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 9PARTIES: 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
Wednesday 10 November 2010BEAZLEY JA
YOUNG JA
HANDLEY AJA
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…
Keep reading for free
Create a free CaseChat account to read Ellis v Reko Pty Limited and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2010] NSWCA 319
- Decision Date
CaseChat Overview and Summary
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.