Khoury v Linfox Australia Pty Ltd - [2006] NSWCA 51

New South Wales

Court of Appeal

CITATION: KHOURY v. LINFOX AUSTRALIA PTY. LTD. [2006] NSWCA 51
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 20/02/2006

JUDGMENT DATE:
20 February 2006

JUDGMENT OF: Beazley JA at 1,37; Tobias JA at 24

EX TEMPORE JUDGMENT DATE: 02/20/2006

DECISION: 1. Leave granted to appeal.; 2. Appeal allowed.; 3. Extend time for the filing of a Statement of Claim until 21/04/2006; 4. Opponent to pay the claimant's costs of the Summons for leave to appeal and of the appeal and to have a certificate under the Suitors Fund Act is so entitled

CATCHWORDS: LIMITATION OF ACTION – test for extension of time under the Motor Accidents Compensation Act (NSW) 1999 is whether a “full and satisfactory” explanation for the delay has been provided by the claimant – full and satisfactory explanation provided – deficient initial legal advice by claimant’s previous solicitors - reasonable steps taken by current solicitors in pursuit of a claim - claim hindered by absence of cooperation and inadequate information on the part of the other parties – reasonable person would have failed to comply with statutory requirements - MOTOR ACCIDENTS – extension of time to commence proceedings – whether “full and satisfactory” explanation for delay - APPEAL – incorrect test applied by trial judge – not open to trial judge to find otherwise than that a full and satisfactory explanation had been given

LEGISLATION CITED: Motor Accidents Compensation Act (NSW) 1999; ss 66(2), 109(1), 109(3)(a), 60C(2)

CASES CITED: Figliuzzi v Yonan [2005] NSWCA 290
Russo v Aiello (2003) 215 CLR 643
Buller v Black (2003) 56 NSWLR 425
House v The King (1936) 55 CLR 499

PARTIES: Michael Khoury (Claimant)
Linfox Australia Pty. Limited (Opponent)

FILE NUMBER(S): CA 40717/05

COUNSEL: K. Andrews (Claimant)
P. O'Connor (Opponent)

SOLICITORS: Keddies (Claimant)
McCulloch & Buggy (Opponent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC317/05

LOWER COURT JUDICIAL OFFICER: Judge Duck

CA40717/05

BEAZLEY JA
TOBIAS JA
20 February 2006

KHOURY v. LINFOX AUSTRALIA PTY. LTD.

Judgment

1 BEAZLEY JA: The Court has before it a summons for leave to appeal from an interlocutory decision of Judge Duck of the District Court of 9 August 2005 in which his Honour dismissed an application by the claimant who was seeking leave pursuant to s 109 of the Motor Accidents Compensation Act (NSW) 1999 (the MAC Act) to extend time within which to bring proceedings against the opponent. The summons for leave to appeal and, if granted, the appeal have been heard together.

2 It was properly conceded by counsel on behalf of the opponents that his Honour applied the wrong test when determining whether or not to extend time.

3 His Honour approached the matter on the basis that the test to be applied was whether it was just and reasonable to extend the time to commence proceedings. That terminology appears in some Limitation Statutes in this State but has no…

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: [2006] NSWCA 51
Decision Date: 20 February 2006

CaseChat Overview and Summary

In *Khoury v Linfox Australia Pty Ltd*, the claimant sought an extension of time to commence proceedings under the *Motor Accidents Compensation Act 1999* (NSW). The claimant had been injured in a motor vehicle accident and had failed to file a Statement of Claim within the prescribed time limit. The primary judge had refused the extension of time, and the claimant appealed this decision to the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the claimant had provided a "full and satisfactory" explanation for the delay in commencing proceedings, as required by section 109 of the *Motor Accidents Compensation Act 1999* (NSW). This involved determining whether the trial judge had applied the correct legal test and whether, on the evidence, a full and satisfactory explanation had been established.

The Court of Appeal found that the trial judge had erred in applying an incorrect test for determining whether a "full and satisfactory" explanation had been provided. The court held that the claimant's explanation, which included evidence of deficient initial legal advice from previous solicitors, reasonable steps taken by current solicitors to pursue the claim, and hindrances caused by the lack of cooperation and inadequate information from other parties, constituted a full and satisfactory explanation. The court reasoned that a reasonable person in the claimant's position, having received such advice and faced such obstacles, would likely have failed to comply with the statutory time requirements.

Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and extended the time for the filing of the Statement of Claim until 21 April 2006. The opponent was ordered to pay the claimant's costs of the summons for leave to appeal and the appeal, with a certificate under the Suitors Fund Act if entitled.

Orders

Orders of the court

1. Leave granted to appeal.; 2. Appeal allowed.; 3. Extend time for the filing of a Statement of Claim until 21/04/2006; 4. Opponent to pay the claimant's costs of the Summons for leave to appeal and of the appeal and to have a certificate under the Suitors Fund Act is so entitled

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.

CITATION:	KHOURY v. LINFOX AUSTRALIA PTY. LTD. [2006] NSWCA 51 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	20/02/2006
JUDGMENT DATE:	20 February 2006
JUDGMENT OF:	Beazley JA at 1,37; Tobias JA at 24
EX TEMPORE JUDGMENT DATE:	02/20/2006
DECISION:	1. Leave granted to appeal.; 2. Appeal allowed.; 3. Extend time for the filing of a Statement of Claim until 21/04/2006; 4. Opponent to pay the claimant's costs of the Summons for leave to appeal and of the appeal and to have a certificate under the Suitors Fund Act is so entitled
CATCHWORDS:	LIMITATION OF ACTION – test for extension of time under the Motor Accidents Compensation Act (NSW) 1999 is whether a “full and satisfactory” explanation for the delay has been provided by the claimant – full and satisfactory explanation provided – deficient initial legal advice by claimant’s previous solicitors - reasonable steps taken by current solicitors in pursuit of a claim - claim hindered by absence of cooperation and inadequate information on the part of the other parties – reasonable person would have failed to comply with statutory requirements - MOTOR ACCIDENTS – extension of time to commence proceedings – whether “full and satisfactory” explanation for delay - APPEAL – incorrect test applied by trial judge – not open to trial judge to find otherwise than that a full and satisfactory explanation had been given
LEGISLATION CITED:	Motor Accidents Compensation Act (NSW) 1999; ss 66(2), 109(1), 109(3)(a), 60C(2)
CASES CITED:	Figliuzzi v Yonan [2005] NSWCA 290 Russo v Aiello (2003) 215 CLR 643 Buller v Black (2003) 56 NSWLR 425 House v The King (1936) 55 CLR 499
PARTIES:	Michael Khoury (Claimant) Linfox Australia Pty. Limited (Opponent)
FILE NUMBER(S):	CA 40717/05
COUNSEL:	K. Andrews (Claimant) P. O'Connor (Opponent)
SOLICITORS:	Keddies (Claimant) McCulloch & Buggy (Opponent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC317/05
LOWER COURT JUDICIAL OFFICER:	Judge Duck