Linfox Australia Pty Ltd v Khoury (No 2)

NEW SOUTH WALES COURT OF APPEAL

CITATION:
LINFOX AUSTRALIA PTY LTD v KHOURY (NO. 2) [2008] NSWCA 24

FILE NUMBER(S):
40516/07

HEARING DATE(S):
4 March 2008

JUDGMENT DATE:
4 March 2008

EX TEMPORE DATE:
4 March 2008

PARTIES:
Linfox Australia Pty Ltd - Claimant
Michael Khoury - Opponent

JUDGMENT OF:
McColl JA Basten JA    

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 1664/06

LOWER COURT JUDICIAL OFFICER:
Judicial Registrar McDonald

LOWER COURT DATE OF DECISION:
4 May 2007

COUNSEL:
J G Stewart - Claimant
K W Andrews - Opponent

SOLICITORS:
McCulloch & Buggy - Claimant
Keddies - Opponent

CATCHWORDS:
LEAVE TO APPEAL – appeal from interlocutory judgment in District Court - refusal by Judicial Registrar of leave to file cross-claim – no evidence to explain delay in filing cross-claim – defendant had knowledge of proposed proceedings – appeal without real prospects of success

LEGISLATION CITED:
[<i>Motor Accidents Compensation Act</i>] 1999 (NSW), s 109

CATEGORY:
Principal judgment

CASES CITED:
[<i>Khoury v Linfox Australia Pty Ltd</i>] [2006] NSWCA 51
[<i>Maitland v Nationwide News Pty Limited</i>] [2004] NSWCA 155

TEXTS CITED:

DECISION:
(1)  Dismiss the application for leave to file out of time a summons seeking leave to appeal. (2)  Applicant to pay the respondent's costs, such costs to be assessed on an indemnity basis from 17 October 2007.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40516/07
DC 1664/06

McCOLL JA
BASTEN JA

4 March 2008

LINFOX AUSTRALIA PTY LTD v KHOURY (NO. 2)

Judgment

1. McCOLL JA:  I invite Basten JA to deliver the first judgment.

2. BASTEN JA:  As this matter is before this Court for the second time and has not yet reached a trial, it is necessary to identify the background facts by reference to the pleadings.  The immediate question for determination concerns the correctness of an order made by Judicial Registrar McDonald in the District Court refusing Linfox Australia Pty Ltd (“Linfox”) leave to file a cross-claim against Flexfleet Pty Ltd (“Flexfleet”).

3. The plaintiff claims that he was injured on 7 February 2001 whilst loading a trailer at a facility operated by Woolworths Ltd at Yennora.  The plaintiff alleges that he was injured when attempting to pull down the shutter at the back of the trailer, it becoming jammed and causing him to sustain an injury to his back.

4. For circumstances which are recounted in this Court’s earlier judgment, the present proceedings were not commenced against Linfox until 20 April 2006: see Khoury v Linfox Australia Pty Ltd [2006] NSWCA 51. Because the claim was covered by the Motor Accidents Compensation Act 1999 (NSW) the proceedings should have been commenced by 7 February 2004. As a result, the plaintiff required leave pursuant to s 109 of that Act in order to commence the proceedings. That leave was granted by this Court on appeal.

5. It is clear that the defendant, Linfox, was aware of the intended proceedings during 2004, at which stage solicitors for the plaintiff were seeking to identify…