Hayek v Trujillo - [2007] NSWCA 139

New South Wales

Court of Appeal

CITATION: Hayek v Trujillo [2007] NSWCA 139

HEARING DATE(S): 4 June 2007

JUDGMENT DATE:
18 June 2007

JUDGMENT OF: Mason P at 1; Ipp JA at 2; McColl JA at 75

DECISION: Appeal dismissed with costs.

CATCHWORDS: STATUTORY INTERPRETATION – Motor Accidents Compensation Act 1999 (NSW), ss 73, 94, 96 and 108 – whether, by s 73(3), the respondent lost the right to challenge the appellant’s claim on the ground of delay – whether the trial judge was entitled to dismiss the proceedings under s 73(4) – whether, in the alternative, by reason of the application of s 96(4), the respondent lost the right to challenge the appellant’s claim on the ground of delay – whether the appellant’s statement of claim was filed in breach of s 108(1) – whether a certificate relating to the assessment of a dispute issued under s 96 was a certificate in respect of a claim under s 94

LEGISLATION CITED: Motor Accidents Compensation Act 1999 (NSW), ss 6, 72, 73, 80, 81, 82, 83, 84, 85, 92, 94, 96, 108, 222
Workers Compensation Act 1987 (NSW), s 151C

CASES CITED: Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364
Dollak v Schilpzand (Unreported, District Court of New South Wales, Delaney DCJ, 2 September 2005)
Poles v Broadbent (Unreported, District Court of New South Wales, Garling DCJ, 17 December 2004)

PARTIES: Jenny Hayek - Appellant
Guadalupe Rojas Trujillo - Respondent

FILE NUMBER(S): CA 40774/05

COUNSEL: PCB Semmler QC / RI Goodridge - Appellant
K Rewell SC - Respondent

SOLICITORS: Firths Compensation Lawyers - Appellant
TL Lawyers - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 1743/05

LOWER COURT JUDICIAL OFFICER: Naughton DCJ

LOWER COURT DATE OF DECISION: 31 August 2005

40774/05

MASON P
IPP JA
McCOLL JA
Monday 18 June 2007

Jenny Hayek v Guadalupe Rojas Trujillo

Judgment

1 MASON P: I agree with Ipp JA.

2 IPP JA:

The appellant’s claim and the hearing of the respondent’s notice of motion

3 On 9 May 2005, the appellant commenced proceedings in the District Court for damages for personal injuries. Her claim arose out of a motor accident. The statement of claim alleged “these proceedings are commenced pursuant to a certificate under s 96(1)(a) of the [Motor Accidents Compensation Act 1999 (NSW)] and issued in accordance with s 94 of the Act (as it applies by s 96(3)) dated 9 March 2005.”

4 The respondent thereupon applied by notice of motion to the District Court for an order that “[the appellant’s] Statement of Claim be dismissed pursuant to s 73(4) of the Motor Accidents Compensation Act 1999 (NSW)”.

5 Section 73(4) of the Act provides:

“(4) A court must dismiss proceedings commenced in respect of a late claim if the court is satisfied that the claimant does not have a full and satisfactory explanation for the delay in making the claim.”

6 The order sought in the notice of motion suggested, by its terms,…

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 Hayek v Trujillo

Details

AGLC: Hayek v Trujillo [2007] NSWCA 139
Case: [2007] NSWCA 139
Decision Date: 18 June 2007

CaseChat Overview and Summary

The appeal concerned a dispute between Hayek (appellant) and Trujillo (respondent) regarding a claim under the *Motor Accidents Compensation Act 1999* (NSW). The core of the disagreement revolved around whether the respondent had lost the right to challenge the appellant's claim due to delays in the proceedings, and whether the trial judge had correctly dismissed the proceedings.

The court was required to determine several key legal issues. These included whether the respondent had forfeited the right to object to the appellant's claim on grounds of delay, as stipulated by section 73(3) of the Act. Additionally, the court considered whether the trial judge's dismissal of the proceedings under section 73(4) was justified. Further questions arose concerning whether the respondent had lost the right to challenge the claim due to delay by operation of section 96(4), and whether the appellant's statement of claim had been filed in contravention of section 108(1). Finally, the court had to ascertain if a certificate issued under section 96, relating to the assessment of a dispute, constituted a certificate in respect of a claim under section 94.

The court's reasoning focused on the interpretation of the relevant sections of the *Motor Accidents Compensation Act 1999* (NSW). It was held that the provisions concerning delay and the consequences of non-compliance were to be applied strictly. The court found that the appellant had not established that the respondent had lost the right to challenge the claim on the grounds of delay under section 73(3) or section 96(4). Furthermore, the court determined that the statement of claim was not filed in breach of section 108(1) and that the certificate issued under section 96 was indeed a certificate in respect of a claim under section 94. Consequently, the trial judge's decision to dismiss the proceedings under section 73(4) was upheld.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

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:	Hayek v Trujillo [2007] NSWCA 139
HEARING DATE(S):	4 June 2007
JUDGMENT DATE:	18 June 2007
JUDGMENT OF:	Mason P at 1; Ipp JA at 2; McColl JA at 75
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	STATUTORY INTERPRETATION – Motor Accidents Compensation Act 1999 (NSW), ss 73, 94, 96 and 108 – whether, by s 73(3), the respondent lost the right to challenge the appellant’s claim on the ground of delay – whether the trial judge was entitled to dismiss the proceedings under s 73(4) – whether, in the alternative, by reason of the application of s 96(4), the respondent lost the right to challenge the appellant’s claim on the ground of delay – whether the appellant’s statement of claim was filed in breach of s 108(1) – whether a certificate relating to the assessment of a dispute issued under s 96 was a certificate in respect of a claim under s 94
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 (NSW), ss 6, 72, 73, 80, 81, 82, 83, 84, 85, 92, 94, 96, 108, 222 Workers Compensation Act 1987 (NSW), s 151C
CASES CITED:	Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 Dollak v Schilpzand (Unreported, District Court of New South Wales, Delaney DCJ, 2 September 2005) Poles v Broadbent (Unreported, District Court of New South Wales, Garling DCJ, 17 December 2004)
PARTIES:	Jenny Hayek - Appellant Guadalupe Rojas Trujillo - Respondent
FILE NUMBER(S):	CA 40774/05
COUNSEL:	PCB Semmler QC / RI Goodridge - Appellant K Rewell SC - Respondent
SOLICITORS:	Firths Compensation Lawyers - Appellant TL Lawyers - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	1743/05
LOWER COURT JUDICIAL OFFICER:	Naughton DCJ
LOWER COURT DATE OF DECISION:	31 August 2005