1.Application for leave to appeal purportedly on behalf of Terry Deveigne dismissed as incompetent. 2. Join NRMA as the appellant. 3. Extend the time to seek leave to appeal. 4. Leave to appeal granted. 5. Appellant to file Notice of Appeal within seven (7) days of this order. 6. Appeal dismissed. 7. Appellant to pay the respondent’s costs of the appeal.
CATCHWORDS:
PROCEDURE — Commencement of proceedings against deceased defendant — costs orders obtained on applications made in name of deceased defendant —whether proceedings and orders a nullity or irregularities — joinder of statutory insurer - INFERIOR COURTS — District Court — status of orders made without power or jurisdiction - STATUTES — Motor Accidents Act 1988 — ss 17, 25, 47, 53, 54, 66A — District Court Act 1973 s 159 — District Court Rules Pt 7 r 8, Pt 24C rr 3, and 8, Pt 31 r 12A
[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.
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AGLC
Deveigne v Askar [2007] NSWCA 45
Case
[2007] NSWCA 45
Decision Date
CaseChat Overview and Summary
The proceedings concerned an appeal from an order of the District Court of New South Wales. The appellant, NRMA Insurance (NRMA), sought to appeal an earlier decision of the District Court which had dismissed an application made in the name of Terry Deveigne, a deceased person, seeking to set aside costs orders made against him. The dispute arose from proceedings initiated against Mr. Deveigne after his death, and subsequent applications made in his name.
The primary legal issues before the Court of Appeal were whether the District Court had jurisdiction to make orders in proceedings commenced against a deceased person, and whether the costs orders made against Mr. Deveigne were a nullity or mere irregularities. A further issue was whether NRMA, as the statutory insurer of Mr. Deveigne, should be joined as a party to the appeal and whether time should be extended for NRMA to seek leave to appeal.
The Court of Appeal held that proceedings commenced against a deceased person are a nullity. Consequently, any orders made in such proceedings, including the costs orders, were also a nullity. The Court reasoned that the District Court Act 1973 and the District Court Rules did not confer power to make orders against a deceased person in the absence of a proper substitution or joinder of a legal personal representative. The Court also found that NRMA, as the statutory insurer, had a sufficient interest to be joined as a party and that it was appropriate to extend the time for seeking leave to appeal.
Ultimately, the Court of Appeal dismissed NRMA's appeal, finding that while the original orders were a nullity, the District Court had correctly dismissed the application to set them aside because the application itself was made in the name of a deceased person. NRMA was ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
1.Application for leave to appeal purportedly on behalf of Terry Deveigne dismissed as incompetent. 2. Join NRMA as the appellant. 3. Extend the time to seek leave to appeal. 4. Leave to appeal granted. 5. Appellant to file Notice of Appeal within seven (7) days of this order. 6. Appeal dismissed. 7. Appellant to pay the respondent's costs of the appeal.