Karambelas v Zaknic - [2014] NSWCA 187

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Karambelas v Zaknic [2014] NSWCA 187
Hearing dates: 5 June 2014
Decision date: 05 June 2014
Before: Basten JA;
Ward JA
Decision:
(1) Grant leave to appeal.
(2) Costs of the application for leave to appeal will be costs in the proceedings in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
PRACTICE AND PROCEDURE - application for leave to appeal - whether primary judge applied statute correctly - whether reasons for rejecting explanation for delay in making claim adequate - whether inconsistent decisions of court of appeal
TORTS - motor accident claim - failure to make claim within six month period - whether full and satisfactory explanation given for delay - whether relevant delay from date of accident to making of claim or to date of court hearing - Motor Accidents Compensation Act 1999 (NSW), ss 66, 73
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 66, 72, 73
Cases Cited: Mancini v Thompson [2002] NSWCA 38
Nominal Defendant v Browne [2013] NSWCA 197
Category: Procedural and other rulings
Parties: Fofie Karambelas (Applicant)
Jessica Zaknic (First Respondent)
Sladjan Lakic (Second Respondent)
Representation: Counsel:
Mr R Sheldon SC/Ms L Welsh (Applicant)
Mr M A Cleary (Respondents)
Solicitors:
Brydens Compensation Lawyers (Applicant)
Moray & Agnew Lawyers (Respondents)

File Number(s): CA 2014/4958
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-12-09 00:00:00

Before:

Sorby DCJ

File Number(s):

DC 2013/231274

Judgment

BASTEN JA delivering the JUDGMENT of the COURT: This matter involves an application for leave to appeal from a judgment of Sorby DCJ in the District Court delivered on 6 December 2013. His Honour was considering an application to dismiss a statement of claim filed by a person injured in a motor accident. The basis of the application was that the plaintiff had not given a full and satisfactory explanation for the delay in making a claim under s 72 of the Motor Accidents Compensation Act 1999 (NSW).

The issue in dispute is whether, in considering if the explanation were full and satisfactory, the judge required that the explanation extend from the date of accident up until the date of the proceedings before him. He said in his judgment at par 22 that the length of the delay was four years and nine months, thus indicating a period up to the date of consideration by the Court. In fact the period from the date of accident to making the claim, was the six month period permitted by the section, together with a further ten and one-half months. It therefore appears that the trial judge may…

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.

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Details

Case: [2014] NSWCA 187
Decision Date: 05 June 2014

CaseChat Overview and Summary

This matter concerned an application for leave to appeal from a judgment of the District Court, where the primary judge had dismissed a statement of claim in a motor accident claim. The dismissal was based on the plaintiff's alleged failure to provide a full and satisfactory explanation for the delay in making the claim, as required by section 72 of the *Motor Accidents Compensation Act 1999* (NSW). The applicant contended that the primary judge had erred in law by considering the delay from the date of the accident to the date of the court hearing, rather than the period from the accident to the making of the claim.

The legal issues before the Court of Appeal included whether the primary judge had correctly applied the relevant provisions of the *Motor Accidents Compensation Act 1999* (NSW), specifically sections 66 and 73, in determining if a full and satisfactory explanation for the delay had been provided. The court was also required to consider whether the reasons given by the primary judge for rejecting the plaintiff's explanations were themselves adequate, and whether there was an inconsistency between previous decisions of the Court of Appeal in *Mancini v Thompson* and *Nominal Defendant v Browne*.

The Court of Appeal found that the primary judge may not have directed himself to the correct question regarding the period of delay to be considered. It appeared that the judge had calculated the delay from the date of the accident to the date of the proceedings, whereas the relevant period for assessing the explanation was from the accident to the making of the claim. The court also noted that the judgment below did not seem to adequately address the substance of the explanations provided by the plaintiff, and the reasons for rejecting them appeared insufficient. Consequently, the Court of Appeal granted leave to appeal.

Orders

Orders of the court

(1) Grant leave to appeal.

(2) Costs of the application for leave to appeal will be costs in the proceedings in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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

BASTEN JA delivering the JUDGMENT of the COURT: This matter involves an application for leave to appeal from a judgment of Sorby DCJ in the District Court delivered on 6 December 2013. His Honour was considering an application to dismiss a statement of claim filed by a person injured in a motor accident. The basis of the application was that the plaintiff had not given a full and satisfactory explanation for the delay in making a claim under s 72 of the Motor Accidents Compensation Act 1999 (NSW). The issue in dispute is whether, in considering if the explanation were full and satisfactory, the judge required that the explanation extend from the date of accident up until the date of the proceedings before him. He said in his judgment at par 22 that the length of the delay was four years and nine months, thus indicating a period up to the date of consideration by the Court. In fact the period from the date of accident to making the claim, was the six month period permitted by the section, together with a further ten and one-half months. It therefore appears that the trial judge may not have directed himself to the correct question to be determined in dismissing the proceedings. The applicant submitted that there was a legal error, possibly due to a tension perceived between the definition in s 66 and the requirements of s 73(1) and (7) of the Motor Accidents Compensation Act. On one view there may also be a difference of approach revealed in the decisions of this Court in Mancini v Thompson [2002] NSWCA 38 and Nominal Defendant v Browne [2013] NSWCA 197; 64 MVR 214. Whether or not that is so, and it is a matter to which the applicant and the respondent should give some consideration, there does appear to have been a failure by the trial judge to comply with the principles as articulated in the latter case. The applicant also submitted that the judgment below gave inadequate consideration to the substance of the explanations in fact given by the plaintiff and that the reasons given for rejecting the explanations as insufficient and inadequate, were themselves inadequate. Whether that is so or not requires reference to the material, including the evidence of the plaintiff before the primary judge. On its face, the judgment does not seem to do justice to the somewhat lengthy material provided both in writing and orally by the plaintiff. Accordingly, it is appropriate that there be a grant of leave in this case. The parties are invited to consider whether there is a tension between the two judgments in this Court which might require the President to consider sitting five judges. The applicant is invited to consider whether the draft notice of appeal should be amended so that the grounds identify more succinctly and precisely the matters which were raised in the course of argument today. The Court's orders are:

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Karambelas v Zaknic [2014] NSWCA 187
Hearing dates:	5 June 2014
Decision date:	05 June 2014
Before:	Basten JA; Ward JA
Decision:	(1) Grant leave to appeal. (2) Costs of the application for leave to appeal will be costs in the proceedings in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PRACTICE AND PROCEDURE - application for leave to appeal - whether primary judge applied statute correctly - whether reasons for rejecting explanation for delay in making claim adequate - whether inconsistent decisions of court of appeal TORTS - motor accident claim - failure to make claim within six month period - whether full and satisfactory explanation given for delay - whether relevant delay from date of accident to making of claim or to date of court hearing - Motor Accidents Compensation Act 1999 (NSW), ss 66, 73
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 66, 72, 73
Cases Cited:	Mancini v Thompson [2002] NSWCA 38 Nominal Defendant v Browne [2013] NSWCA 197
Category:	Procedural and other rulings
Parties:	Fofie Karambelas (Applicant) Jessica Zaknic (First Respondent) Sladjan Lakic (Second Respondent)
Representation:	Counsel: Mr R Sheldon SC/Ms L Welsh (Applicant) Mr M A Cleary (Respondents) Solicitors: Brydens Compensation Lawyers (Applicant) Moray & Agnew Lawyers (Respondents)
File Number(s):	CA 2014/4958
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2013-12-09 00:00:00 Before: Sorby DCJ File Number(s): DC 2013/231274