Grant v Rafferty - [2001] NSWCA 244

CITATION: GRANT v. RAFFERTY [2001] NSWCA 244

FILE NUMBER(S): CA 40759/99

HEARING DATE(S): 24/07/2001

JUDGMENT DATE:
24 July 2001

PARTIES :

Myra Grant (Appellant)
Sean Thomas Rafferty (Respondent)

JUDGMENT OF: Powell JA at 1,35; Foster AJA at 31

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 4869/99

LOWER COURT
JUDICIAL OFFICER : Christie DCJ

COUNSEL: N.J. Polin/Ms. J. Fredman (Appellant)
W.R. Ward (Respondent)

SOLICITORS: Sparke Helmore (Appellant)
Doran Roberts & Co., (Liverpool) (Respondent)

CATCHWORDS: LIMITATION OF ACTIONS - Motor vehicle accident - Leave to commence proceedings out of time - Application for - Repeated applications for - Four applications dismissed - Fifth application based on same evidence as third and fourth application - Abuse of processs D

DECISION: Appeal upheld; Order for leave set aside

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40759/99
DC 4869/99

POWELL JA

FOSTER AJA

GRANT v. RAFFERTY

JUDGMENT

1 POWELL JA: The Appellant appeals, by leave, from a Judgment delivered, and an Order made, by Christie DCJ in the District Court at Sydney on 8 September 1999.

2 On that day his Honour, on the application of the Respondent, ordered that leave be granted to file a Statement of Claim seeking to recover from the Appellant damages in respect of injuries which he claimed to have sustained in a motor accident which occurred on 5 December 1993 when the motor vehicle driven by the then Respondent collided with the motor cycle then being ridden by the then applicant.

3 The need for leave to be granted for the filing of that Statement of Claim was brought about by the provisions of s 52(4) of the Motor Accidents Act 1988 ("the Act") as they were in 1993. That section, it is to be recalled, provided that no proceedings might be commenced more than three years after the expiration of the period for giving a notice of claim in respect of such an accident, that period then being six months after the date of the accident, it following that the time for commencing proceedings without leave had expired in early June 1997.

4 The ground upon which the present appeal is brought is, effectively, that Christie DCJ misdirected himself as to the approach that it was proper to be taken to the application which was then before him. The basis upon which that ground is supported is best illustrated by the history of what had occurred after the accident.

5 The Respondent, sought legal advice on 31 January 1994 from a Mr Roberts, whose firm then carried on practice at Liverpool. For some reason - apparently because Mr Roberts thought at the time that the Respondent's injuries were not such as would carry him past the threshold provided for in the Act - no notice of claim was given within the six months following the accident; in fact, no notice of the claim was given to the Appellant’s insurers until 9 February 1995.

6 In…

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 Grant v Rafferty

Details

AGLC: Grant v Rafferty [2001] NSWCA 244
Case: [2001] NSWCA 244
Decision Date: 24 July 2001

CaseChat Overview and Summary

The parties to this matter were Grant (the applicant) and Rafferty (the respondent). The dispute concerned an application for leave to commence proceedings out of time following a motor vehicle accident. The application was heard by the Supreme Court of New South Wales.

The central legal issue before the Court of Appeal was whether the applicant should be granted leave to commence proceedings out of time, particularly in light of repeated, unsuccessful applications for the same relief based on substantially the same evidence. The court was required to consider whether the fifth application constituted an abuse of process.

The Court of Appeal found that the applicant had made four previous applications for leave to commence proceedings out of time, all of which had been dismissed. The fifth application was based on the same evidence as the third and fourth applications, and no new material had been presented. The court held that allowing the fifth application to proceed would be an abuse of process, as it represented a persistent and vexatious pursuit of a claim that had already been thoroughly considered and rejected by the court. The principles of res judicata and issue estoppel were implicitly considered in the context of preventing the relitigation of decided matters.

Consequently, the appeal was upheld, and the order granting leave to commence proceedings out of time was set aside.

Orders

Orders of the court

Appeal upheld; Order for leave set aside

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:	GRANT v. RAFFERTY [2001] NSWCA 244
FILE NUMBER(S):	CA 40759/99
HEARING DATE(S):	24/07/2001
JUDGMENT DATE:	24 July 2001
PARTIES :	Myra Grant (Appellant) Sean Thomas Rafferty (Respondent)
JUDGMENT OF:	Powell JA at 1,35; Foster AJA at 31

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 4869/99
LOWER COURT JUDICIAL OFFICER :	Christie DCJ

COUNSEL:	N.J. Polin/Ms. J. Fredman (Appellant) W.R. Ward (Respondent)
SOLICITORS:	Sparke Helmore (Appellant) Doran Roberts & Co., (Liverpool) (Respondent)
CATCHWORDS:	LIMITATION OF ACTIONS - Motor vehicle accident - Leave to commence proceedings out of time - Application for - Repeated applications for - Four applications dismissed - Fifth application based on same evidence as third and fourth application - Abuse of processs D
DECISION:	Appeal upheld; Order for leave set aside