Slaveska v Vic & Ors

(2015) 49 VR 131; [2015] VSCA 140

Victorian Court of Appeal

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Interrogate

Catchwords

1. Limitation of Actions
2. › Personal injury actions
3. › Scope of shortened limitation period
4. › Whether damages claimed 'relate to' personal injury
5. › Effect on claims for nominal, aggravated and exemplary damages
6. › Whether cause of action partially survives where some damages not related to personal injury
7. › Limitation of Actions Act 1958 (Vic), ss 5(1A), 23A, 27B(1), 27D(1)
1. Limitation of Actions
2. › Discoverability
3. › Date cause of action discoverable
4. › Whether reasonable to expect self-represented plaintiff to ascertain identity of defendants by pre-action discovery
5. › Limitation of Actions Act 1958 (Vic), ss 27D(1)(a), 27F(2)
1. Limitation of Actions
2. › Extension of time
3. › Discretion to extend
4. › Whether prejudice to defendants
5. › Whether delay fully explained by self-represented plaintiff
6. › Limitation of Actions Act 1958 (Vic), ss 23A, 27K, 27L
1. Practice and Procedure
2. › Abuse of process
3. › Summary dismissal
4. › Whether claims would cause unjustifiable oppression to defendants
5. › Whether claims would bring administration of justice into disrepute
6. › Where claims raise factual issues substantially identical to issues exhaustively considered in prior proceeding
7. › Where plaintiff intimately involved in prior proceeding as litigation guardian
8. › Relevance of overarching obligations in Civil Procedure Act 2010 (Vic)
9. › Interaction with Anshun estoppel

Quick Take

Where a plaintiff's cause of action gives rise to claims for both personal injury damages (subject to the 3-year limitation under Part IIA of the Limitation of Actions Act 1958 (Vic)) and other damages such as nominal, aggravated or exemplary damages (subject to the 6-year limitation), the expiry of the personal injury limitation period does not extinguish the entire cause of action; the claim survives to the extent it seeks non-personal-injury damages. A claim may be dismissed as an abuse of process even where Anshun estoppel is not established, particularly where the factual issues have been exhaustively litigated in a prior proceeding in which the plaintiff was intimately involved. The question whether a litigation guardian has 'sufficient identification' with the party to the earlier proceeding for Anshun estoppel purposes was left open.