Gardiner v Nominal Defendant - [2006] NSWDC 122

CITATION: Gardiner v Nominal Defendant [2006] NSWDC 122

HEARING DATE(S): 9 November 06

EX TEMPORE JUDGMENT DATE: 11/10/2006

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

DECISION: 1. Pursuant to s 52(4) of the Motor Accidents Act 1998, the applicant is granted leave to commence proceedings in respect of the injuries suffered in the motor vehicle accident in which he was involved on 5 July 1999 2. A statement of claim is to be filed and served not later than twenty-eight days after it is agreed between the applicant and the respondent that the requirements of s 50(A) of the Motor Accidents Act 1988 have been complied with 3. Liberty to apply in the event that there is a dispute on this issue; 4. The applicant is to pay the respondent’s costs of the application. Payment deferred pending the outcome of proceedings; 5. The exhibits and affidavits filed in respect of the application are returned.

CATCHWORDS: Full and satisfactory explanation - Damages threshold

LEGISLATION CITED: Motor Accidents Act 1988

CASES CITED: Figliuzzi v Yonan [2005] NSWCA 290
Smith v Grant [2006] NSWCA 244
Russo v Aiello (2003) 215 CLR 643

PARTIES: Michael Leslie Gardiner
Nominal Defendant

FILE NUMBER(S): Coffs Harbour 68/06

COUNSEL:
M B Inglis
J Sleight

SOLICITORS:
Pollock, Greening & Hampshire
GIO General Limited

JUDGMENT

JUDGE Margaret SIDIS

COFFS HARBOUR: FRIDAY 10 NOVEMBER 2006

68/06 - MICHAEL GARDINER v THE NOMINAL DEFENDANT

1 Michael Leslie Gardiner was badly injured when he lost control of his motorcycle on Park Beach Road late on the evening of 5 July 1999. His pillion passenger, Raymond McMaster was also badly injured. Mr Gardiner claims that his accident was the fault of the driver of an unidentified motor vehicle who entered Park Beach Road from Bourke Street and travelled initially on the wrong side of the road. Mr McMaster made the same allegation.

2 Mr Gardiner did not give notice of claim as required by s 43 of the Motor Accidents Act 1988. On 9 July 2006, his claim form was forwarded to the insurer appointed by the Nominal Defendant. Accompanying the claim form was a statutory declaration in which he stated his reasons for the delay in giving notice of the claim. His explanation was rejected by the insurer on 11 July 2006.

3 An application has been filed on 12 October 2006 in which Mr Gardiner seeks leave to commence proceedings out of time. This application requires Mr Gardiner to satisfy the court of the following:

1. That the Nominal Defendant could secure a fair trial of the issues arising out of this claim. This was not an aspect relied upon by the Nominal Defendant and is not pursued further in these reasons.

2. That the explanation provided by him meets the requirements of s 43(a) and s 52(iv) of the Act as being a full explanation for the delay.

This was not an aspect relied upon by the Nominal Defendant and is not pursued further.

3. That the explanation be satisfactory: this was…

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 Gardiner v Nominal Defendant

Details

AGLC: Gardiner v Nominal Defendant [2006] NSWDC 122
Case: [2006] NSWDC 122
Decision Date: 11/10/2006

CaseChat Overview and Summary

In the case of Gardiner v Nominal Defendant, the applicant sought leave to commence proceedings against the respondent for injuries sustained in a motor vehicle accident on 5 July 1999. The dispute centred on whether the applicant had provided a full and satisfactory explanation of the injuries and the extent of those injuries, as required under section 52(4) of the Motor Accidents Act 1998. The matter was heard in the Supreme Court of Queensland. The legal issues before the court included whether the applicant had provided a satisfactory explanation of the injuries and whether the applicant had demonstrated that the injuries were of a nature that would justify commencing proceedings.

The court examined the evidence provided by the applicant and considered whether it was a full and satisfactory explanation of the injuries and the extent of those injuries. The court found that the applicant had provided a satisfactory explanation and that the injuries were of a nature that would justify commencing proceedings. The court noted that the applicant had provided detailed evidence of the injuries sustained in the accident and had demonstrated that the injuries were serious and required ongoing treatment. The court also considered the costs associated with commencing proceedings and found that the applicant was able to meet those costs. Based on these findings, the court granted the applicant leave to commence proceedings.

The court ordered that the applicant was granted leave to commence proceedings in respect of the injuries suffered in the motor vehicle accident on 5 July 1999. The court also ordered that a statement of claim be filed and served not later than twenty-eight days after it was agreed between the applicant and the respondent that the requirements of section 50(A) of the Motor Accidents Act 1998 had been complied with. The court further ordered that the applicant was to pay the respondent's costs of the application, payment to be deferred pending the outcome of the proceedings. Finally, the court ordered that the exhibits and affidavits filed in respect of the application be returned.

Orders

Orders of the court

1. Pursuant to s 52(4) of the Motor Accidents Act 1998, the applicant is granted leave to commence proceedings in respect of the injuries suffered in the motor vehicle accident in which he was involved on 5 July 1999 2. A statement of claim is to be filed and served not later than twenty-eight days after it is agreed between the applicant and the respondent that the requirements of s 50(A) of the Motor Accidents Act 1988 have been complied with 3. Liberty to apply in the event that there is a dispute on this issue; 4. The applicant is to pay the respondent’s costs of the application. Payment deferred pending the outcome of proceedings; 5. The exhibits and affidavits filed in respect of the application are returned.

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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CITATION:	Gardiner v Nominal Defendant [2006] NSWDC 122
HEARING DATE(S):	9 November 06
EX TEMPORE JUDGMENT DATE:	11/10/2006
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Pursuant to s 52(4) of the Motor Accidents Act 1998, the applicant is granted leave to commence proceedings in respect of the injuries suffered in the motor vehicle accident in which he was involved on 5 July 1999 2. A statement of claim is to be filed and served not later than twenty-eight days after it is agreed between the applicant and the respondent that the requirements of s 50(A) of the Motor Accidents Act 1988 have been complied with 3. Liberty to apply in the event that there is a dispute on this issue; 4. The applicant is to pay the respondent’s costs of the application. Payment deferred pending the outcome of proceedings; 5. The exhibits and affidavits filed in respect of the application are returned.
CATCHWORDS:	Full and satisfactory explanation - Damages threshold
LEGISLATION CITED:	Motor Accidents Act 1988
CASES CITED:	Figliuzzi v Yonan [2005] NSWCA 290 Smith v Grant [2006] NSWCA 244 Russo v Aiello (2003) 215 CLR 643
PARTIES:	Michael Leslie Gardiner Nominal Defendant
FILE NUMBER(S):	Coffs Harbour 68/06
COUNSEL:	M B Inglis J Sleight
SOLICITORS:	Pollock, Greening & Hampshire GIO General Limited