Barnett v Harrison - [2016] NSWCA 184

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Barnett v Harrison [2016] NSWCA 184
Hearing dates: 26/07/2016
Date of orders: 26 July 2016
Decision date: 26 July 2016
Before: Basten JA at [33]; [41];
Leeming JA at [38];
McDougall J at [1].
Decision:
(1) Dismiss the application for leave to appeal.
(2) The applicant is to pay the respondent’s costs on the ordinary basis up to 30 June 2016 and thereafter on the indemnity basis.
Catchwords:
APPEAL – leave to appeal – extension of time to commence proceedings for compensation – whether respondent gave full and satisfactory explanation for delay – whether respondent aware of time limit for bringing proceedings – leave refused
MOTOR ACCIDENT – delay in commencing proceedings – whether full and satisfactory explanation – timely claim made – claim referred for assessment – assessment process pursued – calculation of time for commencement of court proceedings
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 66, 72, 81, 108, 109
Cases Cited: Itek Graphix Pty Ltd v Elliot [2002] NSWCA 104; (2002) 54 NSWLR 207
Walker v Howard [2009] NSWCA 408; (2009) 78 NSWLR 161
Category: Principal judgment
Parties: Kelli Barnett (Applicant)
Tulasi Harrison (Respondent)
Representation:
Counsel:
Mr J Turnbull SC / Ms S Warren (Applicant)
Mr A J Stone SC / Ms H Wall (Respondent)
Solicitors:
Curwoods Lawyers (Applicant)
Shine Lawyers (Respondent)

File Number(s): 2015/361576
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

12 November 2015

Before:

Norton SC DCJ

File Number(s):

2014/269446

Judgment

MCDOUGALL J: The respondent (Ms Harrison) was injured in a motor vehicle accident on 2 August 2002. The car in which she was then a passenger collided head on with another car driven by the applicant (Ms Barnett). Ms Harrison suffered significant injuries and disabilities, apparently as a result of the accident.
Ms Harrison gave Notice of Claim, pursuant to s 72 of the Motor Accidents Compensation Act1999 (NSW), (the MAC Act). She did so within time. Further, either within time or irrelevantly out of time, the insurer gave notice pursuant to s 81 of the MAC Act admitting liability. Ms Harrison's claim for compensation was thus launched upon the Claims Assessment and Resolution Service (CARS) process. By virtue of s 108(1) of the MAC Act, Ms Harrison could not commence proceedings until the CARS process had been resolved one way or the other.
For reasons that it is unnecessary to recount, the CARS process ended inconclusively. Two assessments were issued. Each was set aside by the Supreme Court. Thereafter, the insurer sought and was given exemption from the assessment process.
In those circumstances, if Ms Harrison wished to pursue her claim for compensation, it was necessary that she should commence proceedings in a Court. However, because this process ended long after the expiry of the three year time limit set out in s 109 of the MAC Act, it was necessary for her to…

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 Barnett v Harrison

Details

AGLC: Barnett v Harrison [2016] NSWCA 184
Case: [2016] NSWCA 184
Decision Date: 26 July 2016

CaseChat Overview and Summary

The appeal concerned an application for leave to appeal a decision of the District Court of New South Wales, which had refused an extension of time to commence proceedings for compensation under the *Motor Accidents Compensation Act 1999* (NSW). The applicant, Mr Harrison, sought to bring a claim against Mr Barnett following a motor accident.

The primary legal issue before the Court of Appeal was whether the primary judge erred in finding that Mr Harrison had not provided a "full and satisfactory explanation" for his delay in commencing proceedings. This required the court to consider whether Mr Harrison was aware of the time limit for bringing proceedings and whether his pursuit of the statutory claim assessment process constituted a sufficient reason for the delay in initiating court action.

The Court of Appeal affirmed the primary judge's decision, finding that Mr Harrison was aware of the time limit for commencing court proceedings. While acknowledging that Mr Harrison had made a timely claim and engaged in the assessment process, the court determined that this engagement did not excuse his failure to commence court proceedings within the prescribed time. The court held that the assessment process, while relevant, did not prevent Mr Harrison from seeking an extension of time or commencing proceedings, and therefore, his explanation for the delay was not sufficiently full and satisfactory.

Consequently, the Court of Appeal dismissed the application for leave to appeal. The court ordered that the applicant, Mr Barnett, was to pay the respondent's, Mr Harrison's, costs on the ordinary basis up to 30 June 2016 and thereafter on the indemnity basis.

Orders

Orders of the court

(1) Dismiss the application for leave to appeal.

(2) The applicant is to pay the respondent’s costs on the ordinary basis up to 30 June 2016 and thereafter on the indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Barnett v Harrison [2016] NSWCA 184
Hearing dates:	26/07/2016
Date of orders:	26 July 2016
Decision date:	26 July 2016
Before:	Basten JA at [33]; [41]; Leeming JA at [38]; McDougall J at [1].
Decision:	(1) Dismiss the application for leave to appeal. (2) The applicant is to pay the respondent’s costs on the ordinary basis up to 30 June 2016 and thereafter on the indemnity basis.
Catchwords:	APPEAL – leave to appeal – extension of time to commence proceedings for compensation – whether respondent gave full and satisfactory explanation for delay – whether respondent aware of time limit for bringing proceedings – leave refused MOTOR ACCIDENT – delay in commencing proceedings – whether full and satisfactory explanation – timely claim made – claim referred for assessment – assessment process pursued – calculation of time for commencement of court proceedings
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 66, 72, 81, 108, 109
Cases Cited:	Itek Graphix Pty Ltd v Elliot [2002] NSWCA 104; (2002) 54 NSWLR 207 Walker v Howard [2009] NSWCA 408; (2009) 78 NSWLR 161
Category:	Principal judgment
Parties:	Kelli Barnett (Applicant) Tulasi Harrison (Respondent)
Representation:	Counsel: Mr J Turnbull SC / Ms S Warren (Applicant) Mr A J Stone SC / Ms H Wall (Respondent) Solicitors: Curwoods Lawyers (Applicant) Shine Lawyers (Respondent)
File Number(s):	2015/361576
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 12 November 2015 Before: Norton SC DCJ File Number(s): 2014/269446