Atikullah v Sefton

[2001] NSWCA 385

Reported Decision: 53 NSWLR 574

New South Wales

Court of Appeal

CITATION:	ATIKULLAH V. SEFTON [2001] NSWCA 385
FILE NUMBER(S):	CA 40649/00
HEARING DATE(S):	10 October 2001
JUDGMENT DATE:	5 November 2001
PARTIES :	Mohammed Atikullah - appellant Jo-Anne Sefton - Respondent
JUDGMENT OF:	Sheller JA at 1; Hodgson JA at 2; Ipp AJA at 69

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 470/00
LOWER COURT JUDICIAL OFFICER :	Rolfe DCJ

COUNSEL:	Mr. J.D. Hislop QC with Mr. G.J. Bateman - appellant Mr. L. King SC with Mr. R.I. Goodridge - respondent
SOLICITORS:	Henry Davis York - appellant Firths - respondent
CATCHWORDS:	TORTS - Negligence - Motor accident - Requirements of Motor Accidents Act for co-operation before proceedings, provision of details, and time limits - Failure to give details of Griffiths v. Kerkemeyer claim - Whether proceedings could continue without such claim. D.
LEGISLATION CITED:	Motor Accidents Act 1988, ss.40, 48, 50A, 52.
CASES CITED:	Hill v. Bolt (1992) 28 NSWLR 329 Serhan v. Serhan, Court of Appeal, 5/8/96 Osman v. Singh, Court of Appeal, 20/10/96 Dandashli v. Dandashli, Court of Appeal, 16/12/96
DECISION:	See par.68 of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

C A 40649/00
DC 470/00

SHELLER JA

HODGSON JA

IPP AJA

Monday 5th November 2001


ATIKULLAH V. SEFTON

Judgment

: I agree with the judgment of Hodgson JA as set out below.

On 4th August 2000, Rolfe DCJ dismissed a Notice of Motion brought by the appellant Mohammed Atikullah, in which the appellant sought orders that proceedings commenced by the respondent Jo-Anne Sefton against the appellant be dismissed by reason of the respondent’s alleged failure to comply with the provisions of ss.48(3), 50A and 52(4) of the Motor Accidents Act 1988 (“the Act”). Apparently because of that decision, Rolfe DCJ did not deal with a Notice of Motion brought by the respondent and heard at the same time, by which the respondent sought leave to commence proceedings out of time pursuant to s.52(4) of the Act.

3 On 19th March 2001, leave was granted to the appellant to appeal from the dismissal of its Notice of Motion, and we are now dealing with that appeal.

BRIEF HISTORY

4 The respondent sustained injuries in a motor vehicle accident at South Coogee, New South Wales, on 29th November 1996.

5 On 21st January 1997 the respondent, through her solicitors, served a claim under s.43 of the Act on the appellant’s insurer, and on 24th February 1997, she provided particulars purportedly pursuant to s.50A of the Act.

6 On 30th June 1997, the appellant’s insurer wrote to the respondent’s solicitors requesting further and better particulars, including the following:

11. Full details of your client's claim for household services:
a) names and addresses of the person or agency providing these services;
b) nature of the duties performed;
c) details of any wages paid/or to be paid;
d) relationship of the injured person (if any);
e) are these services essential…