Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Eades v Gunestepe [2012] NSWCA 204 Hearing dates: 29 May 2012 Decision date: 04 July 2012 Before: Basten JA; at [1]
Hoeben JA; at [13]
Tobias AJA; at [65]Decision: (1) Leave to appeal is granted.
(2) The appeal is dismissed.
(3) The applicant is to pay the respondent's 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: LIMITATION - motor accident - leave required to commence proceedings out of time under s 109 Motor Accidents Compensation Act 1999 - nature of appeal from lower court decision - whether decision pursuant to s 109 properly described as "discretionary" - monetary threshold requirement for extension of time - need to determine predictively range of contributory negligence - meaning of words "likely to be awarded" in s 109 - which party bears the onus of establishing a range for contributory negligence - whether "real chance" of contributory negligence being assessed at 24 percent or lower - whether monetary threshold under s 109 can include non-economic loss even though an assessment of permanent impairment has not been made by a Medical Assessor. Legislation Cited: Australian Road Rules, 1999, r 57
Motor Accidents Act, 1988, s43A
Motor Accidents Compensation Act 1999 (NSW) s 109, s 131- Supreme Court Act 1970 (NSW).Cases Cited: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256
Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379
Costa v The Public Trustee of NSW [2008] NSWCA 223
House v The King [1936] HCA 40; 55 CLR 499
Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
Reeves v Reeves [2002] NSWCA 181; 36 MVR 488
Rita Harika v Stanley Tupaea [2003] NSWCA 332; 58 NSWLR 675
Sinclair v Darwich [2010] NSWCA 195; 77 NSWLR 166
The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 at 421
The Queen v Carroll [2002] HCA 55; 213 CLR 635
Turkmani v Visvalingram & Ors [2009] NSWCA 211; 53 MVR 176
Warren v Coombes [1979] HCA 9; 142 CLR 531Texts Cited: American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th ed. Category: Principal judgment Parties: Noel Samuel James Eades - Applicant
Kadriye Gunestepe - RespondentRepresentation: Counsel:
Mr RA Cavanagh SC/Mr A Bowen - Applicant
Mr P Webb QC/Mr C Sandrasegra/Ms K Balendra - Respondent
Solicitors:
Lee & Lyons - Applicant
Kheir Lawyers - Respondent
File Number(s): 2010/398385 Decision under appeal
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- Eades v Gunestepe [2012] NSWCA 204
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- [2012] NSWCA 204
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CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the lower court's decision on the application for leave was properly characterised as "discretionary," the meaning of the phrase "likely to be awarded" in section 109, specifically in relation to the monetary threshold for extensions of time, and which party bore the onus of establishing a range for potential contributory negligence. The court also had to consider whether the monetary threshold could encompass non-economic loss even without a formal assessment of permanent impairment by a Medical Assessor, and whether there was a "real chance" of contributory negligence being assessed at 24 percent or lower.
The Court of Appeal determined that the lower court's decision was not purely discretionary in the sense that it was not immune from appellate review. The court clarified that the onus was on the applicant to demonstrate that the monetary threshold was likely to be met, which included establishing a range for contributory negligence. The judges reasoned that the phrase "likely to be awarded" required a predictive assessment of the potential damages, and that non-economic loss could be considered for the threshold even without a formal assessment of permanent impairment. Ultimately, the court found that the applicant had not discharged the onus of demonstrating that the monetary threshold was likely to be met.
Leave to appeal was granted, but the appeal itself was dismissed. The applicant was ordered to pay the respondent's costs.
Orders
Orders of the court
(1) Leave to appeal is granted.
(2) The appeal is dismissed.
(3) The applicant is to pay the respondent's 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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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