Antonini v SRA (No 1)

[2006] NSWDC 128

CITATION:	Antonini v SRA (No 1) [2006] NSWDC 128
HEARING DATE(S):	25/10/06
EX TEMPORE JUDGMENT DATE:	11/15/2006
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. The question of whether the time for commencement of proceedings is to be extended is to be determined pursuant to s 50C of the Limitation Act 1969. The parties have liberty to approach the Registrar forthwith for a date for the hearing of the plaintiff’s application pursuant to that provision ; 2. The motion is adjourned to that date; 3. Costs of the motion are reserved pending the outcome of the hearing; 4. The plaintiff is to file and serve any affidavit upon which she relies in support of the application by not later than 4pm on Friday 17 November 2006; 5. Any affidavit material in reply is to be filed and served by not later than 4pm on 24 November 2006.
CATCHWORDS:	INTERLOCUTORY - STATUTORY CONSTRUCTION
LEGISLATION CITED:	Limitation Act 1969 Motor Accidents Compensation Act 1999 Transport Administration Act 1998.
PARTIES:	Helen Antonini State Rail Authority
FILE NUMBER(S):	Newcastle 376/06
COUNSEL:	Plaintiff-respondent - C A W Hart Defendant-applicant - K W Andrews
SOLICITORS:	Bale Boshev Gillis Delaney Lawyers

JUDGMENT

HER HONOUR

1 In this matter Helen Antonini has commenced proceedings against the State Rail Authority of New South Wales on the basis that her proceedings relate to a public transport accident as defined by the Transport Administration Act 1998.

2 She was injured in a fall from a train on 30 July 2003. Her proceedings were commenced on 11 August 2006, that is, three years and twelve days after the date of her accident.

3 The issue to be determined on the motion filed on behalf of the defendant is which of s 50C of the Limitation Act 1969 or s 109 of the Motor Accidents Compensation Act 1999 applies to the determination of the necessary application for an extension of time within which to bring proceedings.

4 This situation arises because s 121 of the Transport Administration Act applies Chapter 5 of the Motor Accidents Compensation Act to an award of damages caused by or arising out of a public transport accident, so that in Chapter 5 a reference to a motor accident includes a reference to a public transport accident.

5 The provisions of Division 6 of the Limitations Act 1969 on their face impose a more onerous burden on injured parties who seek further time within which to bring proceedings than those of s 109 of the Motor Accidents Act. The Division is applied, as already noted, by reference to a cause of action.

6 Section 50A(1) applies to a cause of action for damages that relates to personal injury, regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise.

7 Section 50A(3) provides that Division 6 does not apply to a cause of action on a claim under the Motor Accidents Compensation Act 1999.

8 Cause of action is not defined in the Limitations Act. The Act defines the term action as any proceeding in a court. From this I have drawn the conclusion that the effect of s 50A(3) is that Division 6 does not apply to an action in a court on a claim brought under the Motor Accidents Compensation Act.

9 Section 3 of the Motor Accidents Compensation Act defines claim as:

a claim for damages in respect of the death or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.

10 It was argued for the plaintiff that having regard to this definition the plaintiff has a cause of action on a claim under the Motor Accidents Compensation Act. I do not accept this argument for the following reasons.

(1) It elevates the definition of claim to the status of a substantive provision;

(2) S 121 of the Transport Administration Act applies only Chapter 5 of the Motor Accidents Compensation Act to public transport accidents.

(3) Chapter 5 applies certain obligations or constraints to the assessment of damages for economic and non-economic loss. The only provision in Chapter 5 which links into any other part of the Motor Accidents Compensation Act is s 132. This provision requires that disputes about a claimant’s degree of permanent impairment be referred for medical assessment in accordance with Pt 3.4 appearing in Chapter 3.

(4) Section 109 appears in Chapter 4 of the Motor Accidents Compensation Act . This Chapter also contains a number of procedural preconditions to the commencement of court proceedings such as obligations to report to police, to give notice of a claim within a specified period, and provides for the assessment of claims through the Claims Assessment and Resolution Service operated by the Motor Accidents Authority. It was not suggested that any of these requirements applied to the plaintiff’s claim.

11 My conclusion, therefore, is that the plaintiff’s claim arises out of a cause of action for personal injury brought under the Transport Administration Act. This Act requires that her damages be assessed on the basis of the provisions of Chapter 5 of the Motor Accidents Compensation Act. In so doing, it does not convert her claim to a cause of action on a claim under the Motor Accidents Compensation Act.

12 The orders which I make are as follows.

1. The question of whether the time for commencement of proceedings is to be extended is to be determined pursuant to s 50C of the Limitation Act 1969. The parties have liberty to approach the Registrar forthwith for a date for the hearing of the plaintiff’s application pursuant to that provision.

2. The motion is adjourned to that date.

3. Costs of the motion are reserved pending the outcome of the hearing.

4. The plaintiff is to file and serve any affidavit upon which she relies in support of the application by not later than 4pm on Friday 17 November 2006.

5. Any affidavit material in reply is to be filed and served by not later than 4pm on 24 November 2006.

*********