Baker v Salagiannis - [2009] NSWCA 385

NEW SOUTH WALES COURT OF APPEAL

CITATION:
BAKER v SALAGIANNIS [2009] NSWCA 385

FILE NUMBER(S):
40075/09

HEARING DATE(S):
20 November 2009

JUDGMENT DATE:
27 November 2009

PARTIES:
Janet Baker - Applicant
Georgina Salagiannis - Respondent

JUDGMENT OF:
McColl JA Basten JA Sackville AJA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 3359/2008

LOWER COURT JUDICIAL OFFICER:
Garling DCJ

LOWER COURT DATE OF DECISION:
15 December 2008

COUNSEL:
D J Russell SC/J Catsanos - Applicant
J Jobson - Respondent

SOLICITORS:
Curwoods Lawyers - Applicant
Conomos & Spinak Lawyers - Respondent

CATCHWORDS:
EVIDENCE – application for leave to commence proceedings out of time – tender of assessment by claims assessor – whether able to be taken into account – tender of reasons for assessment – whether relevant absent assessment – [Motor Accidents Compensation Act 1999] (NSW), s 115
LIMITATION OF ACTION – leave to commence proceedings after expiration of limitation period – motor accident compensation claim – whether total damages likely to be awarded were not less than 25% of the maximum amount for non-economic loss – [Motor Accidents Compensation Act 1999] (NSW), s 109
LIMITATION OF ACTION – application for leave to commence proceedings out of time – meaning of “likely” – whether assessment of likely damages required – evidence tendered not the subject of challenge - [Motor Accidents Compensation Act 1999] (NSW), s 109

LEGISLATION CITED:
[District Court Act 1973] (NSW), s 127
[Motor Accidents Compensation Act 1999] (NSW), ss 94, 109, 115, 134, 146
[Statute Law (Miscellaneous Provisions) Act (No 2) 2000] (NSW), Schedule 1.11

CATEGORY:
Principal judgment

CASES CITED:
[Australian Competition and Consumer Commission v Baxter Health Care Pty Ltd] [2007] HCA 38; 232 CLR 1
[Master Education Services Pty Ltd v Ketchell] [2008] HCA 38; 236 CLR 101
[Reeves v Reeves] [2002] NSWCA 181
[Smits v Roach] [2006] HCA 36; 227 CLR 423
[Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union] [1979] FCA 85; 42 FLR 331
[Vital Finance Corporation v Taylor] (1996) 40 NSWLR 25

TEXTS CITED:

DECISION:
(1) Grant the applicant leave to appeal from the judgment of 15 December 2008 given in the District Court.
(2) Direct the applicant to file her draft notice of appeal within 7 days.
(3) Dismiss the appeal.
(4) Order that the applicant pay the respondent’s costs in this Court.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40075/2009
DC 3359/2008
McCOLL JA
BASTEN JA
SACKVILLE AJA
27 November 2009

Janet BAKER v Georgina SALAGIANNIS

Judgment

McCOLL JA: I agree with Basten JA.
BASTEN JA: On 19 September 2001 Ms Salagiannis (“the plaintiff”) was injured in a motor vehicle accident involving a car driven by Ms Baker. (Because Ms Baker was the moving party in this Court it is convenient to refer to her as “the applicant”.)
On 25 July 2008 the plaintiff sought leave to commence proceedings with respect to her claim against the applicant pursuant to s…

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.

Continue reading Baker v Salagiannis

Details

AGLC: Baker v Salagiannis [2009] NSWCA 385
Case: [2009] NSWCA 385
Decision Date: 27 November 2009

CaseChat Overview and Summary

In the matter of *Baker v Salagiannis*, the applicant sought leave to commence proceedings out of time in the District Court of New South Wales concerning a motor accident compensation claim. The respondent was the defendant in the original proceedings. The core of the dispute revolved around the applicant's failure to initiate her claim within the statutory time limits prescribed by the *Motor Accidents Compensation Act 1999* (NSW).

The legal issues before the court were whether the applicant had established grounds for leave to commence proceedings out of time under section 109 of the Act, specifically whether the total damages likely to be awarded were not less than 25% of the maximum amount for non-economic loss. A further issue concerned the admissibility and relevance of evidence tendered by the applicant, including an assessment by a claims assessor and the reasons for that assessment, in the context of section 115 of the Act. The court also had to consider the meaning of the word "likely" in section 109 and whether an assessment of likely damages was a prerequisite for such an application.

The court considered the evidence presented, noting that the assessment by the claims assessor was not challenged. However, it found that the applicant had not demonstrated that the total damages likely to be awarded were not less than 25% of the maximum amount for non-economic loss, a crucial threshold for granting leave under section 109. The reasons for the assessment, absent the assessment itself, were deemed irrelevant to this determination.

Ultimately, the Court of Appeal granted the applicant leave to appeal the District Court's judgment but dismissed the appeal itself, ordering the applicant to pay the respondent's costs.

Orders

Orders of the court

(1) Grant the applicant leave to appeal from the judgment of 15 December 2008 given in the District Court.

(2) Direct the applicant to file her draft notice of appeal within 7 days.

(3) Dismiss the appeal.

(4) Order that the applicant pay the respondent’s costs in this Court.

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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