Ellis v Reko Pty Limited - [2010] NSWCA 319

New South Wales

Court of Appeal

CITATION: Ellis v Reko Pty Limited [2010] NSWCA 319

HEARING DATE(S): 10 November 2010

JUDGMENT OF: Beazley JA at [1][28][35]; Young JA at [2]; Handley AJA at [34]

EX TEMPORE JUDGMENT DATE: 10 November 2010

DECISION: The summons for leave to appeal is dismissed with costs.
[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 of actions- Motor Accidents Compensation Act 1999, s 109(3)- action not commenced within 3 years- necessary for leave to be obtained which may only be granted upon a full and satisfactory explanation for delay- motor vehicle accident with a forklift at work- claimant filled in forms for workers compensation and says he did not realise that more needed to be done for a motor vehicle claim- claimant of limited education and manual worker- held: that District Court correct in ruling that more details needed and hence not a full explanation of delay.

LEGISLATION CITED: Motor Accidents Compensation Act 1999, ss 66(2), 109

CATEGORY: Principal judgment

CASES CITED: Figliuzzi v Yonan [2005] NSWCA 290; 44 MVR 515
Walker v Howard [2009] NSWCA 408; 55 MVR 9

PARTIES: Christopher Ellis (Applicant)
Reko Pty Limited (Respondent)

FILE NUMBER(S): CA 2010/61597

COUNSEL: R Goodridge (Applicant)
L King SC and P A Rickard (Respondent)

SOLICITORS: Firths - The Compensation Lawyers (Applicant)
Goldbergs (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2784/09

LOWER COURT JUDICIAL OFFICER: Knox DCJ

LOWER COURT DATE OF DECISION: 4 November 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Ellis v Reko Pty Limited [2009] NSWDC 288

2010/61597

BEAZLEY JA
YOUNG JA
HANDLEY AJA
Wednesday 10 November 2010

ELLIS v REKO PTY LTD

Judgment

1 BEAZLEY JA: I will ask Young JA to give the first judgment.

2 YOUNG JA: This is a concurrent hearing by summons for leave to appeal (though that summons was filed out of time) and, if leave is given, for the hearing of the appeal.

3 The subject matter of the appeal is a decision of Knox DCJ who dismissed a motion brought by the applicant for leave to commence proceedings against the defendant for damages for personal injuries suffered as a result of a motor vehicle accident that happened on 3 March 2003.

4 Essentially, the applicant says - and there is no reason to doubt any of this - that on the day in question he was employed by the defendant at its Lisarow warehouse. He was driving a forklift in the warehouse when his left arm was wedged by the steering wheel of the forklift and he was extensively injured. He filled in the appropriate forms for workers compensation and received…

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.

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Details

Case: [2010] NSWCA 319
Decision Date: 10 November 2010

CaseChat Overview and Summary

The appeal concerned a dispute between the claimant, Ellis, and the respondent, Reko Pty Limited, arising from a motor vehicle accident that occurred at work involving a forklift. The primary issue before the Court of Appeal was whether the District Court had erred in refusing to grant leave to commence proceedings outside the statutory limitation period.

The central legal question before the Court of Appeal was whether the District Court had correctly determined that the claimant had not provided a "full and satisfactory explanation" for the delay in commencing his action, as required by section 109(3) of the *Motor Accidents Compensation Act 1999* (NSW). This section mandates that leave to commence proceedings after the expiry of the three-year limitation period may only be granted upon such an explanation.

The Court of Appeal upheld the District Court's decision, finding that the claimant's explanation for the delay was insufficient. While acknowledging the claimant's limited education and status as a manual worker, and his assertion that he believed completing workers' compensation forms was all that was required, the court concluded that these factors did not constitute a "full and satisfactory explanation" for failing to investigate or initiate a motor vehicle accident claim within the prescribed time. The court reasoned that more detail and a clearer understanding of the distinct requirements for a motor vehicle claim were necessary to satisfy the statutory threshold for granting leave.

Consequently, the summons for leave to appeal was dismissed with costs.

Orders

Orders of the court

The summons for leave to appeal is dismissed with costs.

[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

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.

CITATION:	Ellis v Reko Pty Limited [2010] NSWCA 319
HEARING DATE(S):	10 November 2010
JUDGMENT OF:	Beazley JA at [1][28][35]; Young JA at [2]; Handley AJA at [34]
EX TEMPORE JUDGMENT DATE:	10 November 2010
DECISION:	The summons for leave to appeal is dismissed with costs. [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 of actions- Motor Accidents Compensation Act 1999, s 109(3)- action not commenced within 3 years- necessary for leave to be obtained which may only be granted upon a full and satisfactory explanation for delay- motor vehicle accident with a forklift at work- claimant filled in forms for workers compensation and says he did not realise that more needed to be done for a motor vehicle claim- claimant of limited education and manual worker- held: that District Court correct in ruling that more details needed and hence not a full explanation of delay.
LEGISLATION CITED:	Motor Accidents Compensation Act 1999, ss 66(2), 109
CATEGORY:	Principal judgment
CASES CITED:	Figliuzzi v Yonan [2005] NSWCA 290; 44 MVR 515 Walker v Howard [2009] NSWCA 408; 55 MVR 9
PARTIES:	Christopher Ellis (Applicant) Reko Pty Limited (Respondent)
FILE NUMBER(S):	CA 2010/61597
COUNSEL:	R Goodridge (Applicant) L King SC and P A Rickard (Respondent)
SOLICITORS:	Firths - The Compensation Lawyers (Applicant) Goldbergs (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2784/09
LOWER COURT JUDICIAL OFFICER:	Knox DCJ
LOWER COURT DATE OF DECISION:	4 November 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Ellis v Reko Pty Limited [2009] NSWDC 288