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WEIR v WEIR

WEIR v WEIR

Case [2007] SADC 113 31 October 2007

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
WEIR v WEIR
[2007] SADC 113
Judgment of His Honour Judge David Smith
31 October 2007
LIMITATION OF ACTIONS
Extension of period of limitation - action for damages for personal injuries instituted out of time – material facts ascertained by plaintiff after the institution of the action – whether plaintiff can rely on such facts and qualify for extension of time – discussion of whether limitation of action provisions extinguishes cause of action or merely bars the remedy not the right.
Held: plaintiff’s application for extension of time failed to comply with extension of time provisions in Limitation of Actions Act 1936 and so remains statute barred.
Held: also that plaintiff’s failure to issue within limitation of time prescribed did not result in extinguishment of the cause of action but merely the barred remedy so that neither entry of Summary Judgment for defendant nor dismissal of plaintiff’s action was appropriate – plaintiff’s action as presently constituted is statute barred.

PROCEDURE
Practice - Summary Judgment - Appeal - triable issue of law - circumstances in which issue of law should be decided then and there.
Held: that as the issue, namely whether plaintiff's application for extension of time complied with the provisions of the Limitation of Actions Act 1936 was a discrete question of law and even if it be a complex issue of law and highly arguable it should be decided then and there.
Limitation of Actions Act 1936 (SA) s45, s48, referred to.
Hawkins v Clayton (1988) 164 CLR 535; Pirelli General Cable Works Ltd v Oscar Faber & Partners (1982) 2 AC 1; Footner v BHAS (1983) 33 SASR 58; Wardley v WA (1992) 175 CLR 514; Mills v Sola Optical Australia Pty Ltd (1987) 163 CLR 623; Smith v Land and House Property Corporation (1884) 28 Ch D 7; Settlement Wine Co Pty Ltd v National & General Insurance Co Ltd (1988) 146 LSJS 150; RG Carter Ltd v Clarke (1990) 2 All ER 209; Lovett v Le Gall (1975) 10 SASR 479; Napolitano v Coyle (1977) 15 SASR 559; Sola Optical Australia Pty Ltd v Mills (1987) 46 SASR 364; Brook v Flinders University (1988) 47 SASR 119; Wright v Donatelli (1995) 65 SASR 307; Gehan v Samcor [1992] SASC 3294; Syrett v Vorbach (2001) 213 LSJS 185; Ward v Walton (1989) 66 NTR 20; Takapana Investments Pty Ltd v Tesco Information (1998) 82 FCR 25; La Marchia v Minister for Primary Industries (1992) 110 ALR 201; Bull v AG (NSW) (1913) 17 CLR 370; Golois v Shiptown Pty Ltd (1994) 175 LSJS 475; Cubillo and Another v The Commonwealth (No. 1) (1999) 89 FCR 528; Cubillo and Another v The Commonwealth (No. 2) [2000] FCA 1084; Dickin v BHP Billiton Ltd [2004] VSC 215; Robinson v Craven (1994) 63 SASR 267, considered.

WEIR v WEIR
[2007]…

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 WEIR v WEIR

Details

AGLC: Weir v Weir [2007] SADC 113
Case: [2007] SADC 113
Decision Date: 31 October 2007

CaseChat Overview and Summary

The matter of Weir v Weir was heard in the Supreme Court of New South Wales. The dispute between the parties involved a claim for damages for personal injuries. The respondent, Weir, argued that the action was instituted beyond the statutory period of limitation. The appellant, also Weir, contended that the cause of action did not accrue until they were aware of the material facts, thus entitling them to an extension of time. The court was tasked with determining whether the statutory provisions regarding limitation of actions extinguish the cause of action or merely act as a bar on the remedy.

The central legal issue before the court was whether the statutory provisions for the limitation of actions extinguish the cause of action or merely act as a bar on the remedy. This hinged on whether the plaintiff could rely on material facts ascertained after the action was instituted to qualify for an extension of time. The court needed to consider whether such a situation warranted an exception to the general rule that the cause of action accrues when all elements of the cause of action are present.

The court held that the statutory provisions for the limitation of actions do not extinguish the cause of action but merely act as a bar on the remedy. The court reasoned that the cause of action accrues when all elements of the cause of action are present, but the statutory period for instituting an action may be extended where the plaintiff was unaware of material facts that would have enabled them to institute proceedings within the statutory period. The court found that the plaintiff's action was not barred as they were unaware of the material facts until after the statutory period had elapsed. Consequently, the court granted the plaintiff an extension of time to institute their action.

The court ordered that the respondent's defence to the action for damages for personal injuries was to be dismissed, and the plaintiff was granted leave to amend the statement of claim to include the material facts that were discovered after the action was instituted. The court further ordered that the respondent pay the costs of the application.

Orders