District Court
New South Wales
Medium Neutral Citation: Amor-Smith v Ching [2016] NSWDC 89 Hearing dates: 31 March 2016 and 1 April 2016 Date of orders: 27 May 2016 Decision date: 27 May 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Summons filed on 31 August 2015 dismissed.
(2) Plaintiff pay defendant’s costs.
(3) Liberty to restore in relation to costs and to any other post-judgment application.Catchwords: TORT – personal injury – plaintiff injured in motor vehicle accident in 2011 brings proceedings for personal injury outside the time limits of the Motor Accidents Compensation Act 1999 (NSW) – whether the plaintiff has provided a full and satisfactory explanation to the court for the delay – whether the total damages likely to be awarded are not less than 25% of the maximum amount that may be awarded – estoppel per rem judicatam – defendant obtains consent judgment against the plaintiff for the full sum claimed in motor vehicle property damage proceedings in the Local Court – whether the parties’ addition of the words “without admission of liability” to the consent judgment meant that no issue estoppel arose – summons dismissed on all grounds – application by defendant during the hearing for referral of the proceedings to the Director of Public Prosecution – reasons for deferral of this application until the handing down of judgment Legislation Cited: Crimes Act 1900 (NSW), s 338
Criminal Justice and Courts Act 2015 (UK), s 57
Evidence Act 1995 (NSW), s 128
Government Information (Public Access) Act 2009 (NSW)
Law Abuse Reduction Act (LARA) 2015 (HR 758, S 401)
Motor Accidents Compensation Act 1999 (NSW), s 109
Motor Accidents Compensation (Determination of Loss) Amendment Order 2010Cases Cited: Adeeb v Alali [2013] NSWSC 312
Application of Alejandro Arturo Toro-Martinez [2008] NSWSC 34
Ashenden v Stewarts & Lloyds [1972] 2 NSWLR 484
Chamberlain v DCT (1988) 164 CLR 502
Charafeddine v Morgan (2014) 66 MVR 232
Clayton Utz v Dale [2015] VSCA 186
Conference & Exhibition Organisers Pty Ltd v Johnson [2016] NSWCA 118
Dai v Zhu [2013] NSWCA 412
Dijakovic v Perez (2015) 71 MVR 334
Eades v Gunestepe [2012] NSWCA 204
Ekes v Commonwealth Bank of Australia (2014) 313 ALR 665
Glover v Australian Ultra Concrete Floors Pty Ltd [2006] NSWSC 503
Isaacs v Ocean Accident & Guarantee Corp Ltd (1958) SR (NSW) 69
Liang v Secretary, Dept of Social Services [2015] AATA 275
Lord v Dernacourt Investments Pty Ltd (Supreme Court of New South Wales, McLelland CJ in Eq, 14 March 1994, unreported)
Lyu v Jeon [2012] NSWCA 446
Makhoul v Barnes (1995) 60 FCR 572
Mohareb v Palmer [2015] NSWCA 369
Reeves v Reeves (2002) 36 MVR 488
Rhodes v Fletcher [2002] NSWSC 637
Tiufino v Warland (2000) 50 NSWLR 104Texts Cited: Spencer Bower and Handley, “Res Judicata”, 4th ed (LexisNexis Butterworth) Category: Principal judgment Parties: Plaintiff: Genevieve Audrey Amor-Smith
Defendant: Peter ChingRepresentation: Counsel:
Solicitors:
Plaintiff: Mr M Thompson
Defendant: Mr A J J Renshaw
Plaintiff: Charleston Lawyers
Defendant: Hall…
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Details
- AGLC
- Amor-Smith v Ching [2016] NSWDC 89
- Case
- [2016] NSWDC 89
- Decision Date
CaseChat Overview and Summary
The proceedings were brought by the plaintiff, Amor-Smith, who sought damages for personal injuries sustained in a motor vehicle accident in 2011. The defendant, Ching, had been found liable in property damage proceedings, with a consent judgment obtained in the Local Court. Amor-Smith brought the current proceedings outside the statutory limitation period under the Motor Accidents Compensation Act 1999 (NSW), and sought to rely on estoppel per rem judicatam. The court was required to determine whether Amor-Smith had provided a satisfactory explanation for the delay in bringing the proceedings and whether the total damages were likely to be at least 25% of the maximum amount that may be awarded. The court also needed to decide whether the addition of the words “without admission of liability” to the consent judgment meant that no issue estoppel arose.
The court considered that Amor-Smith had not provided a satisfactory explanation for the delay in bringing the proceedings, and that the total damages were not likely to be at least 25% of the maximum amount that may be awarded. The court also held that the addition of the words “without admission of liability” to the consent judgment did not mean that no issue estoppel arose. The court dismissed the summons on all grounds, and ordered that Amor-Smith pay Ching’s costs. The court reserved the defendant’s application for referral of the proceedings to the Director of Public Prosecution until the handing down of judgment.
The court found that Amor-Smith had not provided a satisfactory explanation for the delay in bringing the proceedings. The court noted that Amor-Smith had suffered a psychiatric injury in the accident, but had not sought psychiatric treatment until 2014. The court held that this was not a satisfactory explanation for the delay, as Amor-Smith had not provided any evidence to show that the delay was due to the psychiatric injury. The court also held that the total damages were not likely to be at least 25% of the maximum amount that may be awarded. The court noted that Amor-Smith had not provided any evidence to support his claim for damages, and that the amount claimed was relatively small. The court held that this was not sufficient to establish that the total damages were likely to be at least 25% of the maximum amount that may be awarded.
The court further held that the addition of the words “without admission of liability” to the consent judgment did not mean that no issue estoppel arose. The court noted that the words were added to the judgment at the request of Ching’s solicitor, and that there was no evidence to suggest that Amor-Smith had agreed to the addition. The court held that the addition did not affect the operation of the estoppel per rem judicatam, as the consent judgment had effectively determined the issue of liability in the property damage proceedings. The court dismissed the summons on all grounds, and ordered that Amor-Smith pay Ching’s costs. The court reserved the defendant’s application for referral of the proceedings to the Director of Public Prosecution until the handing down of judgment.
The court considered that Amor-Smith had not provided a satisfactory explanation for the delay in bringing the proceedings, and that the total damages were not likely to be at least 25% of the maximum amount that may be awarded. The court also held that the addition of the words “without admission of liability” to the consent judgment did not mean that no issue estoppel arose. The court dismissed the summons on all grounds, and ordered that Amor-Smith pay Ching’s costs. The court reserved the defendant’s application for referral of the proceedings to the Director of Public Prosecution until the handing down of judgment.
The court found that Amor-Smith had not provided a satisfactory explanation for the delay in bringing the proceedings. The court noted that Amor-Smith had suffered a psychiatric injury in the accident, but had not sought psychiatric treatment until 2014. The court held that this was not a satisfactory explanation for the delay, as Amor-Smith had not provided any evidence to show that the delay was due to the psychiatric injury. The court also held that the total damages were not likely to be at least 25% of the maximum amount that may be awarded. The court noted that Amor-Smith had not provided any evidence to support his claim for damages, and that the amount claimed was relatively small. The court held that this was not sufficient to establish that the total damages were likely to be at least 25% of the maximum amount that may be awarded.
The court further held that the addition of the words “without admission of liability” to the consent judgment did not mean that no issue estoppel arose. The court noted that the words were added to the judgment at the request of Ching’s solicitor, and that there was no evidence to suggest that Amor-Smith had agreed to the addition. The court held that the addition did not affect the operation of the estoppel per rem judicatam, as the consent judgment had effectively determined the issue of liability in the property damage proceedings. The court dismissed the summons on all grounds, and ordered that Amor-Smith pay Ching’s costs. The court reserved the defendant’s application for referral of the proceedings to the Director of Public Prosecution until the handing down of judgment.
Orders
Orders of the court
(1) Summons filed on 31 August 2015 dismissed.
(2) Plaintiff pay defendant’s costs.
(3) Liberty to restore in relation to costs and to any other post-judgment application.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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