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Dagg v Davis

Dagg v Davis

Case [2013] NSWCA 203 28 June 2013

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dagg v Davis [2013] NSWCA 203
Hearing dates: 28 June 2013
Decision date: 28 June 2013
Before: Barrett JA at [1]
Ward JA at [2]
Sackville AJA at [41]
Decision:
Application for leave to appeal dismissed with costs.
[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: PROCEDURE - appeal from an interlocutory decision on practice and procedure - no substantial issue of principle - whether substantial injustice by reason of any prejudice as a result of delay in commencing proceedings if leave not granted
Legislation Cited: Civil Liability Act 2002
Motor Accidents Compensation Act 1999
Road Transport (Drivers Licensing) Regulations 2008
Road Transport (Safety and Traffic Management) Act 1999
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401
Figliuzzi v Younan [2005] NSWCA 290
Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564
Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366
Niemann v Electronic Industries Ltd [1978] VR 431
Nominal Defendant v Harris [2011] NSWCA 70
Salido v Nominal Defendant (1993) 32 NSWLR 524
The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 286
Thornton v Sweeney [2011] NSWCA 244
Zelden Sewell Henamast Pty Ltd [2011] NSWCA 56
Category: Interlocutory applications
Parties: Samuel Dagg (First Applicant)
Tracey Dagg (Second Applicant)
Peter Francis Davis (Respondent)
Representation: Counsel:
P Cummings (Applicants)
S Norton SC with S Dixon (Respondent)
Solicitors:
Moray & Agnew (Applicants)
O'Brien & O'Brien (Respondent)

File Number(s): CA 2012/222836
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-06-29 00:00:00

Before:

Olsson DCJ

File Number(s):

DC 2012/067448

Judgment

BARRETT JA: My reasons for joining in the orders of 28 June 2013 correspond with those of Ward JA.

WARD JA: Before this Court on 28 June 2013 was an application for leave to appeal from a decision by Olsson DCJ on 29 June 2012 extending the time for the commencement of proceedings by the respondent (Mr Davis) against the applicants (Mr Samuel Dagg and his mother, Mrs Tracey Dagg) for damages for alleged breach of a duty of care arising out of a motor vehicle accident. Leave for the filing of the respondent's Statement of Claim out of time was…

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 Dagg v Davis

Details

AGLC: Dagg v Davis [2013] NSWCA 203
Case: [2013] NSWCA 203
Decision Date: 28 June 2013

CaseChat Overview and Summary

The appeal concerned an application for leave to appeal an interlocutory decision regarding practice and procedure. The parties involved were Dagg (appellant) and Davis (respondent). The core of the dispute revolved around whether leave to appeal should be granted, particularly in light of potential prejudice arising from delay in commencing proceedings if such leave were refused.

The central legal issue before the court was whether there was a substantial issue of principle involved in the interlocutory decision, or alternatively, whether substantial injustice would be occasioned by reason of any prejudice resulting from delay in commencing proceedings if leave to appeal were not granted.

The court determined that there was no substantial issue of principle arising from the interlocutory decision. Furthermore, the court found that no substantial injustice would be occasioned by reason of any prejudice as a result of delay in commencing proceedings if leave were not granted. Consequently, the application for leave to appeal was dismissed.

The application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application for leave to appeal dismissed with costs.

[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

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.

Citations

AGLC Citation

Dagg v Davis [2013] NSWCA 203

Most Recent Citation

Salvatore La Malfa v Arnotts Biscuits Ltd [2016] NSWDC 104

Cases citing this decision · 3 of 3 shown

Australian Securities and Investments Commission v Schlaepfer
[2017] NSWCA 247

…Act 1969 (NSW), ss 14B, 56A, 56D Cases Cited: Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176 Dagg v Davis [2013] NSWCA 203; (2013) 64 MVR 240 Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 222 Rayney v Weste…
Salvatore La Malfa v Arnotts Biscuits Ltd
[2016] NSWDC 104

…o allow an appellate review, such as where there is an error of principle which, if uncorrected, will result in substantial injustice: Dagg v Davis [2013] NSWCA 203; (2013) 64 MVR 240 (at [13]) per Ward JA (Barrett JA and Sackville AJA agreeing). 44 Section 151D(2) does not spell out specific criteria to be taken i…
Howley v Principal Healthcare Finance Pty Ltd
[2014] NSWCA 447 Para 1

…to allow an appellate review, such as where there is an error of principle which, if uncorrected, will result in substantial injustice: Dagg v Davis [2013] NSWCA 203; (2013) 64 MVR 240 (at [13]) per Ward JA (Barrett JA and Sackville AJA agreeing).…

View all 3 citing cases →

Cases cited in this decision · 11 of 11 shown

The Age Company Ltd v Liu
[2013] NSWCA 26 Para 1

…Moreover, in The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 286, Bathurst CJ said (at [13]) that:…
Jaycar Pty Ltd v Lombardo
[2011] NSWCA 284 Para 1

…Society of Australia Ltd [1969] VR 401). Where there is no question of principle, leave to appeal will usually be refused ( Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; Zelden Sewell Henamast Pty Ltd [2011] NSWCA 56).…
Thornton v Sweeney
[2011] NSWCA 244 Para 1

…For Mr Davis, reliance is placed on what was said in Thornton v Sweeney [2011] NSWCA 244 as to the general principles of duty of care owed to a learner driver by a voluntary supervisor (and to Regulation 16 of the Road Transport (Drivers Licensing) Regulations 2008 (NSW)) for the proposition that there is an arguab…
Zelden v Sewell; Henamast Pty Ltd v Sewell
[2011] NSWCA 56 Para 1

…ere is no question of principle, leave to appeal will usually be refused ( Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; Zelden Sewell Henamast Pty Ltd [2011] NSWCA 56).…
Nominal Defendant v Harris
[2011] NSWCA 70 Para 1

…r (1996) 186 CLR 541 at [554] - [555] and by Toohey and Gummow JJ in that case at [548] - [549]. Reference is also made to Nominal Defendant v Harris [2011] NSWCA 70 at [58].…
Figliuzzi v Yonan
[2005] NSWCA 290 Para 1

…Mr Cummings, Counsel appearing for the applicants, refers to Figliuzzi v Younan [2005] NSWCA 290 in aid of the applicants' submission that there was not a satisfactory explanation for the delay. There, however, the claimant had simply assumed that there was no claim. Here, Mr Davis' father had sought legal advice a…
Johnson Tiles Pty Ltd v Esso Australia Ltd
[2001] FCA 458 Para 1

…8 CLR 170). Nevertheless, it has been recognised that leave should be granted only where there are substantial reasons to allow an appellate review ( Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564), such as where there is an error of principle which, if uncorrected, will result in substantial injustice ( Minogue v Williams (2000) 60…
Holt v Wynter
[2000] NSWCA 143 Para 1

…Her Honour referred to Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 on the question of prejudice to the applicants. There, Sheller JA noted that there was no presumption that an application that was out of time would necessarily cause prejudice. The ultimate question is whether the chance of a fair trial was…
Minogue v Williams
[2000] FCA 125

…143; (2000) 49 NSWLR 128 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366 Niemann v Electronic Industries Ltd [1978] VR 431 Nominal Defendant v Harris [2011] NSWCA 70 Salido v Nominal Defendant (1993) 32…
Brisbane South Regional Health Authority v Taylor
[1996] HCA 25

…Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401 Figliuzzi v Younan [2005] NSWCA 290 Holt v Wyn…
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc
[1981] HCA 39 Para 1

…no exhaustive or rigid rules of practice or criteria governing the grant of leave to appeal ( Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170). Nevertheless, it has been recognised that leave should be granted only where there are substantial reasons to allow an appellate review ( Johnson T…

Legislation cited in this decision · 4

Civil Liability Act 2002 (TAS)
1 mention (from Para 1)
Motor Accidents Act 1988 (NSW)
1 mention (from Para 1)
Motor Accidents Compensation Act 1999 (NSW)
1 mention (from Para 1)
Road Transport (Safety and Traffic Management) Act 1999 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	Dagg v Davis [2013] NSWCA 203
Hearing dates:	28 June 2013
Decision date:	28 June 2013
Before:	Barrett JA at [1] Ward JA at [2] Sackville AJA at [41]
Decision:	Application for leave to appeal dismissed with costs. [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:	PROCEDURE - appeal from an interlocutory decision on practice and procedure - no substantial issue of principle - whether substantial injustice by reason of any prejudice as a result of delay in commencing proceedings if leave not granted
Legislation Cited:	Civil Liability Act 2002 Motor Accidents Compensation Act 1999 Road Transport (Drivers Licensing) Regulations 2008 Road Transport (Safety and Traffic Management) Act 1999
Cases Cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401 Figliuzzi v Younan [2005] NSWCA 290 Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366 Niemann v Electronic Industries Ltd [1978] VR 431 Nominal Defendant v Harris [2011] NSWCA 70 Salido v Nominal Defendant (1993) 32 NSWLR 524 The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 286 Thornton v Sweeney [2011] NSWCA 244 Zelden Sewell Henamast Pty Ltd [2011] NSWCA 56
Category:	Interlocutory applications
Parties:	Samuel Dagg (First Applicant) Tracey Dagg (Second Applicant) Peter Francis Davis (Respondent)
Representation:	Counsel: P Cummings (Applicants) S Norton SC with S Dixon (Respondent) Solicitors: Moray & Agnew (Applicants) O'Brien & O'Brien (Respondent)
File Number(s):	CA 2012/222836
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2012-06-29 00:00:00 Before: Olsson DCJ File Number(s): DC 2012/067448