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4 Instituting proceedings

Renowden v mcmullin 1970 123 clr 584 indorsement

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Renowden v McMullin (1970) 123 CLR 584 Indorsement claimed breach of contract but not in statement of claim. Plaintiff sought leave out of time to amend statement of claim to include claim for breach of contract HELD: causes of action relied upon to be ascertained from statement of claim only proposed amendments statute-barred and not allowed
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INDORSEMENT Ruzeu v Massey-Ferguson [1983] 1 VR 733 Whether an indorsement complies with the Rules is examined by reference to indorsement rather than admitting evidence on the issue ‘Cause’ means the legal category rather than the physical acts which caused the injury and damage.
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RUZEU v MASSEY-FERGUSON RUZEU v MASSEY-FERGUSON [1983] 1 VR 733 [1983] 1 VR 733 The plaintiffs claim is for damages for injuries he received to his back in an accident which occurred on or about 2 December 1975 whilst he was in the course of his employment with the defendant. The accident occurred as a result of the negligence of the defendant, its servants and agents and the plaintiff claims damages.”
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RUZEU v MASSEY – FERGUSON RUZEU v MASSEY – FERGUSON cont. cont. ‘... what the indorsement must contain is sufficient notice of (a) the nature of the claim, (b) the cause of action relied upon and (c) the relief or remedy required. In an action based on negligence particulars (a) and (b) will often be run together. In the present case the particulars are: (c) damages for (a) personal injuries caused by (b) the negligence of the defendant, Thus the indorsement clearly covered all the requirements of the rule.’
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Once Proceedings Once Proceedings Commenced… Commenced… Writ must be served within 12 months. If not served it becomes stale. Can apply to court to renew a stale writ. Plaintiffs seek to renew a writ, rather than just file a new one, if the limitation period has expired in the interim. Court has wide discretion whether or not to renew writ. Look at factors such as why service has not been effected .
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Limitations of action Must commence proceedings within limitation period Expiry of a limitation period = a procedural defence
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Limitations of Action ‘Stale claims’ cause evidentiary difficulties and injustice to defendants. To overcome this there are limitation periods within which an action must be commenced. Failure to commence proceedings within limitation period bars the action, unless an extension is granted.
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Policy behind Limitation Periods: Avoid Injustice: Unfair to defendants to have potential lawsuit hanging over their head for extended period; and Justice difficult to attain when witnesses memories have faded and documents no longer available. Efficiency: Public interest in having claims resolved as expeditiously as possible.
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Brisbane South Regional Health Authority v Taylor [1996] HCA 25 per McHugh J Courts & commentators have perceived four broad rationales for the enactment of limitation periods. First , as time goes by, relevant evidence is likely to be lost. Second , it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed.
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