Brierley v Ellis

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.