Brierley v Ellis

Case [2014] NSWCA 230


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Brierley v Ellis [2014] NSWCA 230
Hearing dates:25 February 2014
Decision date: 17 July 2014
Before: Basten JA at [1];
Meagher JA at [2];
Gleeson JA at [60]
Decision:

(1) Grant leave to appeal.

(2) Appeal allowed.

(3) Set aside orders of the District Court made on 22 March 2013.

(4) In place thereof,

(a) dismiss the defendant's motion of 27 September 2012 seeking to dismiss the proceedings pursuant to s 73(7) of the Motor Accidents Compensation Act 1999 (NSW);

   (b) order the defendant to pay the plaintiff's costs of the defendant's motion.

(5) Order the respondent to pay the applicant/appellant's costs of the application for leave to appeal and appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: MOTOR ACCIDENT COMPENSATION - whether primary judge erred in not being satisfied that plaintiff/appellant had provided a "full and satisfactory explanation" within s 66(2) of Motor Accidents Compensation Act 1999 (NSW) for delay in making a motor accident claim - explanation for delay given by hearsay evidence which was not objected to - principles relevant to admissibility of and weight to be given to that evidence
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 3, 33, 72, 73
Cases Cited: Buller v Black [2003] NSWCA 45; 56 NSWLR 425
Clyne v Law Society of New South Wales (Court of Appeal (NSW), 4 September 1987, unrep)
Diaz v Truong [2002] NSWCA 265; 37 MVR 158
Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1979] HCA 2; 143 CLR 134
Lyu v Jeon [2012] NSWCA 446
Metropolitan Railway Co v Jackson (1877) 3 App Cas 193
Russo v Aiello [2003] HCA 53; 215 CLR 643
Walker v Howard [2009] NSWCA 408; 78 NSWLR 161
Category:Principal judgment
Parties: Patrick Brierley (Applicant/Appellant)
Isaac Ellis (Respondent)
Representation: Counsel:
B Dooley SC (Applicant/Appellant)
K P Rewell SC (Respondent)
Solicitors:
Carroll & O'Dea (Applicant/Appellant)
Hunt & Hunt (Respondent)
File Number(s):2013/119818
 Decision under appeal 
Jurisdiction:
9101
Citation:
Brierley v Ellis (District Court of New South Wales, Gibb DCJ, 22 March 2013, unrep)
Date of Decision:
2013-03-22 00:00:00
Before:
Gibb DCJ
File Number(s):
2012/129042

Judgment

  1. BASTEN JA: I agree with the orders proposed by Meagher JA and with his reasons.

  1. MEAGHER JA: This is a concurrent hearing of an application for leave to appeal and the appeal. The primary judge (S J Gibb DCJ) dismissed the applicant's proceeding for damages suffered in a motor accident because he had not given notice of that claim within the six months required by s 72(1) of the Motor Accidents…

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AGLC
Brierley v Ellis [2014] NSWCA 230
Case
[2014] NSWCA 230
Decision Date

CaseChat Overview and Summary

The appeal in *Brierley v Ellis* concerned a motor accident claim brought by the plaintiff/appellant against the defendant/respondent. The central dispute revolved around whether the primary judge had erred in finding that the appellant had not provided a "full and satisfactory explanation" for the delay in lodging their claim, as required by section 66(2) of the *Motor Accidents Compensation Act 1999* (NSW). The matter was heard in the Court of Appeal of New South Wales by Basten, Meagher and Gleeson JJA.

The legal issues before the Court of Appeal were twofold: firstly, whether the primary judge had correctly applied the principles governing the admissibility and weight of hearsay evidence when considering the explanation for the delay; and secondly, whether, based on the evidence before the court, the primary judge erred in concluding that the explanation for the delay was not full and satisfactory.

The Court of Appeal allowed the appeal, finding that the primary judge had erred in their assessment. The court noted that the explanation for the delay was largely provided through hearsay evidence, which, although not objected to by the respondent, was given insufficient weight by the primary judge. The court applied the principle that hearsay evidence, even if unobjected to, can still be considered and given appropriate weight in determining whether a satisfactory explanation for delay has been provided. Consequently, the court set aside the orders of the District Court that had dismissed the proceedings and ordered that the defendant's motion to dismiss be dismissed instead, with costs awarded to the plaintiff.

Orders

Orders of the court

(1) Grant leave to appeal.

(2) Appeal allowed.

(3) Set aside orders of the District Court made on 22 March 2013.

(4) In place thereof,

(a) dismiss the defendant's motion of 27 September 2012 seeking to dismiss the proceedings pursuant to s 73(7) of the Motor Accidents Compensation Act 1999 (NSW);

(b) order the defendant to pay the plaintiff's costs of the defendant's motion.

(5) Order the respondent to pay the applicant/appellant's costs of the application for leave to appeal and appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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