Murgolo v AAI Ltd t/as AAMI [2019] NSWSC 406

Supreme Court New South Wales

Medium Neutral Citation: Murgolo v AAI Ltd t/as AAMI [2019] NSWSC 406 Hearing dates: 15 February 2019 Decision date: 18 April 2019 Jurisdiction: Common Law Before: N Adams J Decision: (1) The proceedings against the first defendant are dismissed summarily under Uniform Civil Procedure Rules 2005 (NSW) r 13.4. (2) The plaintiff is to the pay the first defendant's costs of the first defendant's motion. (3) The parties have leave to approach the court within 14 days should a different costs order be sought by either of them. (4) Leave is granted for the second defendant to withdraw its notice of motion. (5) Both the plaintiff and the second defendant are to pay their own costs thrown away of the second defendant's motion. (6) The proceedings are listed before the Registrar on 2 May 2019. Catchwords: LIMITATION OF ACTIONS – discoverability – claim for damages for workplace injury – orders for summary dismissal sought on basis that proceedings are abuse of process and time barred – where plaintiff sued companies A and B within limitations period – where claim against company B discontinued – where default judgment obtained against company A – where company A was not insured and judgment remains unsatisfied – where company B was insured and present proceedings commenced against it out of time – whether cause of action discoverable by plaintiff on first date he knew or ought to have known the fact that injury was caused by the fault of company B – whether plaintiff could "unknow" earlier fact that injury was caused by the fault of company B – Limitation Act 1969 (NSW), s 50D(1)(b) – whether doctrine of res judicata applies to default judgment Legislation Cited: Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Legal Profession Act 2004 (NSW) Limitation Act 1969 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Agar v Hyde (2000) 201 CLR 552 Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 Baggs v The University of Sydney Union [2013] NSWCA 451 Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 Dey v Victorian Railway Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Jackson v Goldsmith (1950) 81 CLR 446; [1950] HCA 22 O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 Petersen v Maloney (1951) 84 CLR 91 Smith v Hunter New England Local Health District [2016] NSWSC 248 State of NSW v Gillett [2012] NSWCA 83 Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 28 Zetta Jet Pte Ltd v The Ship "Dragon Pearl" [2018] FCAFC 132 Wardley v State of Western Australia (1992) 175 CLR 514 Category: Procedural and other rulings Parties: Gaetano Murgolo (Plaintiff) AAI Ltd t/as AAMI (First Defendant) Proline Building – Commercial Pty Ltd (Second Defendant) Representation: Counsel: Mr B D Dooley SC with J C Lee (Plaintiff) Mr M T McCulloch SC with R Perla (First Defendant) Mr R G Gambi (Second Defendant)