Daniela Bet (aka Daniela Biviano) v UTS Haberfield Club Limited [2008] NSWDC 158

Reported Decision : 7 DCLR (NSW) 173

New South Wales District Court

CITATION: Daniela Bet (aka Daniela Biviano) v UTS Haberfield Club Limited [2008] NSWDC 158

HEARING DATE(S): 13 June 2008

JUDGMENT DATE: 18 June 2008

JURISDICTION: Civil

JUDGMENT OF: Elkaim SC DCJ

1. The plaintiff's Notice of Motion filed on 15 May 2008 is dismissed. DECISION: 2. The plaintiff's action is dismissed by reason of it not being maintainable under section 50C(1). 3. The plaintiff is to pay the defendant's costs of both Notices of Motion and of the proceedings generally.

CATCHWORDS: Limitation - date of discoverability

LEGISLATION CITED: Limitation Act 1969

CASES CITED: Antonini v SRA (No. 2) [2006] NSWDC 133 Country Waste Systems Pty Ltd v Wright [2007] NSWDC 287

PARTIES: Daniela Bet (Plaintiff) UTS Haberfield Club Limited (Defendant)

FILE NUMBER(S): 501/08

COUNSEL: Mr C Stewart (Plaintiff) Mr S Kettle (Defendant)

SOLICITORS: Margiotta Lawyers (Plaintiff) Thompson Cooper Lawyers (Defendant)

JUDGMENT 1. HIS HONOUR: There are two motions before the court. The plaintiff seeks an extension of the limitation period, the defendant asks for the action to be struck out because it has been filed outside of the limitation period. The parties agree that the same issues arise in each motion. 2. The plaintiff relies on her oral evidence together with her affidavit and the affidavit of her solicitor. The defendant relies on an affidavit of Mr Thompson, its solicitor. 3. The background is as follows. On 21 February 2004 the plaintiff attended the defendant's premises, a club, to celebrate the 21st birthday of a work mate. In the course of the evening, while on the dance floor, the plaintiff slipped and broke her arm. She was initially taken to Balmain Hospital and then transferred to Royal Prince Alfred Hospital where she underwent surgery and remained for seven days. 4. Her statement of claim alleges that her injuries were caused by the defendant's negligence. 5. It is common ground between the parties that the applicable limitation period is that set out in Section 50C(1)(a) of the Limitation Act 1969, namely: "..the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff." 6. There is no provision for the extension of this period. The issue before the court is when was the action "discoverable". The extension order sought by the plaintiff in her Notice of Motion is thus not available; however no point was taken as to the wording and it was clear that the parties proceeded on the above issue. I note here that the reliance by the plaintiff on Section 62F of the Act was appropriately abandoned. 7. The Statement of Claim was filed on 18 February 2008. This is just under 4 years since the plaintiff was injured. In February this year Mr Margiotta telephoned the plaintiff and told her that proceedings needed to be filed because there were applicable time limits. It is quite clear that Mr Margiotta was proceeding on the basis that he had 3 years from the date of injury to commence proceedings. 8. Unfortunately at some time after he received instructions (in May 2005) a fundamental error occurred in his office, namely when the date of the accident was inserted on the cover of the plaintiff's file it was out by one year (21 February 2005 instead of 21 February 2004). A copy of the file cover is Annexure 'A' to Mr Margiotta's affidavit. When Mr Margiotta performed his periodic review of the file he was misled by this error and thus he took no action until 31 January 2008 thinking the proceedings were still in time. I do not think Mr Margiotta's assumption of a 3 year limitation period from the date of injury is of significance (his affidavit at paragraph 9). I rather had the impression he thought this was (as it had been before the 2002 amendments) the limitation period and he had not considered the question of discoverability. It has only been after revelation of the error that, I infer, this question has been examined. 9. If the plaintiff is to succeed, both parties agree, the date the action was "discoverable" must be on or after 18 February 2005. This would then allow for the commencement of proceedings on 18 February 2008. 10. The date a cause of action is "discoverable" is dictated by Section 50D. This is in the following terms: 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is "discoverable" by a person on the first date that the person knows or ought to know of each of the following facts: