Wall v Toll Transport Pty Ltd - [2010] VSC 522

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

No. 117 of 2008

DAVID IAN WALL	Plaintiff
v
TOLL TRANSPORT PTY LTD & OTHERS	Defendants

---

JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 OCTOBER 2010
DATE OF JUDGMENT:	25 NOVEMBER 2010
CASE MAY BE CITED AS:	WALL v TOLL TRANSPORT PTY LTD
MEDIUM NEUTRAL CITATION:	[2010] VSC 522

---

Practice and Procedure – Joinder of parties - Rule 9.06 of the Supreme Court (General CivilProcedure) Rules 2005 – Removal of a defendant joined by consent on the papers – Claim statute-barred – Unconditional appearance and defence filed - Application by plaintiff for postponement of the bar - Discretionary considerations.

Limitation of Actions – Torts – Postponement of the bar - Section 36 and section 48 of Limitations of Actions Act 1936 (SA) – Material fact under s.48(3) of Limitation of Actions Act1936 (SA) – Exercise of discretion.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R H Stanley	Ryan Legal
For the First Defendant	Sally Knott, a solicitor	Minter Ellison
For the Second Defendant	Keiran O’Brien, a solicitor	DLA Phillips Fox
For the Third Defendant	Mr G Hevey	Ligeti Partners (as agents for Wallmans Lawyers)

HIS HONOUR:

By an amended writ, dated 20 November 2009, the plaintiff claims damages for personal injuries sustained on 31 August 2005 when he fell into a manhole. The writ was originally filed on 13 June 2008.

The proceeding is being managed in the Major Torts List.

On 20 November 2009, the plaintiff obtained leave of this Court, from Kaye J, to file and serve the amended writ and an amended statement of claim joining the City of Port Adelaide Enfield as the third defendant, alleging liability to him in negligence. The like claims against the original defendants in respect of this incident are not presently relevant.

The Court file reveals that a minute of proposed consent orders, signed by the solicitors for the existing parties to the proceeding, together with a copy of the proposed amended statement of claim was provided with a request, by email, that the orders sought be made on the papers. The joinder order was made by consent, on the papers.

It appears that the amended writ was duly filed and served and on 21 January 2010 the third defendant filed a defence, having filed an unconditional appearance on 17 December 2009.

The incident, when the plaintiff was injured, occurred in South Australia. The substantive law which governs the proceeding, including the application of any relevant limitation periods, is the law of South Australia.[1]
[1]John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503.

The Choice of Law (Limitation Periods) Act 1993 requires this Court to characterise an interstate or territory limitation law as part of the substantive law of that State or Territory.[2] The Act also requires of a court in respect of “a discretion conferred under a limitation law of a place being another State…

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 Wall v Toll Transport Pty Ltd 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: [2010] VSC 522
Decision Date: 25 NOVEMBER 2010

CaseChat Overview and Summary

In the matter of Wall v Toll Transport Pty Ltd, the plaintiff sought to recover damages for personal injuries sustained in a road accident. The defendant, Toll Transport, was initially joined by consent along with another party, who subsequently removed themselves from the case. The plaintiff applied for a postponement of the bar of the statute of limitations, arguing that the defendant's removal was without prejudice and that the other party had been joined due to a mistake. The case was heard in the Supreme Court of South Australia.

The legal issues before the court were whether the plaintiff's application for a postponement of the statute of limitations could be granted under section 48 of the Limitations of Actions Act 1936 (SA), and whether the material fact exception under section 48(3) of the Act applied in this case. The court also had to consider the exercise of discretion under section 36 of the Act, which allows for the postponement of the bar in cases where justice so requires.

The court found that the defendant's removal was not without prejudice and that the other party had been joined due to a mistake. However, the court held that the plaintiff's application for a postponement of the statute of limitations was not within the scope of section 48 of the Act, as the plaintiff had failed to establish that the defendant's removal was due to a material fact that was unknown to the plaintiff at the time the cause of action accrued. The court further held that the exercise of discretion under section 36 of the Act was not appropriate in this case, as the plaintiff had not demonstrated any exceptional circumstances that warranted a postponement of the bar.

Accordingly, the court dismissed the plaintiff's application for a postponement of the statute of limitations and the defendant's removal from the case stood. The plaintiff's claim was statute-barred, and the defendant was no longer a party to the proceedings.

Orders