Hudson v Licciardo

[2010] NSWCA 346

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Hudson v Licciardo [2010] NSWCA 346

FILE NUMBER(S):
2010/00004478

HEARING DATE(S):
9 December 2010

JUDGMENT DATE:
9 December 2010

EX TEMPORE DATE:
9 December 2010

PARTIES:
Tamara Lee HUDSON  (applicant)
Shane LICCIARDO  (respondent) 

JUDGMENT OF:
Beazley JA Hodgson JA Sackville AJA   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2327/2007

LOWER COURT JUDICIAL OFFICER:
Levy SC DCJ

LOWER COURT DATE OF DECISION:
6 November 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
Licciardo v Hudson (No 1) [2009] NSWDC 289

COUNSEL:
K P REWELL SC/ S E TORRINGTON (applicant)
S NORTON SC/ M DALEY (respondent)

SOLICITORS:
Curwoods Lawyers  (applicant)
Brydens Law Office LP  (respondent)

CATCHWORDS:
PROCEDURE – Application for leave to appeal – Order by primary judge remitting issues to MAS assessors – Assessments made before application heard – Applicant no longer sought the setting aside of the order, but sought the setting aside of judge’s interim findings – Whether such interim findings the proper subject of an appeal. 

LEGISLATION CITED:
Motor Accidents Compensation Act 1999, s 60(1) and s 62(1)(b)

CATEGORY:
Procedural and other rulings

CASES CITED:

TEXTS CITED:

DECISION:
The summons for leave to appeal is dismissed.
Orders in respect of costs: 
1.  The costs of the summons for leave to appeal up to 12 April 2010 be costs in the cause, except for the costs of the notice of motion heard by Young JA on 12 April 2010.

1. Thereafter, the applicant is to pay the respondent's costs on an indemnity basis.  In this regard, the Court notes that this matter was set down for hearing for a concurrent hearing of the summons for leave to appeal and the appeal.

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2010/00004478

BEAZLEY JA
HODGSON JA
SACKVILLE AJA

Thursday 9 DECEMBER 2010

Tamara Lee HUDSON v Shane LICCIARDO

Judgment

1. HODGSON JA: On 6 November 2009 Levy DCJ made a direction or order having the effect of remitting certain issues to the MAS assessor, doing so purportedly pursuant to s 60(1) and s 62(1)(b) of the Motor Accidents Compensation Act 1999. In making that order, the primary judge gave a judgment in the course of which he made what he called interim findings.

2. The defendant in the proceedings before the primary judge sought leave to appeal from what was described in the summons as interim findings and orders made by the primary judge.  Prior to the application for leave to appeal coming on before this Court, further assessments were made by MAS assessors, and the effect of those assessments was that the threshold for non-economic loss under the Motor Accidents Compensation Act was still not met.

3. In those circumstances, the applicant no longer seeks from this Court the setting aside of the remission of the matter to MAS assessors.  However, the applicant continues to seek orders in effect setting aside what were described by the primary judge as interim findings.

4. In my opinion, leave should not be granted to appeal to seek such orders from this Court.  What were called by the primary judge interim findings do not amount to orders of the District Court which could properly be the subject of appeal to this Court.

5. In my opinion, an appeal process, in the events that have happened, is no longer appropriate, and for that reason, in my opinion, leave to appeal should be refused.

6. BEAZLEY JA:  I agree.

7. SACKVILLE AJA:  I also agree.

   ___________

8. BEAZLEY JA:  I formally make the Court order that the summons for leave to appeal is dismissed.

9. The Court then makes the following orders in respect of costs: 

   1.The costs of the summons for leave to appeal up to 12 April 2010 be costs in the cause, except for the costs of the notice of motion heard by Young JA on 12 April 2010.

   2. Thereafter, the applicant is to pay the respondent's costs on an indemnity basis.  In this regard, the Court notes that this matter was set down for hearing for a concurrent hearing of the summons for leave to appeal and the appeal.

   oOo

LAST UPDATED:
10 December 2010