Mabbett v Josef & Sons Contracting Pty Ltd [2006] NSWSC 1452

Mabbett v Josef & Sons Contracting Pty Ltd [2006] NSWSC 1452

Leave is granted to the plaintiff to proceed against the first defendant because, on the balance of the evidence—including cogent evidence of ongoing disability, adequacy of contemporaneous documentation, lack of forensic prejudice shown, and minimal prospects for a meaningful cross-claim—the justice of the case supports a dispensation from the limitation period. For the second defendant, the limitation period has not expired as the plaintiff has been continuously under relevant legal disability since before expiry of the original limitation period.

Parties
Plaintiff: Sidney Mabbett by his tutor Noeline Apiata; First Defendant: Josef & Sons Contracting Pty Limited (In Liquidation); Second Defendant: New South Wales Land & Housing Corporation
Jurisdiction
Australia
Judgment Date
06 November 2006
Procedural Posture
Application for Leave to Commence Proceedings for Negligence/personal Injury / Judgment on Application to Proceed Out of Time and Limitation Periods
Outcome
Leave granted to the plaintiff to proceed against the first defendant; limitation period suspended for the second defendant; liberty to apply on costs.
Legal Topics
Negligence, Breach of Statutory Duty, Limitation Periods, Workers Compensation, Disability and Suspension of Limitation Periods
Tort Law Personal Injury Limitation of Actions Negligence Breach of Statutory Duty Limitation Periods Workers Compensation Disability and Suspension of Limitation Periods

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Parties

Sidney Mabbett by his tutor Noeline Apiata

Plaintiff

Josef & Sons Contracting Pty Limited (In Liquidation)

First Defendant

New South Wales Land & Housing Corporation

Second Defendant

Procedural Posture

Application for Leave to Commence Proceedings for Negligence/personal Injury / Judgment on Application to Proceed Out of Time and Limitation Periods

Legal Issues

  1. 1 Whether plaintiff should be granted leave to proceed against the first defendant out of time under s151D of the Workers Compensation Act 1987
  2. 2 Whether the limitation period is suspended in respect of the second defendant under s52 of the Limitation Act 1969 due to the plaintiff’s disability
  3. 3 Whether allowing the plaintiff to proceed would cause actual prejudice to the defendants because of the passage of time and/or inability to bring a cross-claim

Ratio Decidendi

Leave is granted to the plaintiff to proceed against the first defendant because, on the balance of the evidence—including cogent evidence of ongoing disability, adequacy of contemporaneous documentation, lack of forensic prejudice shown, and minimal prospects for a meaningful cross-claim—the justice of the case supports a dispensation from the limitation period. For the second defendant, the limitation period has not expired as the plaintiff has been continuously under relevant legal disability since before expiry of the original limitation period.

Court Disposition

Leave granted to the plaintiff to proceed against the first defendant; limitation period suspended for the second defendant; liberty to apply on costs.

Orders

  • Leave is granted to the plaintiff to proceed on his statement of claim against the first defendant.
  • The limitation period has not expired in respect of the action against the second defendant.