New South Wales
Court of Appeal
CITATION: Hooker v Gilling [2007] NSWCA 99
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 4 April 2007
JUDGMENT DATE:
1 May 2007JUDGMENT OF: Ipp JA at 1; McColl JA at 2; Basten JA at 72 DECISION: 1. Grant leave to appeal; 2. Notice of Appeal to be filed within fourteen days; 3. Appeal allowed; 4. Set aside the orders made by O’Toole DCJ on 26 May 2006 striking out paragraphs 6, 7, 8, 10 and 11 of the Amended Statement of Claim; 5. Grant the claimant leave to amend the Amended Statement of Claim to plead the progressive injury claim; 6. Each party to pay his and her own costs of the application for leave to appeal and the appeal and to have a certificate under the Suitors’ Fund Act 1951 if otherwise qualified. CATCHWORDS: MOTOR VEHICLES – Motor Accidents Compensation Act 1999 – section 3 – definition of “injury” – does not include a progressive injury claim. STATUTES – interpretation – amending Act purporting to clarify original Act may be taken into account in interpretation of original Act. PROCEDURE – Pleading – Statement of Claim – requirement to state case with sufficient clarity so defendant can understand case being put. PROCEDURE – application for leave to appeal – preparation of White Book – concurrent hearing – written submissions should be suitable for use on appeal LEGISLATION CITED: Civil Procedure Act 2005
Limitation Act 1969
Motor Accidents Act 1988
Motor Accidents Compensation Act 1999
Motor Accidents Compensation Amendment Act 2006
Suitors' Fund Act 1951
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005CASES CITED: A V Jennings Ltd v Thomas [2004] NSWCA 309
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203
Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519
Commissioner of State Revenue v Pioneer Concrete (Vic) Pty Ltd [2002] HCA 43; (2002) 209 CLR 651
Dare v Pulham [1982] HCA 40; (1982) 148 CLR 658
Deputy Federal Commissioner of Taxes v Elder's Trustee and Executor Co Ltd [1936] HCA 64; (1936) 57 CLR 610
Dixon v Anti-Discrimination Commissioner of Queensland [2004] QSC 058; [2005] 1 Qd R 33
Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231; (2003) 57 NSWLR 636
Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574
Geelong Harbour Trust Commissioners v Gibbs Bright & Co [1974] HCA 2; (1974) 129 CLR 576
Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490
Grain Elevators Board (Vic) v Dunmunkle Corporation [1946] HCA 13; (1946) 73 CLR 70
Harding v Commissiner of Stamps (Qld) [1898] AC 769
Hunter Resources Ltd v…
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- AGLC
- Hooker v Gilling [2007] NSWCA 99
- Case
- [2007] NSWCA 99
- Decision Date
CaseChat Overview and Summary
Hooker (the claimant) appealed to the Court of Appeal of New South Wales against an order of the District Court of New South Wales that struck out certain paragraphs of her Amended Statement of Claim. The dispute concerned whether the claimant's claim for a progressive injury was valid under the *Motor Accidents Compensation Act 1999* (NSW).
The primary legal issue before the Court of Appeal was the interpretation of the definition of "injury" within section 3 of the *Motor Accidents Compensation Act 1999*. Specifically, the court had to determine whether this definition encompassed claims for progressive injuries, which develop over time rather than arising from a single identifiable incident. A secondary issue related to the principles of pleading, namely whether the claimant's statement of claim had adequately articulated her case to allow the defendant to understand the nature of the claim being advanced.
The Court of Appeal reasoned that the definition of "injury" in section 3 of the Act, as it stood at the relevant time, did not exclude claims for progressive injuries. The court considered that an amendment to the Act, which purported to clarify the original meaning, could be taken into account in interpreting the original provision. Furthermore, the court found that the claimant's Amended Statement of Claim, while perhaps not perfectly drafted, had provided sufficient clarity for the defendant to understand the progressive nature of the injury alleged.
Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the District Court's order striking out paragraphs 6, 7, 8, 10, and 11 of the Amended Statement of Claim. The claimant was granted leave to amend her statement of claim to further plead the progressive injury claim. The costs of the application for leave to appeal and the appeal were ordered to be borne by each party.
The primary legal issue before the Court of Appeal was the interpretation of the definition of "injury" within section 3 of the *Motor Accidents Compensation Act 1999*. Specifically, the court had to determine whether this definition encompassed claims for progressive injuries, which develop over time rather than arising from a single identifiable incident. A secondary issue related to the principles of pleading, namely whether the claimant's statement of claim had adequately articulated her case to allow the defendant to understand the nature of the claim being advanced.
The Court of Appeal reasoned that the definition of "injury" in section 3 of the Act, as it stood at the relevant time, did not exclude claims for progressive injuries. The court considered that an amendment to the Act, which purported to clarify the original meaning, could be taken into account in interpreting the original provision. Furthermore, the court found that the claimant's Amended Statement of Claim, while perhaps not perfectly drafted, had provided sufficient clarity for the defendant to understand the progressive nature of the injury alleged.
Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the District Court's order striking out paragraphs 6, 7, 8, 10, and 11 of the Amended Statement of Claim. The claimant was granted leave to amend her statement of claim to further plead the progressive injury claim. The costs of the application for leave to appeal and the appeal were ordered to be borne by each party.
Orders
Orders of the court
1. Grant leave to appeal; 2. Notice of Appeal to be filed within fourteen days; 3. Appeal allowed; 4. Set aside the orders made by O'Toole DCJ on 26 May 2006 striking out paragraphs 6, 7, 8, 10 and 11 of the Amended Statement of Claim; 5. Grant the claimant leave to amend the Amended Statement of Claim to plead the progressive injury claim; 6. Each party to pay his and her own costs of the application for leave to appeal and the appeal and to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.
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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