Martinus v Kidd [1982] HCA 64

Martinus v Kidd [1982] HCA 64

The High Court majority held that s. 23A of the Limitation of Actions Act 1958 Vict. did not assist the appellant under s. 29(3)(b), because if Mr. Kidd had lived there was no basis for extending the three-year period: the appellant knew the material facts, including his identity as the person against whom the cause of action lay. However, s. 23A was wide enough to apply of its own force to the six-month period in s. 29(3)(c) of the Administration and Probate Act 1958 Vict.; s. 33 did not exclude that operation, and the conditions for extension were satisfied because the identity of the personal representative was a material fact not known until later than two years after accrual. The...

Jurisdiction
Australia
Procedural Posture
High Court Appeal / Appeal From the Full Court of the Supreme Court of Victoria Affirming King J.'s Refusal of an Application Under S. 23 a of the Limitation of Actions Act 1958 Vict. to Extend Time to Commence Proceedings Against a Personal Representative
Outcome
Appeal allowed with costs; judgment of the Full Court of the Supreme Court of Victoria set aside; time extended under s. 23A so that it expires two months after 11 November 1982.
Legal Topics
['extension of Limitation Period' 'survival of Causes of Action Against Deceased Estates' 'proceedings Against Personal Representatives' 'construction of S. 23 a of the Limitation of Actions Act 1958 Vict. and S. 29(3) of the Administration and Probate Act 1958 Vict.']
['limitation of Actions' 'probate and Administration' 'tort' 'personal Injury Negligence'] ['extension of Limitation Period' 'survival of Causes of Action Against Deceased Estates' 'proceedings Against Personal Representatives' 'construction of S. 23 a of the Limitation of Actions Act 1958 Vict. and S. 29(3) of the Administration and Probate Act 1958 Vict.']

Case Brief

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Procedural Posture

High Court Appeal / Appeal From the Full Court of the Supreme Court of Victoria Affirming King J.'s Refusal of an Application Under S. 23 a of the Limitation of Actions Act 1958 Vict. to Extend Time to Commence Proceedings Against a Personal Representative

Legal Issues

  1. 1 ["Whether s. 23A of the Limitation of Actions Act 1958 Vict. could extend the period referred to in s. 29(3)(b) of the Administration and Probate Act 1958 Vict. for proceedings against a deceased tortfeasor's personal representative" 'Whether s. 23A of the Limitation of Actions Act 1958 Vict. applied of its own force to extend the six-month period in s. 29(3)(c) of the Administration and Probate Act 1958 Vict.' "Whether the appellant's lack of knowledge of the identity of the administratrix was a material fact for the purposes of s. 23A"]

Ratio Decidendi

The High Court majority held that s. 23A of the Limitation of Actions Act 1958 Vict. did not assist the appellant under s. 29(3)(b), because if Mr. Kidd had lived there was no basis for extending the three-year period: the appellant knew the material facts, including his identity as the person against whom the cause of action lay. However, s. 23A was wide enough to apply of its own force to the six-month period in s. 29(3)(c) of the Administration and Probate Act 1958 Vict.; s. 33 did not exclude that operation, and the conditions for extension were satisfied because the identity of the personal representative was a material fact not known until later than two years after accrual. The...

Court Disposition

Appeal allowed with costs; judgment of the Full Court of the Supreme Court of Victoria set aside; time extended under s. 23A so that it expires two months after 11 November 1982.

Orders

  • ['Appeal allowed with costs.' 'Judgment of the Full Court of the Supreme Court of Victoria set aside.' 'The appeal to the Full Court of the Supreme Court of Victoria be allowed with costs.' 'The judgment of King J. be set aside.' 'Pursuant to s. 23A of the Limitation of Actions Act 1958 Vict., as amended, the period...