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Eades v Gunestepe

Eades v Gunestepe

Case [2012] NSWCA 204 4 July 2012

Appeal

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Statutory Construction

Statutory Interpretation

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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 531
Texts 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 - Respondent
Representation: 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

Date of…

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 Eades v Gunestepe

Details

AGLC: Eades v Gunestepe [2012] NSWCA 204
Case: [2012] NSWCA 204
Decision Date: 04 July 2012

CaseChat Overview and Summary

This matter concerned an appeal to the Court of Appeal of New South Wales from a decision of a lower court regarding an application for leave to commence proceedings out of time under section 109 of the *Motor Accidents Compensation Act 1999* (NSW). The applicant, Eades, sought to bring a claim against the respondent, Gunestepe, for damages arising from a motor accident.

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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Citations

AGLC Citation

Eades v Gunestepe [2012] NSWCA 204

Most Recent Citation

Phoebe Orilla v Brian Chown [2013] NSWDC 226

Cases citing this decision · 19 of 19 shown

Dahdah v Witte
[2023] NSWCA 304 Para 70

…v Tupaea (2003) 58 NSWLR 675; [2003] NSWCA 332 at [26]-[27]; Sinclair v Darwich (2010) 77 NSWLR 166; [2010] NSWCA 195 at [36]; Eades v Gunestepe [2012] NSWCA 204; (2012) 61 MVR 328 at [10]; Dijakovic v Perez at [109]; Rahman v Al-Maharmeh at [47]).…
Ibrahim v Frity
[2023] NSWDC 169 Para 20

…In Eades v Gunestepe [2012] NSWCA 204 Basten JA said at [47], referring to Harika v Tupaea [2003] NSWCA 332; 58 NSWLR 675:…
Marshall v O'Flaherty
[2022] NSWDC 502 Para 32

…loyment, [25] must be added. In the absence of any challenge to the matters, I am satisfied that the threshold is satisfied. 22. Cf Eades v Gunestepe [2012] NSWCA 204. 23. See affidavit, Thomas Goudkamp, 8 March 2022, Annexure C at p 18.8, see also p 148. 24. Ibid, Annexure C at p 19. 25. See affidavit, Thomas Goud…
Chase v Ausgrid Management Pty Ltd
[2022] NSWDC 337 Para 131

…The onus is on a claimant to provide a full and satisfactory explanation for the delay incurred in bringing a claim: Eades v Gunestepe [2012] NSWCA 204, at [52].…
Rahman v Al-Maharmeh
[2021] NSWCA 31

…MVR 334; [2015] NSWCA 174 Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374 Eades v Gunestepe (2012) 61 MVR 328; [2012] NSWCA 204 Gordon v Truong (2014) 66 MVR 241; [2014] NSWCA 97 Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36 Harika v Tupaea (2003) 58 NSWLR 675; [2003] NSWCA 332 House v The King (1…
Grace v Dennis
[2019] NSWDC 421 Para 16

…f satisfying the Court that the conditions for the grant of leave as imposed by s 109(3) of the MAC Act , rests with the plaintiff: Eades v Gunestepe [2012] NSWCA 204, at [52].…
Mohammed Buhora by his Tutor Sheilana Buhora v Iftyaz Ali Khan; Ziabudeen Buhora v Iftyaz Ali Khan; Sheilana Buhora v Iftyaz Ali Khan
[2019] NSWDC 517 Para 76

…or “a real prospect” of being awarded damages in excess of the threshold: Sinclair v Darwiche [2010] NSWCA 196 at [36]; Eades v Gunestepe [2012] NSWCA 204 at [10]-[50]. In the Court of Appeal decision in Dijakovic v Perez which I have referred to earlier, it was stated at [120] that the threshold issue is approache…
Zein v Wazen
[2019] NSWDC 392 Para 13

…0, at [20] – [22]. On behalf of the plaintiff it was submitted that decision was distinguishable from the present case because in Eades v Gunestepe [2012] NSWCA 204, the insurer’s denial of liability was deemed to have occurred because no denial or admission was made by the insurer within the statutory period. In t…
Linda Joy Crawshaw v Natasha Coxon
[2018] NSWDC 92 Para 37

…That approach was adopted by Hoeben JA (Basten and Tobias JJA agreeing) in Eades v Gunestepe [2012] NSWCA 204. His Honour also adopted the construction applied to the words “likely to be awarded” in Sinclair v Darwich (2010) 77 NSWLR 166 as meaning that there is a “real chance” or a “real prospect” of such an award…
Al-Ebadi v Guo
[2017] NSWDC 107 Para 24

…l prospect " of being awarded an amount of damages in excess of the threshold (see Sinclair v Darwich [2010] NSWCA 195 at [36], Eades v Gunestepe [2012] NSWCA 204 at [10], [50]). It appears to require the Court to assume that the plaintiff will succeed on each head of damage claimed so long as there is evidence to…
Amor-Smith v Ching
[2016] NSWDC 89 Para 75

…n an application for extension of time, a consideration of matters relating to contributory negligence is relevant: Reeves at [16]; Eades v Gunestepe [2012] NSWCA 204 (“ Eades ”). The correct approach does not, however, require the judge hearing the application to determine a percentage. In Eades, Hoeben JA defined…
Dijakovic v Perez
[2015] NSWCA 174 Para 7

…nse discussed in House v The King [1936] HCA 40; 55 CLR 499. This is relevant to the standard of appellate review of such findings: Eades v Gunestepe [2012] NSWCA 204; 61 MVR 328 at [2]-[8] (Basten JA) compare at [41]-[43] (Hoeben JA; Tobias AJA agreeing). See also Harika v Tupaea [2003] NSWCA 332; 58 NSWLR 675 at…
Pattie v Panetta
[2014] NSWDC 263 Para 44

…es, and loss in earning capacity is likely to exceed $91,500. Indeed, the test is lower as Mr Ghabar pointed out. Hoeben JA said in Eades v Gunestepe [2012] NSWCA 204 (at [45]) that the test was "whether there was a 'real and not remote chance or possibility'" of the damages reaching or exceeding that amount. I hav…
Kechuol v Bravo
[2014] NSWDC 332 Para 26

…es not mean, as might be supposed, " more likely than not " but has been held to mean a " real chance " or a " real prospect ", see Eades v Gunestepe [2012] NSWCA 204 at [10]. That is not a demanding test.…
Sweetman v Ritter
[2014] NSWDC 110 Para 1

…st $91,500. Likely in this context does not mean " more likely than not " but, rather a " real chance " or a " real prospect ": see Eades v Gunestepe [2012] NSWCA 204 at [10]. The insurer accepted that it was not a demanding test. The insurer also accepted that the test would be satisfied if the plaintiff's present…
Phoebe Orilla v Brian Chown
[2013] NSWDC 226 Para 1

…hat there is a "real chance" or a "real prospect" that the relevant damages threshold will be exceeded. A similar view was taken in Eades v Gunestepe [2012] NSWCA 204. In that case, Hoeben JA at [36] stated that "the simple meaning of the word "likely" in the context of this Act is that there is a "real chance" or…
Studorp Ltd v Robinson
[2012] NSWCA 382

…lc v Dickman [1990] 2 AC 605; 1 ACSR 636 DAO v R [2011] NSWCCA 63; 278 ALR 765 Di Sora v Phillipps (1863) 10 HL Cas 624; 11 ER 1168 Eades v Gunestepe [2012] NSWCA 204 Fairchild v Glenhaven Funeral Services Ltd & Ors [2002] All ER (D) 139; [2003] 1 AC 32 Goliath Portland Cement Co Ltd v Bengtell & Anor [1994] 33 NSW…
New South Wales Crime Commission v Lee
[2012] NSWCA 276 Para 1

…h Court in Warren v Coombes [1979] HCA 9; 142 CLR 531; see also State of New South Wales v Plaintiff A [2012] NSWCA 248 at [19] and Eades v Gunestepe [2012] NSWCA 204 at [2]-[7]. However, it is appropriate to deal with the issues raised on the basis on which they were addressed by the parties, without reaching a vi…
State of New South Wales v Plaintiff A
[2012] NSWCA 248 Para 2

…v R [1936] HCA 40; 55 CLR 499. Basten JA, at [22], has referred to the reasons of Callinan J in Batistatos and his own decision in Eades v Gunestepe [2012] NSWCA 204, raising the question whether House v R principles apply to an appeal against a discretionary determination in a civil case, or whether those princip…

View all 19 citing cases →

Cases cited in this decision · 18 of 18 shown

Sinclair v Darwich
[2010] NSWCA 195

…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 63…
Baker v Salagiannis
[2009] NSWCA 385

…" in s 109(3)(b) of the MAC Act has not yet received authoritative determination. It was debated in this Court but not decided in Baker v Salagiannis [2009] NSWCA 385.…
Turkmani v Visvalingam
[2009] NSWCA 211 Para 1

…d discretion by his Honour. Apart from the discretionary nature of an assessment of contributory negligence generally ( Turkmani v Visvalingram & Ors [2009] NSWCA 211; 53 MVR 176)…
Costa v The Public Trustee of NSW
[2008] NSWCA 223 Para 1

…timately, it may not be possible for an intermediate appellate court to reconcile these statements of principle: cf Costa v The Public Trustee of NSW [2008] NSWCA 223. However, it is clear that the principle in House v The King would involve an implied restraint on the powers of this Court which are conspicuously a…
Batistatos v Roads and Traffic Authority of New South Wales
[2006] HCA 27 Para 1

…Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 involved a defence to civil proceedings based on the allegation that the pursuit of a civil claim long after the events in question involved an abuse of process. As Callinan J noted at [223], s 75A "makes no distinction betwee…
Rita Harika v Stanley Tupaea
[2003] NSWCA 332

…36] 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;…
R v Carroll
[2002] HCA 55 Para 1

…ey adopted a passage from the judgment of Gaudron and Gummow JJ in criminal proceedings involving an alleged abuse of process. In The Queen v Carroll [2002] HCA 55; 213 CLR 635, the High Court considered whether an indictment for perjury, based on the testimony of the accused at an earlier trial for murder, in w…
Reeves v Reeves
[2002] NSWCA 181 Para 1

…The parties agreed that in accordance with the decision in this Court in Reeves v Reeves [2002] NSWCA 181; 36 MVR 488, it was necessary for his Honour to decide whether contributory negligence might apply to the respondent's claim. If it did the parties submitted that his Honour should make an assessment of contrib…
Smith v Western Australia
[2001] FCA 19

…raining and Youth Affairs v Barrett (1998) 82 FCR 524, Dwyer v Movements International Movers (WA) Pty Ltd [2000] WASCA 75, Smith v Western Australia (2001) 108 FCR 442). That is the approach to be adopted here."…
Dwyer v Movements International Movers (WA) Pty Ltd
[2000] WASCA 75

…ary, Department of Employment, Education, Training and Youth Affairs v Barrett (1998) 82 FCR 524, Dwyer v Movements International Movers (WA) Pty Ltd [2000] WASCA 75, Smith v Western Australia (2001) 108 FCR 442). That is the approach to be adopted here."…
Owners of “Shin Kobe Maru” v Empire Shipping Co Inc
[1994] HCA 54 Para 1

…implications or imposing limitations which are not found in the express words": The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 at 421.…
Jungarrayi v Olney
[1992] FCA 73

…bability greater than 50% ( Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 346-7, Jungarrayi v Olney (1992) 34 FLR 496). The present case involves an interlocutory application in which summary dismissal of a presumptively valid claim is sought. The court is involved i…
Malec v JC Hutton Pty Ltd
[1990] HCA 20 Para 1

…t is capable of some clarification. In this context a real chance is not anything above the 1% regarded as "speculative" in Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 at 643. The context in which the statutory language is to be construed is important. As noted by Dawson J in Chan v Minister for Immigra…
Chan v Minister for Immigration and ethnic Affairs
[1989] HCA 62 Para 1

…e context in which the statutory language is to be construed is important. As noted by Dawson J in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 at 398, "[w]hilst alternative verbal formulations of the correct test may be useful in identifying shades of meaning, none can ever offe…
Warren v Coombes
[1979] HCA 9 Para 1

…f s 75A. In the absence of clear statements to the contrary in the High Court, it would be inconsistent with both Shin Kobe Maru and Warren v Coombes [1979] HCA 9; 142 CLR 531 for this Court to treat every appeal against a decision underlying which was an evaluative judgment as restricted to House v The King er…
House v R
[1936] HCA 40

…Buller at 434 [39], 442 [96], Russo at [27]). The question whether this is truly a discretionary decision in the sense discussed in House v The King (1936) 55 CLR 499 can be resolved when and if it becomes critical. Assuming that the appellant must satisfy the House v The King criteria, she has done so in the prese…
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union
[1979] FCA 132

…not always require proof or persuasion to a probability greater than 50% ( Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 346-7, Jungarrayi v Olney (1992) 34 FLR 496). The present case involves an interlocutory application in which summary dismissal of a presumptively…
House v The King
63 WN 176

…planation issue ( Buller at 434 [39], 442 [96], Russo at [27]). The question whether this is truly a discretionary decision in the sense discussed in House v The King (1936) 55 CLR 499 can be resolved when and if it becomes critical. Assuming that the appellant must satisfy the House v The King criteria, she has done so i…

Legislation cited in this decision · 3

Motor Accidents Compensation Act 1999 (NSW)
109 2 mentions (from Para 1)
Motor Accidents Act 1988 (NSW)
1 mention (from Para 1)
Supreme Court Act 1970 (NSW)
1 mention (from Para 1)

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 531
Texts 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 - Respondent
Representation:	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	Date of…