Weis Restaurant Toowoomba v. Gillogly - [2013] QCA 21

SUPREME COURT OF QUEENSLAND

CITATION:

Weis Restaurant Toowoomba v Gillogly [2013] QCA 21

PARTIES:

WEIS RESTAURANT TOOWOOMBA
(applicant)
v
ALLAN EDWARD GILLOGLY
(respondent)

FILE NO/S:

Appeal No 6461 of 2012
DC No 3 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

15 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

31 October 2012

JUDGES:

Margaret McMurdo P and Fraser JA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   That the Appellant have leave to appeal.

2.   That the appeal be allowed.

3.   That the order made in the District Court on 22 June 2012 be set aside, and that in lieu thereof it be ordered that the originating application filed 13 January 2012 be dismissed with costs.

4.   That the Respondent pay the Appellant’s costs of the appeal.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – WHAT ARE MATERIAL FACTS – where the respondent suffered personal injury at Weis Restaurant after his chair collapsed under him, thus leading him to fall to the floor – where limitation period for personal injuries action extended pursuant to order under s 31 Limitation of Actions Act 1974 (Qld) – where the respondent had resolved to pursue his claim against Weis Restaurant for personal injuries – where appellant contended that identity of defendant was not material fact of decisive character – where the proceeding the respondent had decided to pursue could have simply been instituted against the ‘Weis Restaurant’ business name, regardless of whether it was a registered business or unregistered business name – whether primary judge erred in finding that identity of the true legal entity was a material fact of decisive character – whether primary judge erred in making the order for an extension of time

Limitation of Actions Act 1974 (Qld)

NF v State of Queensland[2005] QCA 110, considered
Randel v Brisbane City Council [1984] 2 Qd R 276, considered
Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431; [1993] QCA 114, considered

COUNSEL:

M S Trim for the applicant
D Rangiah SC, with S Cleary, for the respondent

SOLICITORS:

Sparke Helmore for the applicant
Shine Lawyers for the respondent

MARGARET McMURDO P: I agree with Daubney J’s reasons and orders.

FRASER JA: I agree with the reasons for judgment of Daubney J and the orders proposed by his Honour.

DAUBNEY J: This is an appeal against an order made pursuant to s 31 of the Limitation of Actions Act 1974 (“LAA”) by which the limitation period for a personal injuries action by the Respondent against the Appellant was extended.

Background

The incident in which the Respondent claims to have been injured occurred in Weis Restaurant, Toowoomba, on 14 January 2009. In his affidavit in support of…

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: [2013] QCA 21
Decision Date: 15 February 2013

CaseChat Overview and Summary

Weis Restaurant Toowoomba Pty Ltd (the appellant) appealed against a decision of the District Court of Queensland, which extended the limitation period for the respondent to bring a personal injury claim against the appellant. The respondent, Mr Gillogly, had suffered injuries at the appellant's restaurant when his chair collapsed, leading to him falling to the floor. The dispute centred on whether the primary judge correctly identified the material facts that would have enabled the respondent to institute proceedings against the appellant within the statutory limitation period. The appellant argued that the identity of the true legal entity was not a material fact of decisive character, while the respondent contended that it was.

The primary issue before the court was whether the primary judge erred in finding that the identity of the true legal entity was a material fact of decisive character. The court had to determine whether this finding was correct and whether the primary judge erred in making the order for an extension of time. This involved interpreting the statutory provisions under the Limitation of Actions Act 1974 (Qld) and considering the relevant case law. The court also needed to assess whether the respondent had knowledge of all material facts of decisive character by a particular date, as required by s 31(1)(b) of the Act.

The court found that the primary judge erred in his determination that the identity of the true legal entity was a material fact of decisive character. The court held that the respondent had resolved to pursue his claim against Weis Restaurant, and the identity of the legal entity did not affect the respondent's decision to bring the claim. The court further held that the respondent had knowledge of all material facts of decisive character by a date before the expiration of the limitation period. Consequently, the appeal was allowed, and the order made by the primary judge was set aside. The originating application filed by the respondent on 13 January 2012 was dismissed with costs, and the respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

1. That the Appellant have leave to appeal.

2. That the appeal be allowed.

3. That the order made in the District Court on 22 June 2012 be set aside, and that in lieu thereof it be ordered that the originating application filed 13 January 2012 be dismissed with costs.

4. That the Respondent pay the Appellant’s costs of the appeal.

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:	Weis Restaurant Toowoomba v Gillogly [2013] QCA 21
PARTIES:	WEIS RESTAURANT TOOWOOMBA (applicant) v ALLAN EDWARD GILLOGLY (respondent)
FILE NO/S:	Appeal No 6461 of 2012 DC No 3 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	15 February 2013
DELIVERED AT:	Brisbane
HEARING DATE:	31 October 2012
JUDGES:	Margaret McMurdo P and Fraser JA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. That the Appellant have leave to appeal. 2. That the appeal be allowed. 3. That the order made in the District Court on 22 June 2012 be set aside, and that in lieu thereof it be ordered that the originating application filed 13 January 2012 be dismissed with costs. 4. That the Respondent pay the Appellant’s costs of the appeal.
CATCHWORDS:	LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – WHAT ARE MATERIAL FACTS – where the respondent suffered personal injury at Weis Restaurant after his chair collapsed under him, thus leading him to fall to the floor – where limitation period for personal injuries action extended pursuant to order under s 31 Limitation of Actions Act 1974 (Qld) – where the respondent had resolved to pursue his claim against Weis Restaurant for personal injuries – where appellant contended that identity of defendant was not material fact of decisive character – where the proceeding the respondent had decided to pursue could have simply been instituted against the ‘Weis Restaurant’ business name, regardless of whether it was a registered business or unregistered business name – whether primary judge erred in finding that identity of the true legal entity was a material fact of decisive character – whether primary judge erred in making the order for an extension of time Limitation of Actions Act 1974 (Qld) NF v State of Queensland[2005] QCA 110, considered Randel v Brisbane City Council [1984] 2 Qd R 276, considered Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431; [1993] QCA 114, considered
COUNSEL:	M S Trim for the applicant D Rangiah SC, with S Cleary, for the respondent
SOLICITORS:	Sparke Helmore for the applicant Shine Lawyers for the respondent