TOPPIN v COLES MEYER LTD & McVEAN [2007] NSWDC 256

Reported Decision : 6 DCLR (NSW) 41

New South Wales District Court

CITATION: TOPPIN v COLES MEYER LTD & McVEAN [2007] NSWDC 256

HEARING DATE(S): 6/11/07 EX TEMPORE JUDGMENT DATE : 6 November 2007

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

DECISION: 1. I grant leave to the plaintiff to join Mr Gary McVean as a defendant in the proceedings by the filing of an amended statement of claim in the form attached to Mr Day's affidavit of 30 October 2007 ; 2. The amended statement of claim is to be filed and served by not later than 4pm on 13 November 2007; 3. The respondent is to pay the plaintiff's costs of the motion.

CATCHWORDS: Whether proceedings statute barred - Date of discoverability

LEGISLATION CITED: Limitation Act 1969

Robert John TOPPIN PARTIES: COLES MYER LTD Gary McVEAN

FILE NUMBER(S): Wagga Wagga 11/07

Plaintiff - I D Roberts SC - R J M Foord COUNSEL: Defendant - B S Kelly

Plaintiff - Denniston & Day SOLICITORS: Defendant - McCulloch & Buggy

JUDGMENT

1 The plaintiff seeks leave to join Gary McVean as a defendant in the proceedings. The plaintiff does not pursue the orders sought in paragraph 1(a) of the amended notice of motion filed on 30 October 2007.

2 The proposed second defendant opposes the application arguing that the proceedings are statute barred by reason of the provisions of Division 6 of the Limitation Act 1969. Those provisions require the commencement of proceedings within three years of the date upon which the cause of action which is the basis for the claim is discoverable. In this case the incident involved a slip and fall in the Coles Supermarket in Russell Street, Tumut, on 14 February 2004.