Is a NOC a material fact of decisive nature?

Honour v Faminco Mining Services Pty Ltd as Trustee for the Faminco Trust (In Liquidation) & Anor [2009] QCA 352

 

The principal dispute in respect of the expired limitation period was when the plaintiff’s knowledge as to the material fact became decisive and within the plaintiff’s knowledge. The appellant’s agitated in large part and his Honour Chesterman JA agreed that it was no later than the time when the Notices of Claims were delivered on 1 November 2007.

 

His Honour relied upon the following in particular:

 

 

[36] The remarks of Keane JA (with whom Holmes JA and Wilson J agreed) in Castillon v P & O Ports Ltd [2007] QCA 364 are apposite: “[38] … they demonstrate a ‘steady preponderance of opinion or belief’ on the part of the plaintiff and his advisers that the information in their possession concerning the extent of the plaintiff’s loss was sufficient to warrant the commencement of proceedings. They are circumstances which, at least, call for a clear explanation as to why the ‘conjunction of circumstances’, and the plaintiff’s awareness of them, was not such as to justify and require the bringing of an action in the plaintiff’s own interest.”

And

 

 

[45] In NF v State of Qld [2005] QCA 110 Keane JA said: “It is to be emphasized that s 30(1)(c) did not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of ‘all reasonable steps’, or by the efforts of a reasonable person. It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps. The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, is the particular person who has suffered particular personal injuries. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant. It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge”.

The rationale in part being the particular of damages claimed in item 58 on yhr form and offer made in the claims.

 

The material fact in controversy was the plaintiff’s psychiatric condition and its impact on his earning capacity (he should not work underground), but for which, the learned primary judge found the claim for damages would not be sustainable as it was unlikely to exceed $50,000.00.

 

The plaintiff relied on the opinion of Dr James in March 2008 as being the material fact. It was accepted that the opinion of Dr James “is, or is capable of being, a material fact of a decisive character”. The opinion was received some time after the Notices of Claims were delivered.

 

Their Honours Fraser JA and Lyons J found for the plaintiff/respondent, with his Honour Lyons J providing the reasons.

 

His Honour Lyons J’s rationale for the material fact not being of a decisive nature unless it is productive of a sustainable action in damages is found at:

 

 

[74] It follows that the material fact is not of a decisive character if, before knowing that fact a reasonable person would know facts that that person would regard (having taken appropriate advice) as showing that an action would (ignoring the effect of limitation period) have a reasonable prospect of success, and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and that the potential claimant ought, in that person’s own interests and taking that person’s circumstances into account, bring an action on the right of action. However, if, without knowledge of that fact, a reasonable person, having taken appropriate advice, would not regard the facts known to that person as showing that an action would (ignoring the effect of the limitation period) have a reasonable prospect of success, and of resulting in an award of damages sufficient to justify the bringing of an action, then the fact is of a decisive character. Further, if, without knowledge of the material fact, a reasonable person, having taken appropriate advice, would not regard the facts known to that person as showing that the potential claimant ought in that person’s own interest and taking that person’s own circumstances into account, bring an action, then the material fact is not of a decisive character.

And

 

[84] In that context, the learned primary judge made reference to evidence in another case that a partner in a firm of solicitors routinely advised clients working in the mining industry that personal injuries claims under $60,000 may not be worth pursuing; and to the observations of Muir J (as his Honour then was), that there was no reason to believe that this advice would not have been similar to that which would have been given by other solicitors exercising due care and skill, having regard to the limited potential return, litigation-induced stressors, the cost of the proceedings, and the possibility of failure…

His Honour distinguished Castillon v P & O Ports Ltd (No 2) and the answer provided in item 58 on the basis that Castillon had been unable to work for most of the time since accident.

 

His Honour also rejected the argument that this knowledge was within the plaintiff’s means of knowledge and that he had failed to take all reasonable steps to ascertain it.

 

Brisbane Barrister – David Cormack

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