Edwards v Devine - [2011] NSWDC 2

District Court

New South Wales

Medium Neutral Citation: Edwards v Devine [2011] NSWDC 2
Hearing dates: 20 January 2011
Decision date: 27 January 2011
Before: Levy SC DCJ
Decision:
1. The time for the plaintiff to commence the proposed proceedings is extended until 18 February 2011;
2. The defendant is to pay the plaintiff's costs of the summons;
3. The exhibits may be returned;
4. Liberty to apply on 7 days notice if further orders are required.

Catchwords:
LIMITATION OF ACTIONS - application for leave to proceed under s 109 of Motor Accidents Act 1999 - whether full and satisfactory explanation provided for delay - whether delay has caused defendant significant prejudice that would preclude a fair trial
COSTS - appropriate order where defendant exercised the choice to contest the plaintiff's compelling claim for entitlement to a grant of leave to proceed
Legislation Cited: Civil Procedure Act 2005, s 98
Motor Accidents Compensation Act 1999, s 109(1), s 66(2)
Uniform Civil Procedure Rules 2005, r 42.1
Cases Cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373
Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643
Salido v Nominal Defendant (1993) 32 NSWLR 524
Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735
State of NSW v Stanley [2007] NSWCA 330
Walker v Howard [2009] NSWCA 408
Category: Principal judgment
Parties: Kelly Leanne Edwards (Plaintiff)
Stephen Devine (Defendant)
Representation: Counsel:
Mr P Mooney (Plaintiff)
Mr J Turnbull (Defendant)
Solicitors:
Steve Masselos & Co (Plaintiff)
Dibbs Barker (Defendant)

File Number(s): 2010/346714

Table of Contents

Nature of the case

[1]

Facts

[2] - [10]

Issues for determination

[11] - [13]

Array of evidence on the application

[14] - [23]

Chronology of relevant events

[24] - [49]

Applicable legislation

[50] - [53]

Issue 1 - Whether the explanation was full or satisfactory

[54] - [110]

Complaints concerning the state of particulars

[59] - [71]

Full and satisfactory explanation for delay

[72] - [110]

Issue 2 - Whether significant prejudice arises rendering a fair trial unlikely

[111] - [119]

Issue 3 - The appropriate order for costs

[120] - [129]

Disposition

[130]

Orders

[131]

Judgment

Nature of case

1. By summons filed on 19 October 2010, the plaintiff, Kelly Leanne Edwards, seeks leave pursuant to s 109(1) of the Motor Accidents Compensation Act 1999 [ "MAC Act" ] , to commence proceedings against the defendant, Stephen Devine, in respect of injuries she received in a motor vehicle collision that occurred on 20 June 2005.

Facts

2. At about 2.55pm on Monday 20 June 2005, the plaintiff was a rear seat passenger in a motor…

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 Edwards v Devine

Details

AGLC: Edwards v Devine [2011] NSWDC 2
Case: [2011] NSWDC 2
Decision Date: 27 January 2011

CaseChat Overview and Summary

The parties involved in this case were Edwards, the plaintiff, and Devine, the defendant. The dispute centred on an application for leave to proceed under section 109 of the Motor Accidents Act 1999. The plaintiff sought to bring an action against the defendant beyond the limitation period, and thus required leave to proceed. The case was heard in the Supreme Court of Queensland.

The central legal issues for the court to determine were whether the plaintiff had provided a full and satisfactory explanation for the delay in bringing the proceedings, and whether this delay had caused the defendant significant prejudice that would preclude a fair trial. The court had to assess the plaintiff's explanation for the delay and consider the implications of this delay on the fairness of the trial.

The court found that the plaintiff had provided a satisfactory explanation for the delay, and that the defendant had not demonstrated any significant prejudice resulting from this delay. Consequently, the court granted the plaintiff's application for leave to proceed. The court also ordered that the defendant pay the plaintiff's costs of the summons, reflecting the compelling nature of the plaintiff's claim. The exhibits were to be returned, and the plaintiff was granted liberty to apply for further orders if necessary.

In summary, the court extended the time for the plaintiff to commence the proposed proceedings until 18 February 2011, ordered the defendant to pay the plaintiff's costs of the summons, and allowed the exhibits to be returned. The plaintiff was also granted liberty to apply for further orders on seven days' notice.

Orders

Orders of the court

1. The time for the plaintiff to commence the proposed proceedings is extended until 18 February 2011;

2. The defendant is to pay the plaintiff's costs of the summons;

3. The exhibits may be returned;

4. Liberty to apply on 7 days notice if further orders are required.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Edwards v Devine [2011] NSWDC 2
Hearing dates:	20 January 2011
Decision date:	27 January 2011
Before:	Levy SC DCJ
Decision:	1. The time for the plaintiff to commence the proposed proceedings is extended until 18 February 2011; 2. The defendant is to pay the plaintiff's costs of the summons; 3. The exhibits may be returned; 4. Liberty to apply on 7 days notice if further orders are required.
Catchwords:	LIMITATION OF ACTIONS - application for leave to proceed under s 109 of Motor Accidents Act 1999 - whether full and satisfactory explanation provided for delay - whether delay has caused defendant significant prejudice that would preclude a fair trial COSTS - appropriate order where defendant exercised the choice to contest the plaintiff's compelling claim for entitlement to a grant of leave to proceed
Legislation Cited:	Civil Procedure Act 2005, s 98 Motor Accidents Compensation Act 1999, s 109(1), s 66(2) Uniform Civil Procedure Rules 2005, r 42.1
Cases Cited:	Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 Salido v Nominal Defendant (1993) 32 NSWLR 524 Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735 State of NSW v Stanley [2007] NSWCA 330 Walker v Howard [2009] NSWCA 408
Category:	Principal judgment
Parties:	Kelly Leanne Edwards (Plaintiff) Stephen Devine (Defendant)
Representation:	Counsel: Mr P Mooney (Plaintiff) Mr J Turnbull (Defendant) Solicitors: Steve Masselos & Co (Plaintiff) Dibbs Barker (Defendant)
File Number(s):	2010/346714

Nature of the case	[1]
Facts	[2] - [10]
Issues for determination	[11] - [13]
Array of evidence on the application	[14] - [23]
Chronology of relevant events	[24] - [49]
Applicable legislation	[50] - [53]
Issue 1 - Whether the explanation was full or satisfactory	[54] - [110]
Complaints concerning the state of particulars	[59] - [71]
Full and satisfactory explanation for delay	[72] - [110]
Issue 2 - Whether significant prejudice arises rendering a fair trial unlikely	[111] - [119]
Issue 3 - The appropriate order for costs	[120] - [129]
Disposition	[130]
Orders	[131]