Turagadamudamu v PMP Ltd - [2009] NSWCA 120

Reported Decision: 75 NSWLR 397[2010] ALMD 6590

New South Wales

Court of Appeal

CITATION: Turagadamudamu v PMP Limited [2009] NSWCA 120
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 December 2008

JUDGMENT DATE:
26 May 2009

JUDGMENT OF: Beazley JA at 1; Ipp JA at 141; Campbell JA at 142

DECISION: 1. Grant leave to appeal;
2. Appeal dismissed;
3. Set aside the order for costs made by the trial judge and note that there is no order as to costs in respect of the hearing at first instance and on appeal with the intent that the parties bear their own costs of each of those proceedings.

CATCHWORDS: LIMITATION OF ACTIONS – proceedings for damages for personal injury – statutes of limitation – expiration of primary limitation period and secondary limitation period – whether an order can be made under the Limitations Act, s 60C after the expiry of the secondary limitation period - PROCEDURE – commencement of proceedings for damages for personal injury – whether the filing of a notice of motion with a statement of claim annexed commences proceedings – whether an order can then be made nunc pro tunc - LIMITATION OF ACTIONS – proceedings for damages for personal injury – whether the statutory requirement in the Limitations Act, s 68A confers a substantive right on the opposing party

LEGISLATION CITED: Civil Procedure Act 2005, s 16 and 63
Companies Act 1961 (Vic), s 199
Corporations Law (Cth), s 459P
Fatal Accidents Act 1959 (WA), s 7
Legal Profession Act 2004, s 347
Limitation Act 1969, s 11, s 18A, s 60C, s 60G, s 60H, s 63, s 78, and sch 5, cl 4.4
Limitation of Actions Act 1974 (Qld), s 31
Limitations of Actions Act 1958 (Vic), s 23A
Motor Accidents Act 1988
Uniform Civil Procedure Rules 2005, Pt 6, Pt 18, r 4.10, r 6.1, r 6.2, r 6.3, r 6.5, r 6.6, r 6.24, r 6.28, r 12.11, r 18.1, r 25.2 and r 36.4
Workers Compensation Act 1987, s 151D and 151Z

CATEGORY: Principal judgment

CASES CITED: Bestobell Overseas Ltd v Carden [1988] VR 891
Bingham v England (1996) 23 MVR 331
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Clarke v Bailey (1993) 30 NSWLR 556
Dandashli v Dandashli (Court of Appeal, 16 December 1996, unreported)
Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114
Fernance v Nominal Defendant (1989) 17 NSWLR 710
Guss v Veenhuizen (No 2) [1976] HCA 57; (1976) 136 CLR 47
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503
Jol v State of New South Wales (1998) 45 NSWLR 283
Ketteman v Hansel Properties Ltd [1987] 1 AC 189
Mealing v Chand [2003] NSWCA 205; (2003) 57 NSWLR 305
Re Sydney Formworks Pty Ltd [1965] NSWR 646
Re Testro Bros Consolidated Ltd [1965] VR…

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: [2009] NSWCA 120
Decision Date: 26 May 2009

CaseChat Overview and Summary

The parties to this appeal were Turagadamudamu (the applicant) and PMP Ltd (the respondent). The dispute concerned the applicant's claim for damages for personal injury, specifically whether proceedings could be validly commenced and an order made under section 60C of the *Limitations Act 1969* (NSW) after the expiry of both the primary and secondary limitation periods. The appeal was heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were: firstly, whether the filing of a notice of motion with an annexed statement of claim constituted the commencement of proceedings for the purposes of the *Limitations Act*; and secondly, whether an order could be made *nunc pro tunc* (as if from an earlier date) under section 60C of the *Limitations Act* after the expiry of the secondary limitation period. The court also considered whether section 68A of the *Limitations Act*, which requires the applicant to satisfy the court that the respondent will not be prejudiced by the late filing of proceedings, conferred a substantive right on the opposing party.

The Court of Appeal held that the filing of a notice of motion with a statement of claim annexed did not commence proceedings under the *Limitations Act*. It further determined that section 60C of the *Limitations Act* could not be invoked to make an order *nunc pro tunc* after the expiry of the secondary limitation period. The court reasoned that the statutory scheme contemplated the commencement of proceedings within the prescribed periods, and that section 68A did not confer a substantive right but rather a procedural safeguard.

Consequently, the Court of Appeal granted leave to appeal, but dismissed the appeal. The order for costs made by the trial judge was set aside, and it was noted that there would be no order as to costs in respect of the hearing at first instance or the appeal, meaning each party was to bear their own costs for both proceedings.

Orders

Orders of the court

1. Grant leave to appeal;

2. Appeal dismissed;

3. Set aside the order for costs made by the trial judge and note that there is no order as to costs in respect of the hearing at first instance and on appeal with the intent that the parties bear their own costs of each of those proceedings.

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:	Turagadamudamu v PMP Limited [2009] NSWCA 120 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	4 December 2008
JUDGMENT DATE:	26 May 2009
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 141; Campbell JA at 142
DECISION:	1. Grant leave to appeal; 2. Appeal dismissed; 3. Set aside the order for costs made by the trial judge and note that there is no order as to costs in respect of the hearing at first instance and on appeal with the intent that the parties bear their own costs of each of those proceedings.
CATCHWORDS:	LIMITATION OF ACTIONS – proceedings for damages for personal injury – statutes of limitation – expiration of primary limitation period and secondary limitation period – whether an order can be made under the Limitations Act, s 60C after the expiry of the secondary limitation period - PROCEDURE – commencement of proceedings for damages for personal injury – whether the filing of a notice of motion with a statement of claim annexed commences proceedings – whether an order can then be made nunc pro tunc - LIMITATION OF ACTIONS – proceedings for damages for personal injury – whether the statutory requirement in the Limitations Act, s 68A confers a substantive right on the opposing party
LEGISLATION CITED:	Civil Procedure Act 2005, s 16 and 63 Companies Act 1961 (Vic), s 199 Corporations Law (Cth), s 459P Fatal Accidents Act 1959 (WA), s 7 Legal Profession Act 2004, s 347 Limitation Act 1969, s 11, s 18A, s 60C, s 60G, s 60H, s 63, s 78, and sch 5, cl 4.4 Limitation of Actions Act 1974 (Qld), s 31 Limitations of Actions Act 1958 (Vic), s 23A Motor Accidents Act 1988 Uniform Civil Procedure Rules 2005, Pt 6, Pt 18, r 4.10, r 6.1, r 6.2, r 6.3, r 6.5, r 6.6, r 6.24, r 6.28, r 12.11, r 18.1, r 25.2 and r 36.4 Workers Compensation Act 1987, s 151D and 151Z
CATEGORY:	Principal judgment
CASES CITED:	Bestobell Overseas Ltd v Carden [1988] VR 891 Bingham v England (1996) 23 MVR 331 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Clarke v Bailey (1993) 30 NSWLR 556 Dandashli v Dandashli (Court of Appeal, 16 December 1996, unreported) Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114 Fernance v Nominal Defendant (1989) 17 NSWLR 710 Guss v Veenhuizen (No 2) [1976] HCA 57; (1976) 136 CLR 47 John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 Jol v State of New South Wales (1998) 45 NSWLR 283 Ketteman v Hansel Properties Ltd [1987] 1 AC 189 Mealing v Chand [2003] NSWCA 205; (2003) 57 NSWLR 305 Re Sydney Formworks Pty Ltd [1965] NSWR 646 Re Testro Bros Consolidated Ltd [1965] VR…