Mullens v Sydney West Area Health Service [2011] NSWSC 346

Supreme Court New South Wales

Medium Neutral Citation: Mullens v Sydney West Area Health Service [2011] NSWSC 346 Hearing dates: 2 March 2011 Decision date: 29 April 2011 Jurisdiction: Common Law Before: Hislop J Decision: 1. The notice of motion filed on 23 July 2010 is dismissed. 2. The defendant is to pay the costs of the notice of motion. Catchwords: Common law - personal injury - application by defendant to strike out or dismiss proceedings - Limitation Act 1969, s50C, 50D(1)(b)(c) Legislation Cited: Limitation Act 1969 Cases Cited: Baker-Morrison v State of New South Wales [2009] NSWCA 35; (2009) 74 NSWLR 454 Vukancic v Velcic [2007] NSWSC 1001 Griffiths v Evans [1953] 2 All ER 1364 Category: Interlocutory applications Parties: Leigh Anne Mullens (Plaintiff) Sydney West Area Health Service (Defendant) Representation: Counsel: D.E. Baran (Plaintiff) M. Fordham (Defendant) Solicitors: NSW Compensation Lawyers (Plaintiff) Gild Insurance Litigation Pty Ltd (Defendant) File Number(s): 2010/46648

Judgment

Introduction 1The plaintiff is a nurse. She was born in 1972. She was employed by Drake Australia Pty Limited. Her services were hired to the defendant. On 30 July 2004 she suffered injury to her back whilst repositioning a patient in bed. On 22 February 2010 a statement of claim was filed on her behalf claiming damages from the defendant for that injury. 2The defendant in its defence pleaded: "9. In the alternative, the Defendant says that the Plaintiff's cause of action having been brought more than 3 years after the action was discoverable and is not maintainable by reason of the provisions of Section 50C and 50D of the Limitation Act 1969." 3On 23 July 2010 the defendant filed a notice of motion seeking orders: "1. That the whole of the proceedings be dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005 on the basis that the cause of action having been brought more than three years after the action was discoverable is not maintainable by reason of the provisions of Section 50C and 50D of the Limitation Act 1969. 2. In the alternative, that the whole of the proceedings be struck out pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005 on the basis that the cause of action having been brought more than three years after the action was discoverable is not maintainable by reason of the provisions of Section 50C and 50D of the Limitation Act 1969. 3. [Not pursued] 4. [Not pursued] 5. In the alternative, pursuant to Regulation 28.2 of the Uniform Civil Procedure Rules 2005 that there be a separate hearing on the limitation issues pleaded prior to the substantive hearing." The application was opposed.