McGarva v Boyd & 2 Ors [1999] NSWSC 1149

New South Wales Supreme Court CITATION : McGarva v Boyd & 2 Ors [1999] NSWSC 1149 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20123/97 HEARING DATE(S) : 22 November 1999 JUDGMENT DATE : 29 November 1999

Amanda Mae McGarva (Plaintiff)

Mark Charles Boyd (First Defendant) PARTIES : Ian Drinkwater (Second Defendant)

Marine Ministerial Holding Corporation (Third Defendant) JUDGMENT OF : Master Harrison

Mr D Conti (Plaintiff) COUNSEL : Mr R Sheldon (Third Defendant) White Barnes (Plaintiff) SOLICITORS : Cutler Hughes & Harris (Third Defendant) CATCHWORDS : Extension of limitation perid - third defendant; Section 60C and s 60E ACTS CITED : Limitation Act 1969 (NSW) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR; 139 ALR 1 CASES CITED : Council of the City of Sydney v Zegarac (NSWCA, unreported 26 February 1998) Morton v Jools (1992) Aust Tort Reports 81-164 McAndrew v Wyoming Nursing Home (NSWCA, unreported 5 December 1997) DECISION : See para 22

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 29 NOVEMBER 1999

20123/97 - AMANDA MAE McGARVA v MARK CHARLES BOYD & 2 ORS

JUDGMENT (Extension of limitation period against) third defendant - s 60C and s 60E) 1 MASTER: By notice of motion filed 5 August 1999 the plaintiff seeks firstly, an order that the time for commencement of proceedings by the plaintiff against the Marine Ministerial Holding Corporation be extended; and secondly, that the plaintiff be given leave to amend her statement of claim so as to join the Marine Ministerial Holding Corporation as third defendant. The plaintiff relied on her affidavit sworn 27 July 1999 and four affidavits of her solicitor, Stephen O'Halloran sworn 9 August, 1999, two of 3 September 1999 and one of 15 November 1999. The defendant relied on the affidavit of Sharon Finch sworn 20 September 1999. Both of the plaintiff's deponents were cross examined. 2 The alleged facts are as follows. On the 14 January 1995 the plaintiff sustained personal injuries while travelling as a passenger in a motor vessel that collided with a moored motor vessel named "Mayhem". The first named defendant Mark Charles Boyd was the owner and driver of the motor vessel in which the plaintiff was travelling and the second named defendant Ian Drinkwater was the owner of the moored motor vessel. The proposed third defendant is the Marine Ministerial Holding Corporation. The Waterways Authority has undergone complicated legislative change stemming from around the time the plaintiff has her accident. For the purposes of this application only, it is not disputed that the third defendant is correctly named. 3 It is alleged that the Marine Ministerial Holding Corporation is the successor to the liabilities to the Maritime Services Board and its subsidiary authorities. In paragraph 8 of the proposed amended statement of claim it is alleged that as at 14 January 1995 the MSB Waterways Authority had the care, control and management of the subject waterways. Paragraph 9 asserts that the Marine Ministerial Holding Corporation became the successor to the liabilities of the former Maritime Services Board and the MSB Waterways Authority. Paragraph 10 sets out the particulars of negligence alleged against the Marine Ministerial Holding Corporation including allegations that it failed to ensure that the vessel "Mayhem" was properly moored in an area where it did not pose a significant risk to other vessels using the waterway in conditions of darkness. It is also alleged that the corporation failed to ensure that the subject vessel was properly lit or illuminated so that it could be identified in conditions of darkness. 4 For the purposes of this application I find the following facts. In so doing, I carefully observed the plaintiff both giving evidence and being cross examined and I formed the view that she was a truthful witness.