Laidlaw v Touma - [2002] NSWCA 190

NEW SOUTH WALES COURT OF APPEAL

CITATION: Laidlaw & Anor v Touma [2002] NSWCA 190

FILE NUMBER(S):
40580/01

HEARING DATE(S): 9 May 2002

JUDGMENT DATE: 24/06/2002

PARTIES:
Jeremy John Laidlaw (First Claimant)
Robyn Elizabeth Laidlaw (Second Claimant)
Carolin Yvonne Touma (Opponent)

JUDGMENT OF: Handley JA Stein JA Davies AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2053/99

LOWER COURT JUDICIAL OFFICER: Naughton DCJ

COUNSEL:
J D Hislop QC/J T de Berg (First and Second Claimants)
R Colquhoun (Opponent)

SOLICITORS:
PricewaterhouseCoopers Legal (First and Second Claimants)
Masons Solicitors (Opponent)

CATCHWORDS:
MOTOR VEHICLE ACCIDENT - time limit to commence proceedings for damages expired - application to extend time sought - whether evidence established a 'full and satisfactory' explanation for the delay - whether threshold likely to be met - prejudice to the claimants - ND

LEGISLATION CITED:
Motor Accidents Act 1988, s 40, s 52, s 79A

DECISION:
1) Leave to appeal granted 2) Appeal allowed 3) Judgment of Naughton DCJ of 4 July 2001 set aside and, in lieu thereof, order that the opponent's Notice of Motion to extend time be dismissed with costs 4) Opponent to pay the claimants' costs of the appeal but receive a certificate under the Suitor's Fund Act if she is otherwise entitled thereto.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40580/01
DC 2053/99
HANDLEY JA
STEIN JA
DAVIES AJA
Monday, 24 June 2002

LAIDLAW & ANOR v TOUMA

Facts
The opponent, Ms Touma, suffered injury in a motor vehicle accident. The time limit to commence proceedings with respect to her claim for damages arising out of the accident is 3 years. The time limit expired on 9 January 1999.
A motion seeking an extension of time to file a Statement of Claim under s 52(4) of the Motor Accidents Act 1988 (the Act) was heard by Cooper DCJ on 5 July 1999. His Honour found that a ‘full and satisfactory’ explanation for the delay was given, however, he was not satisfied that the threshold requirement for non-economic loss was likely to be exceeded by Ms Touma. Accordingly, he did not grant an extension of time.
More than 18 months later the opponent made a second application to extend time for filing of her Statement of Claim. This application was heard before Naughton DCJ on 4 July 2001. His Honour granted leave having found that the delay had been satisfactorily explained and that Ms Touma’s damages were likely to reach the threshold.
On appeal
The claimants submit that Naughton DCJ should not have found that there had been a full and satisfactory explanation for the delay because the evidence did not establish this. The claimants further contend that his Honour should not have found on the evidence that the threshold was likely to be reached. Lastly, it is submitted that when his Honour came to exercise his discretion to grant the extension, he failed to take into consideration the significant prejudice to the claimants.
Held (per Stein…

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 Laidlaw v Touma

Details

AGLC: Laidlaw v Touma [2002] NSWCA 190
Case: [2002] NSWCA 190
Decision Date: 24 June 2002

CaseChat Overview and Summary

The appeal in *Laidlaw v Touma* concerned an application to extend the time for commencing proceedings for damages arising from a motor vehicle accident. The primary dispute revolved around whether the applicant had provided a "full and satisfactory" explanation for the delay in filing the claim, and whether the threshold for granting such an extension was met, considering potential prejudice to the claimants. The matter was heard on appeal.

The central legal issue before the court was whether the primary judge erred in granting an extension of time to commence proceedings, despite the expiry of the statutory limitation period. This required the court to assess the adequacy of the explanation provided for the delay and to weigh the competing interests of the applicant in pursuing their claim against the potential prejudice to the respondents.

The appellate court found that the explanation for the delay was not sufficiently full and satisfactory to justify an extension of time. The court applied the principles governing applications for extensions of time under the relevant legislation, emphasizing the need for a compelling reason for the delay and a careful consideration of prejudice. The court concluded that the primary judge had misapplied these principles.

Consequently, the appeal was allowed, the judgment of the primary judge was set aside, and the opponent's application to extend time was dismissed with costs. The opponent was also ordered to pay the claimants' costs of the appeal, subject to any entitlement to a certificate under the Suitor's Fund Act.

Orders

Orders of the court

1) Leave to appeal granted 2) Appeal allowed 3) Judgment of Naughton DCJ of 4 July 2001 set aside and, in lieu thereof, order that the opponent's Notice of Motion to extend time be dismissed with costs 4) Opponent to pay the claimants' costs of the appeal but receive a certificate under the Suitor's Fund Act if she is otherwise entitled thereto.

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.