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 – [<i>Motor Accidents Compensation Act 1999</i>] (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 – [<i>Motor Accidents Compensation Act 1999</i>] (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 - [<i>Motor Accidents Compensation Act 1999</i>] (NSW), s 109
LEGISLATION CITED:
[<i>District Court Act 1973</i>] (NSW), s 127
[<i>Motor Accidents Compensation Act 1999</i>] (NSW), ss 94, 109, 115, 134, 146
[<i>Statute Law (Miscellaneous Provisions) Act (No 2) 2000</i>] (NSW), Schedule 1.11
CATEGORY:
Principal judgment
CASES CITED:
[<i>Australian Competition and Consumer Commission v Baxter Health Care Pty Ltd</i>] [2007] HCA 38; 232 CLR 1
[<i>Master Education Services Pty Ltd v Ketchell</i>] [2008] HCA 38; 236 CLR 101
[<i>Reeves v Reeves</i>] [2002] NSWCA 181
[<i>Smits v Roach</i>] [2006] HCA 36; 227 CLR 423
[<i>Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union</i>] [1979] FCA 85; 42 FLR 331
[<i>Vital Finance Corporation v Taylor</i>] (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 3359/2008McCOLL JA
BASTEN JA
SACKVILLE AJA27 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…
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- AGLC
- Baker v Salagiannis [2009] NSWCA 385
- Case
- [2009] NSWCA 385
- Decision Date
CaseChat Overview and Summary
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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