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Brierley v Ellis

Brierley v Ellis

Case [2014] NSWCA 230 17 July 2014

Statutory Interpretation

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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

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

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…

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 Brierley v Ellis

Details

AGLC: Brierley v Ellis [2014] NSWCA 230
Case: [2014] NSWCA 230
Decision Date: 17 July 2014

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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Citations

AGLC Citation

Brierley v Ellis [2014] NSWCA 230

Most Recent Citation

Joukhador v Network Ten Pty Limited [2020] FCA 746

Cases citing this decision · 17 of 17 shown

Dahdah v Witte
[2023] NSWCA 304 Para 7

…s from the date of the accident until the date of providing the explanation for the delay in commencing proceedings: Brierley v Ellis [2014] NSWCA 230; 67 MVR 282 at [7]; Karambelas v Zaknic at [16]; Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 at [48]; Russo v Aiello [2003] HCA 53; 215 CLR 643 at [4]; Mancini v…
Syed v Cic Allianz Insurance Ltd
[2021] NSWDC 20 Para 70

…the plaintiff would have experienced the delay in taking necessary steps to preserve claiming rights as has occurred in this case: Brierley v Ellis [2014] NSWCA 230, at [7].…
Kheyo v Iglesias
[2020] NSWDC 323 Para 44

…n in the claimant’s position would have experienced the delay and his or her delay would have been justified in the circumstances: Brierley v Ellis [2014] NSWCA 230 at [7].…
Joukhador v Network Ten Pty Limited
[2020] FCA 746 Para 11

…hat the evidence was hearsay did not permit "the primary judge to do other than address it on its terms as reasonably understood": Brierley v Ellis [2014] NSWCA 230; (2014) 67 MVR 282 (at [28]) per Meagher JA (Basten and Gleeson JJA agreeing).…
Transport Accident Commission of Victoria v Jovanic
[2019] NSWSC 1137 Para 7

…te of the accident until the date of providing the explanation for the delay in commencing proceedings. [24] ” 24. Brierley v Ellis [2014] NSWCA 230; 67 MVR 282 at [7]; Karambelas v Zaknic at [16]; Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 at [48]; Russo v Aiello [2003] HCA 53; 215 CLR 643 at [4]; Mancini v Th…
Hunter v Roberts
[2019] NSWCA 116 Para 29

…ation; the issue was whether it was a “satisfactory” one. 1. Motor Accidents Compensation Act 1999 (NSW), s 66(2), s 73; Brierley v Ellis [2014] NSWCA 230 at [7] (Meagher JA; with whom Basten JA and Gleeson JA agreed); Karambelas v Zaknic (No 2) [2014] NSWCA 433 at [16]-[17] (Meagher JA, with whom Basten JA and Sim…
Milaki v Dam
[2019] NSWDC 241 Para 24

…Statements were tendered without objection in Brierley v Ellis [2014] NSWCA 230. The result was that the statements became evidence upon which the first instance judge was entitled to rely. The correct course for the defendant to take would have been to object to the tender of the statements unless the witnesses we…
State of New South Wales v Thomlinson
[2018] NSWCA 151 Para 35

…7; 53 ER 156 (Sir John Romilly MR); Clyne v Law Society (Court of Appeal (NSW), 4 September 1987, unrep), cited with approval in Brierley v Ellis [2014] NSWCA 230 at [24] (Meagher JA, Basten and Gleeson JJA agreeing). However, if the party against whom “untested” evidence has been adduced has the opportunity to tes…
Australian Securities and Investments Commission v Schlaepfer
[2017] NSWCA 247

…ce was hearsay did not permit ‘the primary judge to do other than address it on its terms as reasonably understood’: Brierley v Ellis [2014] NSWCA 230; (2014) 67 MVR 282 (at [28]) per Meagher JA (Basten and Gleeson JJA agreeing).” 26. Howley at [55] (Meagher and Barrett JJA agreeing).…
Khamiss v Sydney Roof Masters Pty Ltd
[2017] NSWDC 48

…that the evidence was hearsay did not permit "the primary judge to do other than address it on its terms as reasonably understood": Brierley v Ellis [2014] NSWCA 230; (2014) 67 MVR 282 (at [28]) per Meagher JA (Basten and Gleeson JJA agreeing). 56. While appearing to reject the explanation proffered through Mr Mor…
Charles Henry Thomlinson v The State of New South Wales
[2016] NSWDC 369

….8 Cases Cited: A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 Alderson v Booth [1969] 2 QB 216 Brierley v Ellis [2014] NSWCA 230 Cleland v The Queen (1982) 151 CLR 1 Cowell v Rosehill Racecourse Company Limited (1937) 56 CLR 605 Coyle v State of New South Wales [2006] NSWCA 95 Croucher v Cachia [2016] NSWCA…
Bird by her next friend Bird v Connell
[2016] NSWDC 276 Para 3

…These witnesses were not cross-examined ( Brierley v Ellis (2014) 67 MVR 282 at [22] – [28]).…
Glenn Turner v Harrington Estates (NSW) Pty Ltd t/as Harrington Grove Country Club and Hassell Ltd
[2015] NSWDC 256 Para 88

…Its contents and Exhibit H are, in my view, consistent with the observations of other witnesses at the time of the accident. 99. See Brierley v Ellis [2014] NSWCA 230 at [23]-[27]…
Dijakovic v Perez
[2015] NSWCA 174 Para 81

…is from the date of the accident until the date of providing the explanation for the delay in commencing proceedings: Brierley v Ellis [2014] NSWCA 230; 67 MVR 282 at [7]; Karambelas v Zaknic at [16]; Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 at [48]; Russo v Aiello [2003] HCA 53; 215 CLR 643 at [4]; Mancini…
Joe Salvadore Lembo v Pacific Brands Holdings Pty Ltd
[2015] NSWDC 35

….23 and 14.26 Cases Cited: Bellingen Shire Council v Colavon Pty Limited [2012] NSWCA 34 Blatch v Archer (1774) 1 Cowper 63; (1774) 98 ER 769 Brierley v Ellis (2014) 67 MVR 282 Deatons Pty Limited v Flew (1949) 79 CLR 370 Hampton Court Limited v Crooks (1957) 97 CLR 367 Leotta v Public Transport Commission (NSW) (1976) 9…
Howley v Principal Healthcare Finance Pty Ltd
[2014] NSWCA 447 Para 1

…that the evidence was hearsay did not permit "the primary judge to do other than address it on its terms as reasonably understood": Brierley v Ellis [2014] NSWCA 230; (2014) 67 MVR 282 (at [28]) per Meagher JA (Basten and Gleeson JJA agreeing).…
Pattie v Panetta
[2014] NSWDC 263

…edings non pro tunc - costs in the cause Legislation Cited: Motor Accidents Compensation Act 1999, ss 66, 72, 73, 109 Cases Cited: Brierley v Ellis [2014] NSWCA 230 Eades v Gunestepe [2012] NSWCA 204 Smith v Grant [2006] NSWCA 244; 67 NSWLR 735 Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 Category: Procedural and…

View all 17 citing cases →

Cases cited in this decision · 7 of 7 shown

Lyu v Jeon
[2012] NSWCA 446 Para 1

…v Black [2003] NSWCA 45; 56 NSWLR 425 at [46], [94], [100]; Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 at [96]-[97], [101]-[102]; and Lyu v Jeon [2012] NSWCA 446 at [21]-[23].…
Walker v Howard
[2009] NSWCA 408 Para 1

…8 at [42]; Russo v Aiello [2003] HCA 53; 215 CLR 643 at [7], [73]; Buller v Black [2003] NSWCA 45; 56 NSWLR 425 at [46], [94], [100]; Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 at [96]-[97], [101]-[102]; and Lyu v Jeon [2012] NSWCA 446 at [21]-[23].…
Russo v Aiello
[2003] HCA 53 Para 1

…delay and his or her doing so would have been justified in the circumstances: see Diaz v Truong [2002] NSWCA 265; 37 MVR 158 at [42]; Russo v Aiello [2003] HCA 53; 215 CLR 643 at [7], [73]; Buller v Black [2003] NSWCA 45; 56 NSWLR 425 at [46], [94], [100]; Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 at [96]-…
Buller v Black
[2003] NSWCA 45 Para 1

…in the circumstances: see Diaz v Truong [2002] NSWCA 265; 37 MVR 158 at [42]; Russo v Aiello [2003] HCA 53; 215 CLR 643 at [7], [73]; Buller v Black [2003] NSWCA 45; 56 NSWLR 425 at [46], [94], [100]; Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 at [96]-[97], [101]-[102]; and Lyu v Jeon [2012] NSWCA 446 at [21]…
Diaz v Truong
[2002] NSWCA 265 Para 1

…the applicant's position would have experienced that delay and his or her doing so would have been justified in the circumstances: see Diaz v Truong [2002] NSWCA 265; 37 MVR 158 at [42]; Russo v Aiello [2003] HCA 53; 215 CLR 643 at [7], [73]; Buller v Black [2003] NSWCA 45; 56 NSWLR 425 at [46], [94], [100]; Walke…
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd
[1979] HCA 2 Para 1

…e to be used and relied upon "to prove the facts stated" in them: per Gibbs J in Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1979] HCA 2; 143 CLR 134 at 153. To the extent that the primary judge's reasons are to be understood as saying otherwise (White 79R, 80G), or that it might have…
Metropolitan Railway Co v Jackson
(1877) 3 App Cas 193 Para 1

…ion which then arose concerned the weight which that evidence should be given. That also is a question of fact: see Metropolitan Railway Co v Jackson (1877) 3 App Cas 193. Whereas the question whether evidence is capable of justifying a particular conclusion is a question of law, if there is such evidence it is for the…

Legislation cited in this decision · 1

Motor Accidents Compensation Act 1999 (NSW)
3, 33, 72, 73 5 mentions (from Para 1)

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