Toppin v Coles Meyer Ltd and McVean - [2007] NSWDC 256

Reported Decision:
6 DCLR (NSW) 41

District Court

CITATION: TOPPIN v COLES MEYER LTD & McVEAN [2007] NSWDC 256

HEARING DATE(S): 6/11/07

EX TEMPORE JUDGMENT DATE: 6 November 2007

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

DECISION: 1. I grant leave to the plaintiff to join Mr Gary McVean as a defendant in the proceedings by the filing of an amended statement of claim in the form attached to Mr Day’s affidavit of 30 October 2007 ; 2. The amended statement of claim is to be filed and served by not later than 4pm on 13 November 2007; 3. The respondent is to pay the plaintiff’s costs of the motion.

CATCHWORDS: Whether proceedings statute barred - Date of discoverability

LEGISLATION CITED: Limitation Act 1969

PARTIES:
Robert John TOPPIN
COLES MYER LTD
Gary McVEAN

FILE NUMBER(S): Wagga Wagga 11/07

COUNSEL:
Plaintiff - I D Roberts SC - R J M Foord
Defendant - B S Kelly

SOLICITORS:
Plaintiff - Denniston & Day
Defendant - McCulloch & Buggy

JUDGMENT

1 The plaintiff seeks leave to join Gary McVean as a defendant in the proceedings. The plaintiff does not pursue the orders sought in paragraph 1(a) of the amended notice of motion filed on 30 October 2007.

2 The proposed second defendant opposes the application arguing that the proceedings are statute barred by reason of the provisions of Division 6 of the Limitation Act 1969. Those provisions require the commencement of proceedings within three years of the date upon which the cause of action which is the basis for the claim is discoverable. In this case the incident involved a slip and fall in the Coles Supermarket in Russell Street, Tumut, on 14 February 2004.

3 The plaintiff in his affidavit of 22 October 2007 states that he had entered the front doors of the supermarket, walked across a mat immediately inside the door and was walking in the direction of a checkout counter when he slipped on vinyl floor and suffered an injury to his right knee. He alleges that there was water on the floor in the area in which he had slipped.

4 He was cross-examined on his affidavit today and stated that he was told by the first defendant’s staff at the time of his injury that they did not know how the water came to be on the floor. The second defendant, it is alleged, is engaged by way of contractual arrangement by the first defendant.

5 The plaintiff stated that he was aware that the first defendant worked at the supermarket collecting trolleys. He was unaware that he was involved in any cleaning work but he says that he did see him on the day of his injury, hosing down a wall about forty metres away from where he fell.

6 The plaintiff’s evidence is that as far as his injury was concerned he went to Tumut Hospital after the accident. He was treated. He consulted with his general practitioner and was referred to a specialist, Dr…

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.

Keep reading for free

Create a free CaseChat account to read Toppin v Coles Meyer Ltd and McVean and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWDC 256
Decision Date: 6 November 2007

CaseChat Overview and Summary

In the case of Toppin v Coles Meyer Ltd and McVean, the plaintiff sought to amend their statement of claim to include a new defendant, Mr Gary McVean, in an action for personal injuries. The application was brought before the court to address whether the proposed amendment would be statute-barred under the Limitation Act. The defendants contested the application on the basis that the plaintiff's claim was statute-barred as the cause of action had accrued more than three years prior to the commencement of the proceeding, and the plaintiff had not discovered the new defendant's involvement within the limitation period.

The primary legal issue for the court was to determine whether the plaintiff's cause of action against Mr McVean was statute-barred given that the plaintiff only became aware of his involvement after the three-year limitation period had expired. The court needed to consider the principles of discoverability and whether the plaintiff could amend the statement of claim to include Mr McVean as a defendant despite the passage of time. Additionally, the court examined whether there were exceptional circumstances that would justify the amendment under the provisions of the Limitation Act.

The court found that the plaintiff had a genuine claim against Mr McVean, and the limitation period had not expired at the time of the discovery of Mr McVean's involvement. It was held that the date of discoverability was the relevant date for determining whether the proceedings were statute-barred. The court concluded that the plaintiff's claim against Mr McVean was not statute-barred, as the limitation period did not commence until the plaintiff discovered, or ought reasonably to have discovered, Mr McVean's involvement. Consequently, the court granted leave to the plaintiff to amend the statement of claim to include Mr McVean as a defendant.

The court ordered that the plaintiff was to file and serve the amended statement of claim by a specified date. Additionally, the court directed that the defendants were to pay the plaintiff's costs associated with the motion. This decision allowed the plaintiff to proceed with their claim against Mr McVean, despite the initial limitation concerns, ensuring that the plaintiff's right to seek redress was not unjustly impeded by the timing of their discovery of the new defendant's involvement.

Orders

Orders of the court

1. Leave granted to the plaintiff to join Mr Gary McVean as a defendant in the proceedings by the filing of an amended statement of claim in the form attached to Mr Day's affidavit of 30 October 2007

2. The amended statement of claim is to be filed and served by not later than 4pm on 13 November 2007

3. The respondent is to pay the plaintiff's costs of the motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	TOPPIN v COLES MEYER LTD & McVEAN [2007] NSWDC 256
HEARING DATE(S):	6/11/07
EX TEMPORE JUDGMENT DATE:	6 November 2007
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. I grant leave to the plaintiff to join Mr Gary McVean as a defendant in the proceedings by the filing of an amended statement of claim in the form attached to Mr Day’s affidavit of 30 October 2007 ; 2. The amended statement of claim is to be filed and served by not later than 4pm on 13 November 2007; 3. The respondent is to pay the plaintiff’s costs of the motion.
CATCHWORDS:	Whether proceedings statute barred - Date of discoverability
LEGISLATION CITED:	Limitation Act 1969
PARTIES:	Robert John TOPPIN COLES MYER LTD Gary McVEAN
FILE NUMBER(S):	Wagga Wagga 11/07
COUNSEL:	Plaintiff - I D Roberts SC - R J M Foord Defendant - B S Kelly
SOLICITORS:	Plaintiff - Denniston & Day Defendant - McCulloch & Buggy