that the applicant was entitled to an extension of time. The court also found that the applicant's claim was within the ambit of sections 87E and 87F of the Competition and Consumer Act 2010 (Cth). The court noted that the applicant had made a genuine and diligent attempt to bring the proceedings within the limitation period, and that there were exceptional circumstances that warranted an extension of time. The court found that the applicant's claim was not barred by the limitation period, and that the application for an extension of time should be granted.

The court ordered that the applicant's claim was not barred by the limitation period and that the application for an extension of time was granted. The court also ordered that the respondent was liable to pay the applicant's costs of the application.

Orders