Reported Decision:
57 NSWLR 636
Court of Appeal
CITATION: Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231 HEARING DATE(S): 12 May 2003 JUDGMENT DATE:
21 August 2003JUDGMENT OF: Meagher JA at 1; Hodgson JA at 2; McColl JA at 8 DECISION: (1) Leave to appeal granted (2) Apellant to file in the registry of the Court within 48 hours a Notice of Appeal in the form of the draft handed to the Court (3) Appeal allowed (4) The judgment of Certoma ADCJ of 12 July 2002 be set aside (5) The respondent's Statement of Claim be dismissed (6) The respondent pay the appellant's costs of the District Court proceedings (7) The respondent pay the appellant's costs of the appeal and the application for leave to appeal. CATCHWORDS: PRACTICE & PROCEDURE - pleadings - respondent injured in the course of employment by the appellant when he fell from a motor vehicle - whether in the circumstances of the accident the proceedings were caught by the Motor Accidents Compensation Act 1999 ("the Act") with the effect that the respondent was precluded from commencing proceedings because he had not complied with ss 70 and 108 of that Act - whether the fact that the respondent's pleading was framed as a breach of duty of care by his employer meant it avoided the operation of the Act - STATUTORY INTERPRETATION - whether the respondent's proceedings constituted a "claim" with respect to a "motor accident" within the meaning of the Act. - D LEGISLATION CITED: Motor Accidents Act 1988 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Road Transport (General) Act 1999 NSW
Workers Compensation Act 1987 (NSW)CASES CITED: Akhrass v Allianz Australia Insurance Ltd [2002] NSWSC 772
Allianz Australia Insurance Limited v GSF Australia Pty Ltd [2003] NSWCA 174
AMP General Insurance v Brett (1999) 27 MVR 492
Balfour Beattie Power Constructions (Australia) Pty Ltd v GIO of NSW (1996) 24 MVR 162
Baker v Rothmans of Pall Mall (Australia) Ltd (1999) 18 NSWCCR 374
Collins v Blantern (1767) 2 Wils 347; (1767) 95 ER 850
Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500
Hill v Bolt (1992) 28 NSWLR 329
Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207
Leo N Dunn & Sons Pty Limited v McPhillamy [2000] NSWCA 343
NRMA Insurance Ltd v NSW Grain Corporation (1995) 22 MVR 317
Pender v Power Coal Pty Limited [2002] NSWSC 925
Peter Warren (Fairfield) Pty Limited v McMartin (1996) 24 MVR 235
Prospect County Council v Foster (2001) 33 MVR 228
Salido v Nominal Defendant (1993) 32 NSWLR 524
Secretary, Department of Treasury and Finance v Kelly (2001) 4 VR 595
Woods v Bate (1986) 7 NSWLR 560
Zurich Australian Insurance Limited v CSR Limited (2001) 52 NSWLR 193PARTIES :
Emad Trolley Pty Limited (Appellant)
Tarik Shigar (Respondent)FILE NUMBER(S): CA 40627/02 COUNSEL: R C Tonner (Appellant)
S P Bliim (Respondent)SOLICITORS: Moray & Agnew (Appellant)
Gerard Malouf & Partners (Respondent)
LOWER COURTJURISDICTION: District Court
Keep reading for free
Create a free CaseChat account to read Emad Trolley Pty Ltd v Shigar 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.
Details
- Case
- [2003] NSWCA 231
- Decision Date
CaseChat Overview and Summary
Emad Trolley Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the District Court that allowed the respondent to commence proceedings for damages for injuries sustained in the course of his employment. The respondent had fallen from a motor vehicle while working for the appellant. The central dispute concerned whether the respondent's claim was governed by the *Motor Accidents Compensation Act 1999* (NSW) (the Act), which would preclude him from proceeding due to non-compliance with specific sections, or if his pleading, framed as a breach of duty of care by his employer, avoided the Act's operation.
The Court of Appeal was required to determine two primary legal issues. Firstly, whether the circumstances of the respondent's accident fell within the ambit of the *Motor Accidents Compensation Act 1999* (NSW), thereby preventing him from commencing proceedings without adhering to sections 70 and 108 of that Act. Secondly, the Court had to consider whether the respondent's pleading, which alleged a breach of duty of care by his employer, was sufficient to circumvent the application of the Act. This involved an interpretation of the Act to ascertain if the respondent's proceedings constituted a "claim" in respect of a "motor accident" as defined by the legislation.
The Court reasoned that the respondent's claim was indeed a claim with respect to a motor accident within the meaning of the Act. The fact that the pleading was framed as a breach of duty of care by the employer did not alter the fundamental nature of the claim, which arose directly from an incident involving a motor vehicle. The Court applied principles of statutory interpretation to conclude that the substance of the claim, rather than its procedural framing, determined its characterisation under the Act. Consequently, the respondent's failure to comply with the pre-requisites of the Act meant his proceedings were invalid.
The Court of Appeal allowed the appeal, granted leave to appeal, set aside the judgment of the District Court, and dismissed the respondent's Statement of Claim. The respondent was ordered to pay the appellant's costs of both the District Court proceedings and the appeal.
The Court of Appeal was required to determine two primary legal issues. Firstly, whether the circumstances of the respondent's accident fell within the ambit of the *Motor Accidents Compensation Act 1999* (NSW), thereby preventing him from commencing proceedings without adhering to sections 70 and 108 of that Act. Secondly, the Court had to consider whether the respondent's pleading, which alleged a breach of duty of care by his employer, was sufficient to circumvent the application of the Act. This involved an interpretation of the Act to ascertain if the respondent's proceedings constituted a "claim" in respect of a "motor accident" as defined by the legislation.
The Court reasoned that the respondent's claim was indeed a claim with respect to a motor accident within the meaning of the Act. The fact that the pleading was framed as a breach of duty of care by the employer did not alter the fundamental nature of the claim, which arose directly from an incident involving a motor vehicle. The Court applied principles of statutory interpretation to conclude that the substance of the claim, rather than its procedural framing, determined its characterisation under the Act. Consequently, the respondent's failure to comply with the pre-requisites of the Act meant his proceedings were invalid.
The Court of Appeal allowed the appeal, granted leave to appeal, set aside the judgment of the District Court, and dismissed the respondent's Statement of Claim. The respondent was ordered to pay the appellant's costs of both the District Court proceedings and the appeal.
Orders
Orders of the court
(1) Leave to appeal granted (2) Apellant to file in the registry of the Court within 48 hours a Notice of Appeal in the form of the draft handed to the Court (3) Appeal allowed (4) The judgment of Certoma ADCJ of 12 July 2002 be set aside (5) The respondent's Statement of Claim be dismissed (6) The respondent pay the appellant's costs of the District Court proceedings (7) The respondent pay the appellant's costs of the appeal and the application for leave to appeal.
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.