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Wright v Donatelli

Wright v Donatelli

Case [1995] SASC 5291 20 October 1995

Limitation Periods

Material Facts

Statutory Interpretation

Judicial Discretion

Civil Litigation & Procedure

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COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COX(1), PERRY(2) AND LANDER(3) JJ

CWDS
Limitation of actions - contracts, torts and personal actions - Application for extension of time refused by Magistrate - meaning of material fact - plaintiff must learn for the first time of a material fact within the twelve months prior to the institution of proceedings - Court must then determine whether in all the circumstances it is just to grant an extension of time - the material fact need not bear upon the decision to sue - learning of the medical report was the ascertainment of a material fact. Limitation of ActionsAct 1936, referred to. Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR
628; Subramaniam v Public Prosecutor (1956) 1 WLR 965 applied. Gehan v South Australian Meat Corporation unreported, Full Court, 5 March 1992, not followed. Lovett v Le Gall (1975) 10 SASR 479; Napolitano v Cogle (1977) 15 SASR 559; Richardson v Ioannou (1986) 127 LSJS 1: Sola Optical Australia Pty Ltd v Mills (1987) 46 SASR 364; Cakebread v Henriks (1986) 128 LSJS 139; Raison v Alexoudis (1986) 130 LSJS 174. considered.

HRNG ADELAIDE, 12 September 1995 #DATE 20:10:1995 #ADD 27:11:1995

Counsel for appellant: Mr G L Muecke

Solicitors for appellant: Tindall Gash Bentley

Counsel for respondent: Mr S Walsh QC

Solicitors for respondent: Stratford and Co

ORDER
Appeal allowed

JUDGE1 COX J I would allow this appeal. I agree with the reasons of Lander J. I add some remarks of my own on one aspect of the appeal that has caused some difficulty.

2. In Sola Optical (Australia) Pty Ltd v Mills (1987) 163 CLR 628 the High Court compared the terms of s48(3)(b)(i) of the Limitation of Actions Act 1936 ("facts material to the plaintiff's case") with the more complex and stringent provisions of sections 1 and 7 of the Limitation Act 1963 (UK) and adopted the words of Bray CJ in Napolitano v Coyle (1977) 15 SASR 559. In that case the learned Chief Justice gave the notion of material facts a literal, unvarnished meaning that, inter alia, did not require that the ascertainment of those facts by the plaintiff were "even such as to have in his mind weighed down the balance in favour of litigation" (15 SASR at 569). The judgement of the High Court continued -
    "...There is no warrant for writing into the Act a further
    qualification that, to attract the operation of
s.48(3)(b)(i), there must be some interaction between the
    material fact and the plaintiff's decision to sue. It is
    materiality to the plaintiff's case that must be shown.
    This is a broad general requirement that is capable of
    satisfaction by objective inquiry. To introduce notions,
    related to the decision to sue, that would require an
    examination of the subjective workings of the plaintiff's
    mind would complicate the court's task and impede rather
    than advance the purpose of the Act. A fact is material to

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 Wright v Donatelli

Details

AGLC: Wright v Donatelli [1995] SASC 5291
Case: [1995] SASC 5291
Decision Date: 20 October 1995

CaseChat Overview and Summary

The appeal in Wright v Donatelli was heard by the Full Court of the Supreme Court of South Australia, which allowed the appeal and set aside the order of the Special Magistrate refusing the plaintiff an extension of time to bring his action. The Full Court was of the opinion that the Special Magistrate had misconstrued the requirements of Section 48 of the Limitation of Actions Act 1936. The Full Court held that a plaintiff need only demonstrate that they became aware for the first time of a material fact within twelve months of instituting proceedings. The Full Court also held that the material fact need not bear upon the plaintiff's decision to sue. The Full Court found that the three facts which the plaintiff had relied upon were each material facts within the meaning of Section 48(3) of the Act, as explained in Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628.

Orders