Limitations: identity & reasonable steps – material fact?

Weis Restaurant Toowoomba v Gillogly [2013] QCA 21

The Respondent claimed he injured himself on 14/01/2009 when his chair collapsed at the Appellant’s restaurant, but was out of time to pursue his claim. The primary judge granted an extension under the Limitations of Actions Act 1974 (LAA) on the basis inter alia; the material fact of decisive character was the correct identity of the Appellant and was unknown.

The appeal included:

(a)           The Respondent did not establish that he had a right of action – there was no evidence which justified the finding that the Respondent had a claim to pursue, nor the finding that “Weis Restaurant Toowoomba Pty Ltd” was the “company operating a restaurant” and the proper defendant to any action;

(b)          The Respondent did not take reasonable steps to discover the identity of the operator of the restaurant – he could have discovered that fact, but took no real steps to advance his claim from mid-2009 to early 2012;

(c)           The identity of Weis Restaurant Toowoomba Pty Ltd was not a material fact of a decisive character. Learning the identity of the company would not lead a reasonable person to pursue the claim and the Respondent admitted that he intended to pursue the claim from July 2009 onwards, when it became apparent he had a serious knee injury;

(d)          The evidence suggested that the Appellant would be prejudiced by extending the period because a witness is no longer in the Appellant’s employ.


Daubney J with whom The President and Fraser JA concurred in allowing the appeal:

[27] Importantly for present purposes, however, the Respondent expressly agreed in evidence that by the middle of 2009, when he first consulted with Mr Booby, the Respondent “had decided to pursue a claim against Weis’s Restaurant” for his injury.1 He again confirmed this later in his cross-examination. It was then suggested to him that learning about the fact that Weis Restaurant Toowoomba Pty Ltd ran Weis Restaurant was not important to him, to which the Respondent that he had only ever known it as “Weis Restaurant” and not as “proprietary limited”, and

then again agreed with the proposition that in 2009 he was determined to pursue the claim against Weis Restaurant.

[29] His Honour then found (at para 46) that he was satisfied on the material before him that the Respondent did not know “that the company Weis Restaurant Toowoomba Pty Ltd was the legal identity which it would be necessary to name as a defendant if he were to bring an action until 5th April 2012”.

[31]      Importantly for the purposes of this appeal, the learned primary judge held: “54.             In my view the actual identity of the company operating the

restaurant was, within the meaning of the section, a material fact of a decisive character. It was critically important to know against whom an action might succeed.”


Material fact of a decisive character


[36] It is convenient to deal first with the question whether the learned primary judge erred in holding, in effect, that knowledge by the Respondent that “Weis Restaurant Toowoomba Pty  Ltd”  was  the  legal  entity  which  operated  the  restaurant  was a material fact of a decisive character, in the circumstances of this case.

[40]      In Randel v Brisbane City Council,3 McPherson J (as he then was) explained:4 “In determining whether time should under s.  31(2) be extended there are three matters to be considered under subsecs. (a), (b) and

(c)    of s. 30. Essentially these are: (a) whether the unknown fact relating to the right of action is a „material‟ fact within the meaning of that subsection; (b) whether the material facts relating to a right of action are „of a decisive character‟‟ and (d) whether the fact in question was not within the means of knowledge of the plaintiff. Of these, the standard to be applied in determining the second of these matters, involving as it does the behaviour of a reasonable man, is not related to the mentality, personal idiosyncracies, or behaviour of the particular plaintiff in question. The assessment required by this provision is entirely objective. On the other hand, the background and situation of the plaintiff are relevant to the determination whether he has under s. 30(d)(ii) taken „all reasonable steps‟ to ascertain a fact: see Castlemaine Perkins Limited v. McPhee [1979] Qd.R. 469, 473. The questions to be asked and answered under each of subsections (b) and (d) are however quite distinct and independent. With great respect to what was said to by Wanstall C.J. in Re Sihvola [1979] Qd.R. 458, 466E, it is not legitimate to import into the inquiry under s. 30(d) the reference to be found in s. 30(b) to the phrase „the reasonable man‟.”


[41] It is clear enough that the discretion under s 31(2) only arises if an applicant satisfies the Court that a “material fact of a decisive character” was not within his or means of knowledge. It is also clear enough that not every material fact is one “of a decisive character”. An applicant may be ignorant of a material fact (as, for example in this case, the precise legal identity of the person against whom a right of action lies) but “it will not be a material fact of a decisive character if the reasonable man, having taken appropriate advice on the facts of which the [applicant] did have knowledge,  would  regard  those  facts  as  showing  that  an  action  would  have

a reasonable prospect of success and ought to be taken”.5


[42] As I have already noted, the only fact in this case which the Respondent sought to characterise as being of the necessarily decisive character was the legal identity of the owner of the restaurant. In my view, however, the central finding below that the actual  identity of  the  company operating the  restaurant  was  a  material  fact  of


a decisive character because it was “critically important to know against whom an action might succeed” cannot be sustained. On his own evidence, the Respondent had, by mid-2009, resolved to pursue his claim against Weis Restaurant for the personal injuries he had suffered as a consequence of the incident on 14 January 2009. By subsection 30(1)(b)(i), a material fact relating to a right of action is of a decisive character only if, relevantly, a reasonable person who knew that fact and had taken appropriate advice on that fact would regard that fact as showing that an action on the right of action would have a reasonable prospect of success and result in an award of damages sufficient to justify the bringing of the action. On the facts of this case, there was simply nothing about the precise legal entity which owned this restaurant which went to that necessary question. It is clear that the Respondent not only knew of all of the facts which showed (from his perspective) that he had an action with reasonable prospects of success, he had in fact decided to pursue that action. It was not necessary for him to know the precise legal identity of the owner of the restaurant in order to pursue the action. On his own evidence, he knew its business name, i.e. “Weis Restaurant”. The proceeding he had decided to pursue could have simply been instituted against that business name, regardless of whether

it was a registered or unregistered business name.6


[43] Accordingly, I consider that, on the facts of this case, the identity of  “Weis Restaurant Toowoomba Pty Ltd” as the actual identity of the company operating the restaurant was not a material fact of a decisive character for the purposes of s 31(2) of the LAA. That being the only such fact sought to be relied on by the Respondent as justifying an exercise of the discretion to extend time in his favour, it follows that I find both that the learned primary judge erred in making the order for an extension of time and that this is not a case in which, on the evidence, the discretion to extend the limitation period is enlivened. On that basis, the appeal should be allowed.


[44] The remaining matters argued on appeal can be dealt with in  relatively  short compass.



3           [1984] 2 Qd R 276.

4           At 277-278.

5                  Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, per Wilson J at 248; see also Deane J at 251.




5                  Uniform Civil Procedure Rules, rr 89 and 90.


Brisbane Barrister – David Cormack

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