Application for summary judgment: Limitation period

Bolas v Calvary Health Care Limited [2016] ACTSC 58 concerned an interlocutory application by the defendant for summary jugdment,  or to have the statement of claim struck out on a limitation expiry argument.

The application was refused with the court noting at [28] – [30]:

Had the limitation defence been properly pleaded, that is, pleaded in a manner which identified the relevant statutory provision and the material facts necessary to make that provision operative, then there is no doubt that the plaintiff would have been required to file a reply which pleaded the material facts which would allow her to avoid the operation of that defence.  If she did not do so then she would not be entitled to prove facts at the hearing which avoided the operation of the limitation provision and if the facts relied upon by the defendant were clearly established the defendant may be entitled to summary judgment.

However, as I have pointed out above, the defence did not properly identify the statutory provision or material facts relied upon and the answer to the request for particulars, which in my view is no substitute for a proper pleading, was hedged about by the objection to provision of particulars and the reservation of the defendant’s entitlement to particularise something else in future.

In those circumstances I would decline, in the exercise of my discretion, to grant summary judgment or strike out the claim because there has been only a joinder of the issue.  In my view to make an order for summary judgment on the basis of the pleadings would be inappropriate because of the deficiencies in the pleadings on both sides of the record.  Further, having regard to the evidence available to the plaintiff, I am satisfied that the plaintiff by filing a reply may plead facts which give her an arguable reply to the limitation defence.  While clearly the pleadings of both sides would be able to be amended so as to remove their defects, the filing of a reply will put the pleadings in a state which, although very clearly not perfect, would be in a form which would permit a trial to proceed.

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