Legal Research
Cases
Hunter v Roberts

Hunter v Roberts

Case [2019] NSWCA 116 20 May 2019

No judgment structure available for this case.

Type to search within this case.

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hunter v Roberts [2019] NSWCA 116
Hearing dates: 22 March 2019
Date of orders: 20 May 2019
Decision date: 20 May 2019
Before: Meagher JA at [1];
Brereton JA at [28];
Simpson AJA at [34]
Decision:
1. Extend to 7 August 2018 the time under Uniform Civil Procedure Rules 2005 (NSW) r 51.9(1)(b) for the filing of a summons seeking leave to appeal.
2. Note the undertaking to the Court of the solicitor for the applicant that the firm Gerard Malouf & Partners will not make any claim for or recover any costs of or incidental to the making of that application for an extension of time.
3. Grant the applicant leave to appeal from the orders of the District Court made on 23 March 2018.
4. Direct that the notice of appeal be filed within 7 days.
5. Allow the appeal.
6. Set aside orders 1, 2 and 3 made by the District Court on 23 March 2018.
7. Order that the respondent’s notice of motion filed in the District Court on 28 June 2016 be dismissed.
8. Order that the respondent pay the applicant’s costs of that motion.
9. Order that the respondent pay the applicant’s costs of the appeal.

Catchwords: TORTS – motor vehicle accident – notice of claim – Motor Accidents Compensation Act 1999 (NSW), s 73 – where claim not made within six months of accident – where applicant seriously injured and had no knowledge of claims process – whether applicant had “full and satisfactory explanation” for delay
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 66, 72, 73
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), r 51.9
Cases Cited: Brierley v Ellis [2014] NSWCA 230
Karambelas v Zaknic (No 2) [2014] NSWCA 433
Russo v Aiello [2001] NSWCA 306
Category: Principal judgment
Parties: Kelly Hunter (applicant)
Jonathon Roberts (respondent)
Representation:
Counsel:
A Casselden SC, J Malouf (applicant)
I Roberts SC (respondent)
Solicitors:
Gerard Malouf & Partners (applicant)
Sparke Helmore Lawyers (respondent)

File Number(s): 2018/242181
Publication restriction: N/A
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

23 March 2018

Before:

Wass SC DCJ

File Number(s):

2016/91722

Judgment

MEAGHER JA: The applicant, Ms Hunter, was seriously injured in a single vehicle accident which occurred on 28 March 2013 on the Parkes Eugowra Road between Forbes and Eugowra. She gave notice of her motor accident claim to NRMA Insurance (NRMA) first on 10 February 2014 and then on 3 March 2014. Such notice should have been given by 28 September 2013, 6 months after the date of the accident, as required by Motor Accidents Compensation Act 1999 (NSW), s 72(1). On 18 March 2014, NRMA rejected that “late claim” and requested the applicant provide “a full and satisfactory explanation” for her delay (s 73(4)). Thereafter the applicant attempted in various ways to give such an explanation, but not before there…

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 Hunter v Roberts

Details

AGLC: Hunter v Roberts [2019] NSWCA 116
Case: [2019] NSWCA 116
Decision Date: 20 May 2019

CaseChat Overview and Summary

The case of *Hunter v Roberts* concerned an appeal to the Court of Appeal of New South Wales regarding a motor vehicle accident claim. The applicant, who had suffered serious injuries in the accident, sought an extension of time to make a claim under the *Motor Accidents Compensation Act 1999* (NSW). The primary dispute revolved around whether the applicant had provided a "full and satisfactory explanation" for failing to lodge the claim within the six-month statutory period, as required by section 73 of the Act, and whether the District Court had erred in dismissing the applicant's application for an extension.

The legal issues before the Court of Appeal were whether the applicant had demonstrated a "full and satisfactory explanation" for the delay in lodging the claim, and consequently, whether the District Court had been correct in refusing to grant an extension of time for the claim to be made. The court also considered the appropriate orders to make in light of its determination on these issues.

The Court of Appeal found that the applicant's serious injuries and lack of knowledge of the claims process constituted a full and satisfactory explanation for the delay. The court applied the principles governing extensions of time under section 73 of the *Motor Accidents Compensation Act 1999* (NSW), emphasising that the focus should be on whether the explanation for the delay is sufficient, particularly where the claimant has suffered significant harm and was unaware of their legal rights. The court allowed the appeal, setting aside the District Court's orders and dismissing the respondent's notice of motion. The respondent was ordered to pay the applicant's costs of the motion and the appeal.

Orders

Orders of the court

1. Extend to 7 August 2018 the time under Uniform Civil Procedure Rules 2005 (NSW) r 51.9(1)(b) for the filing of a summons seeking leave to appeal.

2. Note the undertaking to the Court of the solicitor for the applicant that the firm Gerard Malouf & Partners will not make any claim for or recover any costs of or incidental to the making of that application for an extension of time.

3. Grant the applicant leave to appeal from the orders of the District Court made on 23 March 2018.

4. Direct that the notice of appeal be filed within 7 days.

5. Allow the appeal.

6. Set aside orders 1, 2 and 3 made by the District Court on 23 March 2018.

7. Order that the respondent’s notice of motion filed in the District Court on 28 June 2016 be dismissed.

8. Order that the respondent pay the applicant’s costs of that motion.

9. Order that the respondent pay the applicant’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Hunter v Roberts [2019] NSWCA 116

Most Recent Citation

Chowdhury v Insurance Australia Limited t/as NRMA [2021] NSWPIC 424

Cases Citing This Decision

El Shaimy v Transport Accident Commission [2024] NSWPIC 627
Citation 1 (Para 1)

…in a spectrum of reasonable persons would have experienced the same delay.[5] [4] Walker v Howard [2009] NSWCA 408. See also Hunter v Roberts [2019] NSWCA 116 and Rahman v Al-Maharmeh [2021] NSWCA 31. [5] See Dahdah above.…
Torsney v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 613
Citation 2 (Para 6)

…(No 2) [2014] NSWCA 433 ( Karambelas ) Meagher JA at [16] and [17]. [7] Russo v Aiello [2001] NSWCA 306 Hodgson JA at [17]. [8] Hunter v Roberts [2019] NSWCA 116 Meagher JA at [20].…
Englen v Allianz Australia Insurance Limited [2024] NSWPIC 516
Citation 3 (Para 6)

…(No 2) [2014] NSWCA 433 ( Karambelas ) Meagher JA at [16] and [17]. [6] Russo v Aiello [2001] NSWCA 306 Hodgson JA at [17]. [7] Hunter v Roberts [2019] NSWCA 116 Meagher JA at [20].…
Dinjard v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 189
Citation 4 (Para 2)

…uire a claimant to establish that all ‘reasonable’ persons within that spectrum would have experienced the same delay.” [7] [2019] NSWCA 116.…
Dahdah v Witte [2023] NSWCA 304
Citation 5 (Para 65)

…In Hunter v Roberts [2019] NSWCA 116; (2019) 88 MVR 456, Meagher JA, with whom Brereton JA and Simpson AJA agreed, held (at [18]) that there is a spectrum of reasonable persons and it is sufficient that there is one hypothetical person within that spectrum who would have experienced the same delay. His Honour quote…
Stein v Ryden [2022] NSWCA 212
Citation 6 (Para 38)

…nt that some reasonable claimants in the claimant’s position would have experienced the same delay as the claimant (citing Hunter v Roberts [2019] NSWCA 116; (2019) 88 MVR 456 at [18] per Meagher JA; Brereton JA and Simpson AJA agreeing).…
Andriotis v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 380
Citation 7 (Para 5)

…NSWCA 306 at [17]. Considerations such as the claimant’s age, life experience and understanding of the claim process are relevant: Hunter v Roberts [2019] NSWCA 116 at [20]. Reliance on legal representatives can constitute a satisfactory explanation for delay: Smith v Grant [2006] NSWCA 244 at [60].…
Fernandez v Insurance Australia Limited t/as NRMA [2022] NSWPIC 128
Citation 8 (Para 4)

…NSWCA 306 at [17]. Considerations such as the claimant’s age, life experience and understanding of the claim process are relevant: Hunter v Roberts [2019] NSWCA 116 at [20]. Reliance on legal representatives can constitute a satisfactory explanation for delay: Smith v Grant [2006] NSWCA 244 at [60].…
Agathe v AAI Limited t/as GIO [2022] NSWPIC 115
Citation 9 (Para 4)

…standing of the claim process are relevant.[8] [6] Karambelas at [17]. [7] Russo v Aiello [2001] NSWCA 306 Hodgson JA at [17]. [8] Hunter v Roberts [2019] NSWCA 116 at [20].…
Pecotich v Allianz Australia Insurance Limited [2022] NSWPIC 112
Citation 10 (Para 5)

…standing of the claim process are relevant.[9] [7] Karambelas at [17]. [8] Russo v Aiello [2001] NSWCA 306 Hodgson JA at [17]. [9] Hunter v Roberts [2019] NSWCA 116 at [20].…
Leggett v AAI Limited t/as GIO [2022] NSWPIC 163
Citation 11 (Para 20)

…[8] Hunter v Roberts [2019] NSWCA 116 at [20].…
Sims v Insurance Australia Limited t/as NRMA [2021] NSWPIC 537
Citation 12 (Para 4)

…the date of providing the explanation.[14] [11] Karambelas at [17]. [12] Russo v Aiello [2001] NSWCA 306 Hodgson JA at [17]. [13] Hunter v Roberts [2019] NSWCA 116 at [20]. [14] Walker Allsop P at [54].…
Saha v Insurance Australia Limited t/as NRMA [2021] NSWPIC 535
Citation 13 (Para 4)

…hin limits, is also transferred across.[18] [14] Karambelas at [17]. [15] Russo v Aiello [2001] NSWCA 306 Hodgson JA at [17]. [16] Hunter v Roberts [2019] NSWCA 116 at [20]. [17] Walker Allsop P at [54]. [18] Walker Young JA at [138].…
Latif v AAI Limited t/as GIO [2021] NSWPIC 523
Citation 14 (Para 3)

…within limits, is also transferred across.[10] [6] Karambelas at [17]. [7] Russo v Aiello [2001] NSWCA 306 Hodgson JA at [17]. [8] Hunter v Roberts [2019] NSWCA 116 at [19 -20]. [9] Walker Allsop P at [54]. [10] Walker Young JA at [138].…
Chowdhury v Insurance Australia Limited t/as NRMA [2021] NSWPIC 424
Citation 15 (Para 1)

…arambelas at [16] [10] Karambelas at [17] [11] Russo v Aiello [2001] NSWCA 306 Hodgson JA at [17] [12] Hunter v Roberts [2019] NSWCA 116 at [19 -20] [13] Walker Allsop P at [54] [14] Walker Young JA at [138]…
Rahman v Al-Maharmeh [2021] NSWCA 31
Citation 16

…8 NSWLR 675; [2003] NSWCA 332 House v The King (1936) 55 CLR 499; [1936] HCA 40 Hunter v Roberts (2019) 88 MVR 456; [2019] NSWCA 116 Karambelas v Zaknic (No 2) (2014) 69 MVR 127; [2014] NSWCA 433 Kelly v Jowett (2009) 76 NSWLR 405; [2009] NSWCA 278 Knaggs v J A Westaway & Sons Pty Ltd (1996) 40 NSWLR 476 Malec v JC…
Fitzpatrick v Cervo [2020] NSWDC 619
Citation 17 (Para 27)

…In Hunter v Roberts [2019] NSWCA 116, Meagher JA (with whom Brereton JA and Simpson AJA agreed) followed the principles summarised by his Honour in paragraphs 16-17 of Karambelas .…
Kheyo v Iglesias [2020] NSWDC 323
Citation 18 (Para 48)

…that there is a spectrum of ‘reasonableness’ – it is unnecessary that all reasonable persons would have experienced the delay: Hunter v Roberts [2019] NSWCA 116 per Meagher JA (Brereton JA and Simpson AJA agreeing) at [18] (see also Brereton JA at [32]). As Allsop P said, earlier in Walker v Howard at [108], the te…
Milan Deur v Regent Metal Roofing Pty Ltd [2019] NSWDC 289
Citation 19 (Para 20)

…whether or not the explanation was satisfactory within the meaning of MACA s 66(2). As has been most recently stated in the case of Hunter v Roberts [2019] NSWCA 116 when addressing the evaluative judgment of satisfactoriness of the explanation, the Court is to consider the hypothetical reasonable plaintiff. In th…

See all citing cases →

Cases Cited

Karambelas v Zaknic (No. 2) [2014] NSWCA 433
Citation 1 (Para 5)

…The requirements for such an explanation are sufficiently summarised in my judgment (Basten JA and Simpson J agreeing) in Karambelas v Zaknic (No 2) [2014] NSWCA 433:…
Brierley v Ellis [2014] NSWCA 230
Citation 2 (Para 29)

…ation; the issue was whether it was a “satisfactory” one. 1. Motor Accidents Compensation Act 1999 (NSW), s 66(2), s 73; Brierley v Ellis [2014] NSWCA 230 at [7] (Meagher JA; with whom Basten JA and Gleeson JA agreed); Karambelas v Zaknic (No 2) [2014] NSWCA 433 at [16]-[17] (Meagher JA, with whom Basten JA and Sim…
Nominal Defendant v Browne [2013] NSWCA 197
Citation 3 (Para 15)

…e by giving notice to the third-party insurer. This summary of the position accords with the observations of this Court in Nominal Defendant v Browne [2013] NSWCA 197; 64 MVR 214 at [15] - [16] (Basten JA, Barrett and Gleeson JJA agreeing) as to the application of the definition in s 66(2) to the circumstances of a…
Mancini v Thompson [2002] NSWCA 38
Citation 4

…to the application of the definition in s 66(2) to the circumstances of a late claim, and is not inconsistent with the decision in Mancini v Thompson [2002] NSWCA 38, which makes clear that the focus of the "full" account is on the period of delay to be explained: at [46] - [47] per Rolfe AJA, Beazley and Stein JJ…
Russo v Aiello [2001] NSWCA 306
Citation 5 (Para 18)

…that delay was a period of 4 months and 14 days from 28 September 2013. As Hodgson JA (dissenting in the result) emphasised in Russo v Aiello [2001] NSWCA 306 at [17] there is “a substantial spectrum of reasonableness” and accordingly “it is sufficient that there is a hypothetical person within that spectrum who wo…

Legislation Cited

Motor Accidents Compensation Act 1999 (NSW) 66, 66(2), 72, 72(1), 73
5 mentions (from Para 1)
Supreme Court Act 1970 (NSW) 101, 101(2)(e)
2 mentions (from Para 4)
Uniform Civil Procedure Rules 2005 (NSW) 51.9, 51.9(1)(b)
2 mentions (from Para 4)

Medium Neutral Citation:	Hunter v Roberts [2019] NSWCA 116
Hearing dates:	22 March 2019
Date of orders:	20 May 2019
Decision date:	20 May 2019
Before:	Meagher JA at [1]; Brereton JA at [28]; Simpson AJA at [34]
Decision:	1. Extend to 7 August 2018 the time under Uniform Civil Procedure Rules 2005 (NSW) r 51.9(1)(b) for the filing of a summons seeking leave to appeal. 2. Note the undertaking to the Court of the solicitor for the applicant that the firm Gerard Malouf & Partners will not make any claim for or recover any costs of or incidental to the making of that application for an extension of time. 3. Grant the applicant leave to appeal from the orders of the District Court made on 23 March 2018. 4. Direct that the notice of appeal be filed within 7 days. 5. Allow the appeal. 6. Set aside orders 1, 2 and 3 made by the District Court on 23 March 2018. 7. Order that the respondent’s notice of motion filed in the District Court on 28 June 2016 be dismissed. 8. Order that the respondent pay the applicant’s costs of that motion. 9. Order that the respondent pay the applicant’s costs of the appeal.
Catchwords:	TORTS – motor vehicle accident – notice of claim – Motor Accidents Compensation Act 1999 (NSW), s 73 – where claim not made within six months of accident – where applicant seriously injured and had no knowledge of claims process – whether applicant had “full and satisfactory explanation” for delay
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 66, 72, 73 Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), r 51.9
Cases Cited:	Brierley v Ellis [2014] NSWCA 230 Karambelas v Zaknic (No 2) [2014] NSWCA 433 Russo v Aiello [2001] NSWCA 306
Category:	Principal judgment
Parties:	Kelly Hunter (applicant) Jonathon Roberts (respondent)
Representation:	Counsel: A Casselden SC, J Malouf (applicant) I Roberts SC (respondent) Solicitors: Gerard Malouf & Partners (applicant) Sparke Helmore Lawyers (respondent)
File Number(s):	2018/242181
Publication restriction:	N/A
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 23 March 2018 Before: Wass SC DCJ File Number(s): 2016/91722