Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Dahdah v Witte [2023] NSWCA 304 Hearing dates: 10 August 2023 Decision date: 13 December 2023 Before: White JA at [1];
Mitchelmore JA at [114];
Griffiths AJA at [115]Decision: (1) Grant the applicant leave to appeal.
(2) Direct that within seven days the applicant file a notice of appeal in the terms of the draft notice of appeal at tab 4 of the White Folder.
(3) Dispense with service of the notice of appeal.
(4) Allow the appeal.
(5) Set aside the orders of the court below made on 29 November 2022 dismissing the appellant’s notice of motion dated 25 July 2022 with costs and dismissing the proceedings with costs.
(6) In lieu thereof order that:
(a) the respondent’s notice of motion dated 12 July 2022 be dismissed with costs;
(b) the appellant have leave to commence proceedings 2022/00160083 nunc pro tunc;
(c) the respondent pay the appellant’s costs of the appellant’s notice of motion dated 25 July 2022.
(7) The respondent pay the appellant’s costs of the application for leave to appeal, and the appeal.
(8) Remit the proceedings to the District Court.
Catchwords: TORTS – Motor vehicle accident – Late claims – Requirement for “full and satisfactory explanation” – Where applicant sought leave to institute proceedings under Motor Accidents Compensation Act 1999 (NSW) outside of time prescribed by s 109 – Where primary judge refused leave on basis that applicant had not provided “full and satisfactory explanation” for delay within meaning of ss 66(2) and 109(3)(a) of Motor Accidents Compensation Act – Where applicant delayed in raising symptoms said to have been caused by collision with doctor for some years thereafter – Where insurer accepted explanation for delay in lodging claim – Where applicant briefed son as solicitor on claim after time for instituting claim as of right had lapsed – Where applicant claimed privilege over email instructing son to act – Where neither applicant nor son cross-examined – Whether applicant’s explanation of reliance on respondent’s insurer and ignorance of right to make claim “full and satisfactory” – Whether claim of privilege over correspondence with legal representative inconsistent with obligation to provide “full and satisfactory explanation” – Held that applicant satisfies s 109(3)(a) of Motor Accidents Compensation Act
TORTS – Motor vehicle accident– Late claims – Requirement that “total damages of all kinds likely to be awarded” to claimant if claim should succeed exceeds amount prescribed by s 109(3)(b) of Motor Accidents Compensation Act – Where primary judge made no findings as to damages likely to be awarded to applicant if claim should succeed – Where medical evidence as to nature and extent of applicant’s injuries diverges significantly – Whether Court should resolve matter adversely to applicant on basis of medical reports adduced by respondent – Held that total damages of all kinds likely to be awarded to applicant if claim should succeed exceeds amount prescribed by s 109(3)(b) of Motor Accidents Compensation Act
WORDS…
Continue reading Dahdah v Witte
Sign in free to access the full text
- AGLC
- Dahdah v Witte [2023] NSWCA 304
- Case
- [2023] NSWCA 304
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal were whether the primary judge erred in finding that the applicant had not provided a "full and satisfactory explanation" for the delay in commencing proceedings, and whether the primary judge erred in failing to make findings regarding the likely quantum of damages. Specifically, the court considered whether the applicant's explanation of reliance on the respondent's insurer and ignorance of her right to make a claim constituted a "full and satisfactory explanation," and whether the applicant's claim of privilege over correspondence with her solicitor son was inconsistent with the obligation to provide such an explanation. The court also examined whether it should have resolved the issue of likely damages adversely to the applicant based on the medical reports adduced by the respondent, given the divergence in medical evidence.
The Court of Appeal held that the applicant did satisfy the requirements of section 109(3)(a) of the *Motor Accidents Compensation Act 1999* (NSW). The court found that the applicant's explanation, including her reliance on the insurer and her lack of legal knowledge, was sufficient. Furthermore, the court determined that the applicant satisfied section 109(3)(b) as the total damages likely to be awarded would exceed the prescribed amount, noting that the primary judge had made no findings on this issue and that the medical evidence was significantly divergent.
The Court of Appeal granted leave to appeal, allowed the appeal, and set aside the orders of the court below that dismissed the appellant's notice of motion and the proceedings. In lieu of those orders, the court dismissed the respondent's notice of motion, granted the appellant leave to commence proceedings *nunc pro tunc*, and ordered that the respondent pay the appellant's costs of the notice of motion, the application for leave to appeal, and the appeal. The proceedings were remitted to the District Court.
Orders
Orders of the court
(1) Grant the applicant leave to appeal.
(2) Direct that within seven days the applicant file a notice of appeal in the terms of the draft notice of appeal at tab 4 of the White Folder.
(3) Dispense with service of the notice of appeal.
(4) Allow the appeal.
(5) Set aside the orders of the court below made on 29 November 2022 dismissing the appellant’s notice of motion dated 25 July 2022 with costs and dismissing the proceedings with costs.
(6) In lieu thereof order that:
(a) the respondent’s notice of motion dated 12 July 2022 be dismissed with costs;
(b) the appellant have leave to commence proceedings 2022/00160083 nunc pro tunc;
(c) the respondent pay the appellant’s costs of the appellant’s notice of motion dated 25 July 2022.
(7) The respondent pay the appellant’s costs of the application for leave to appeal, and the appeal.
(8) Remit the proceedings to the District Court.
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.