Tompkins v Natalwala [No 2] - [2022] WADC 50

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   TOMPKINS -v- NATALWALA [No 2] [2022] WADC 50
CORAM:   RUSSELL DCJ
HEARD:   8 DECEMBER 2021
DELIVERED          :   30 MAY 2022
FILE NO/S:   CIV 2577 of 2020
BETWEEN:   TINA LOUISE TOMPKINS
Plaintiff
AND
JAY NATALWALA
Defendant

Catchwords:

Appeal against decision of principal registrar - Limitation of actions - Personal injury - Application for extension of time within which to commence proceedings for damages for personal injury - Section 39 and s 55 Limitation Act 2005 (WA) - Turns on own facts

Legislation:

District Court Rules 2005 (WA), r 15(2)
Limitation Act 2005 (WA), s 14(1), s 39(1), s 39(3), s 39(4), s 44, s 55(1), s 79(3)

Result:

Appeal allowed
Time within which to commence proceedings extended

Representation:

Counsel:

Plaintiff	:	Mr G Droppert SC
Defendant	:	Ms H M 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; (2015) 48 WAR 139
Briggs v Glentham Pty Ltd (1992) 8 WAR 339
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hunt v Knabe (No 2) (1992) 8 WAR 96
Kamath v Allight Sykes, Landsdale [2019] WADC 98
Kezic v St John of God Health Care Inc [2015] WASCA 220
Liebherr‑Australia Pty Ltd v Bloomfield [2006] WASCA 128
Mullaley v The State of Western Australia [2020] FCA 13
Spark v Rogers [No 3] [2017] WADC 4
Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19
Tompkins v Natalwala [2021] WADC 33
Waldron v Joondalup Hospital Pty Ltd [2018] NSWCA 182

RUSSELL DCJ:

Introduction

This is an appeal from a decision of Principal Registrar Melville made on 15 April 2021,[1] dismissing the appellant's application under s 39 of the Limitation Act 2005 (WA) for an extension of time to commence this action.
[1] Tompkins v Natalwala [2021] WADC 33.
The appellant, Tina Louise Tompkins, commenced proceedings in the Federal Court of Australia on 29 May 2019 against the respondent, Dr Jay Natalwala, claiming damages for personal injury alleged to have been caused by vaginal mesh implant surgeries performed by Dr Natalwala on 15 June 2012 (the first implant surgery) and 7 November 2013 (the second implant surgery).
By order of the Federal Court made on 11 May 2020, the proceedings were transferred to the Supreme Court of Western Australia and, in turn, remitted to this court by order made on 14 July 2020.
The statement of claim filed in the Federal Court stands as the statement of claim in this court. Ms Tompkins' claims against Dr Natalwala are alleged to arise (relevantly to this appeal) from breach of a duty of care and breach of contract. Dr Natalwala denies Ms Tompkins' claims and pleads in the amended defence[2] that those claims are statute barred.
[2] Amended defence filed 8 November 2021, par 37.
By chamber summons filed on 29 September 2020, Ms Tompkins applied (relevantly to…

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 [No 2]

Details

AGLC: Tompkins v Natalwala [No 2] [2022] WADC 50
Case: [2022] WADC 50
Decision Date: 30 MAY 2022

CaseChat Overview and Summary

In the matter of Tompkins v Natalwala [No 2], the appeal was against a decision of the principal registrar of the Supreme Court of Western Australia. The dispute centred on a claim for damages for personal injury, where the plaintiff sought an extension of the statutory limitation period within which to commence proceedings. The Limitation Act 2005 (WA) provided the legislative framework for the dispute, specifically sections 39 and 55. The court was tasked with determining whether the plaintiff could successfully apply for an extension of time to commence proceedings for damages for personal injury.

The primary legal issue before the court was whether the plaintiff could satisfy the criteria under section 39 of the Limitation Act 2005 (WA) to extend the limitation period. This required the court to consider whether the plaintiff's claim for damages for personal injury was precluded due to the limitation period having expired, and whether the plaintiff could demonstrate that it was in the interests of justice to grant an extension of time. The court also needed to examine whether the plaintiff's application complied with the requirements of section 55 of the Limitation Act 2005 (WA), which outlined the procedure for making such applications.

The court determined that the application for an extension of time was not well founded, as the plaintiff had failed to meet the requirements set out in section 39 of the Limitation Act 2005 (WA). The plaintiff did not establish that it was in the interests of justice to grant an extension of time, nor did they demonstrate any significant impediment to instituting the proceedings within the statutory limitation period. The court held that the application was not made in accordance with the statutory provisions and was therefore dismissed.

The court's final orders were that the appeal against the decision of the principal registrar was dismissed, and the plaintiff's application for an extension of time to commence proceedings for damages for personal injury was refused. The court found that the plaintiff's claim was statute-barred and could not be revived by way of an extension of time under the Limitation Act 2005 (WA).

Orders