Emmett JA at [1]; Leeming JA at [54]; Adamson J at [59]
Decision:
(1) Leave to appeal be granted.
(2) The notice of appeal filed on 19 March 2014 stand as the notice of appeal.
(3) The appeal be allowed.
(4) The orders made by the District Court on 20 December 2013 be set aside.
(5) The summons of 18 January 2013 be remitted to the District Court for determination of the question of whether or not the applicant has provided a full and satisfactory explanation for his delay in commencement of proceedings for recovery of damages in respect of the injuries suffered in the accident on 20 November 2007.
(6) The respondent pay the applicant’s costs of the application for leave to appeal and of the appeal.
Catchwords:
PROCEDURE – judgments and orders – second application for leave under s 109(1) of the Motor Accidents Compensation Act 1999 (NSW) – whether that application was an abuse of process – whether the trial judge erred in failing to consider whether the applicant had provided a full and satisfactory explanation for the delay in commencing proceedings
PROCEDURE – conduct of proceedings – party bound by the way in which his or her counsel conducts a trial – jurisdiction to interfere in the case of inadvertence or incompetence on the part of an advocate
Counsel: R Sheldon SC with P Khandhar (Applicant) J Turnbull (Respondent)
Solicitors: LJ Sharpe & Co (Applicant) T L Lawyers (Respondent)
File Number(s):
2013/384575
Publication restriction:
Nil
Decision under appeal
Court or tribunal:
District Court of New South Wales
Date of Decision:
20 December 2013
Before:
Balla DCJ
File Number(s):
2013/16816
Judgment
EMMETT JA: These proceedings are concerned with the circumstances in which an unsuccessful application for the grant of leave under s 109(1) of the Motor Accidents Compensation Act 1999 (NSW) (the Motor Accidents Act) will preclude the making of a second application on the ground that the second application is an abuse of process. Section 109 relevantly…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Bajramovic v Calubaquib [2015] NSWCA 139
Case
[2015] NSWCA 139
Decision Date
CaseChat Overview and Summary
The case of *Bajramovic v Calubaquib* concerned an application for leave to appeal to the Court of Appeal of New South Wales. The applicant sought to appeal orders made by the District Court which had dismissed his summons for leave to commence proceedings for damages arising from a motor accident. The central dispute revolved around whether the applicant had provided a sufficient explanation for the significant delay in commencing his claim.
The Court of Appeal was required to determine two primary legal issues. Firstly, whether the applicant's second application for leave under section 109(1) of the *Motor Accidents Compensation Act 1999* (NSW) constituted an abuse of process. Secondly, the court had to consider whether the trial judge erred by failing to adequately assess whether the applicant had furnished a full and satisfactory explanation for the delay in initiating proceedings.
In its reasoning, the Court of Appeal found that the trial judge had erred in dismissing the summons without a proper consideration of the explanation for the delay. The court acknowledged the principle that a party is generally bound by the conduct of their counsel at trial, but it also recognised that there are circumstances, such as inadvertence or incompetence, where the court may intervene. The court concluded that the applicant should have been afforded the opportunity to have the question of the adequacy of his explanation for the delay determined.
Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the orders of the District Court. The matter was remitted to the District Court for determination of whether the applicant had provided a full and satisfactory explanation for the delay in commencing proceedings. The respondent was ordered to pay the applicant's costs of the application for leave and the appeal.
Orders
Orders of the court
(1) Leave to appeal be granted.
(2) The notice of appeal filed on 19 March 2014 stand as the notice of appeal.
(3) The appeal be allowed.
(4) The orders made by the District Court on 20 December 2013 be set aside.
(5) The summons of 18 January 2013 be remitted to the District Court for determination of the question of whether or not the applicant has provided a full and satisfactory explanation for his delay in commencement of proceedings for recovery of damages in respect of the injuries suffered in the accident on 20 November 2007.
(6) The respondent pay the applicant’s costs of the application for leave to appeal and of the appeal.