Capewell v Garrod

[1999] NSWCA 285

CITATION:	Capewell v Garrod [1999] NSWCA 285
FILE NUMBER(S):	CA 40195/99
HEARING DATE(S):	05/08/99
JUDGMENT DATE:	5 August 1999
PARTIES :	Jeanette Ann Capewell v Christopher Stanley Garrod
JUDGMENT OF:	Meagher JA at 12; Sheller JA at 13; Fitzgerald JA at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	7976/98
LOWER COURT JUDICIAL OFFICER:	Goldring DCJ

COUNSEL:	C R Hoeben SC/A Stone (Appellant) P Strasser/K Hawes (Respondent)
SOLICITORS:	Adelsteins (Appellant) Milne Berry (Respondent)
CATCHWORDS:	Motor vehicle accident; ss 48 and 82 of Motor Accidents Act 1988; dilatoriness; action commenced out of time; no point of principle.
DECISION:	Application dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40195/99
DC 7976/98

MEAGHER JA
SHELLER JA
FITZGERALD JA

Thursday, 5 August 1999

Jeannette Ann CAPEWELL v Christopher Stanley GARROD

JUDGMENT

1   FITZGERALD JA: On 15 February this year, Goldring DCJ dismissed an application by the claimant for an order that the statement of claim in the District Court action commenced by the opponent against the claimant on 30 October 1998 “be struck out for breaches of Section 48 of the Motor Accidents Act”. 2 On 24 March 1999, the claimant filed a summons in this Court seeking orders extending the time for filing her summons to 30 March 1999, granting her leave to appeal from the order made by Goldring DCJ on 11 February, allowing the appeal, striking out the opponent’s statement of claim and for costs. 3 By his action, the opponent claims damages for personal injuries allegedly suffered in a motor vehicle accident on 15 December 1989. In about mid-1998, he applied to the District Court for leave to commence the action pursuant to s 52 of the Motor Accidents Act 1988. On 24 September 1998 Delaney DCJ granted the opponent leave to commence an action on or before 30 October 1998, and, as previously stated, he did so on that day. 4 The claimant was represented at the proceeding before Delaney DCJ, and made no suggestion at that time that particulars were required prior to the commencement of the action pursuant to s 48 of the Motor Accidents Act. Had that issue been raised and debated, Delaney DCJ might have allowed the opponent further time within which to commence an action, so as to enable or require him to provide the particulars prior to doing so. 5   The request for particulars was made by a letter from the claimant’s solicitors to the opponent’s solicitors on September 25 1998, the day after Delaney DCJ gave the opponent leave to commence his action by 30 October 1998. So far is presently material, the request for particulars sought copies of the opponent’s taxation returns, group certificates and notices of assessment from 30 June 1986 to the date of the request, “full details of all employment from the date of the accident to date, including full details of names and addresses of employers, position held, remuneration received and hours worked”, and “full details of all applications for employment made … from the date of the accident to date”. 6   The opponent did not offer Goldring DCJ any explanation for his failure to provide the material and information requested prior to commencing the action. Some of the information should have been simple to collate, although not everyone would have readily available copies of taxation returns, group certificates and notices of assessment for the past 13 years. 7   The claimant has informed us in the course of argument this morning that that is the position in the case of the opponent, as the opponent subsequently informed the claimant, and the claimant has apparently accepted that position. 8   It is ironic that the claimant seeks an order peremptorily dismissing the opponent’s action for his dilatoriness when the claimant’s proceeding in this Court was commenced out of time. The principal reason why the claimant did not apply for leave to appeal within time was that the employee of her insurer who gave the instructions to apply for leave to appeal did so belatedly “because … she had been extremely busy with other pressing matters and had overlooked the deadline for providing instructions …”. 9   Despite the claimant’s attempt to find some issue of principle in this proceeding, Goldring DCJ merely exercised a discretion adverse to the appellant, which has had the effect that the opponent’s action can go on. The claimant could have immediately obtained the material and information she requested so that she could, if considered appropriate, have attempted to compromise the litigation or defend it vigorously immediately the action was commenced. Indeed, the claimant is already in possession of the material and information requested. 10   The proceeding in this Court is admittedly futile in the sense that, if leave to appeal were granted and the appeal allowed, the claimant accepts that it is probable that there would be another application by the opponent for leave to commence an action out of time, which would probably be successful. 11   In those circumstances, the application for an extension of time for filing a summons for leave to appeal should be refused with costs. 12   MEAGHER: I agree. 13   SHELLER JA: I also agree. 14   MEAGHER: The order of the Court is therefore the order proposed by Fitzgerald JA.