MacDonald v Martin - [2002] NSWCA 178

CITATION: MacDonald v Martin [2002] NSWCA 178

FILE NUMBER(S): CA 40097/02

HEARING DATE(S): 13 June 2002

JUDGMENT DATE:
13 June 2002

PARTIES :

Ian Harley Donald MacDonald and Hugh Phillips (Claimants)
Violet Helen Martin (as executrix of the Estate of the late Lawrence John Martin) and Patrick Paul King (Opponents)

JUDGMENT OF: Heydon JA at 1; Hodgson JA at 40; Campbell J at 43

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 99/01

LOWER COURT
JUDICIAL OFFICER : English DCJ

COUNSEL: Mr A M Colefax (Claimants)
Mr K W Andrews (Opponents)

SOLICITORS: Colin Biggers & Paisley (Claimants)
Brazel Moore & Daly (Opponents)

CATCHWORDS: Tort - negligence - Motor Accidents Act 1988 (NSW) - plaintiff deceased - action brought by estate - Procedure - limitation period - Motor Accidents Act 1988 (NSW) - survival or extinction of claim under Limitation Act 1969 (NSW) s 14(1)(a)-(b) - whether "loss of entitlement to claim" - sufficiency of evidence to determine question - factual characterisation - Practice - Supreme Court Rules Part 51 r 4B(1)(g) - concurrent hearing of application for leave to appeal and appeal - preparation of White Book - requirement that White - ND

LEGISLATION CITED: Limitation Act 1969
Motor Accidents Act 1988
Trade Practices Act 1974

CASES CITED:
Scarcella v Lettice (2000) 51 NSWLR 302
State of Western Australia v Bond Corporation Holdings Ltd (191) 28 FCR 68
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514

DECISION: The Summons is dismissed; the claimants are to pay the opponents' costs

CA 40097/02
DC 99/01

HEYDON JA
HODGSON JA
CAMPBELL AJA
13 June 2002

MacDONALD v MARTIN

Judgment

1 HEYDON JA: The first two defendants below have filed a Summons seeking leave to appeal against an order of English DCJ made on 30 January 2002 dismissing a Notice of Motion filed by them on 29 June 2001. Judgment was delivered orally, but had been reserved after a hearing on 28 August 2001.

2 On 29 April 2002 Handley JA refused a stay, but he ordered that the application for leave and the appeal be heard concurrently. Accordingly this Court was prepared today to hear full argument, to the intent that if leave were granted the appeal could be disposed of.

3 The plaintiff below is the executrix of the will of Laurence John Martin, who died in 1999. The first and second defendants are solicitors who were allegedly engaged by Mr Martin to commence proceedings on his behalf to recover damages for injuries allegedly sustained by him in an accident on or about 10 October 1998. The third defendant is another solicitor allegedly engaged for that purpose during 1997, but he sought no relief in the Notice of Motion and the outcome of this application for leave does not affect him.

4 The history is as follows.

5 On or about 10 October 1988 Mr Martin allegedly crossed a street in Manly and was struck by a motor vehicle. He allegedly suffered various injuries including…

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 MacDonald v Martin

Details

AGLC: MacDonald v Martin [2002] NSWCA 178
Case: [2002] NSWCA 178
Decision Date: 13 June 2002

CaseChat Overview and Summary

The plaintiff's estate brought a negligence claim against the defendant under the *Motor Accidents Act 1988* (NSW). The plaintiff had died prior to the commencement of proceedings, and the action was brought by the estate. The defendant raised a defence based on the limitation period prescribed by the *Motor Accidents Act 1988* (NSW).

The central legal issue before the court was whether the estate's claim was extinguished by the operation of s 14(1)(a) and (b) of the *Limitation Act 1969* (NSW), which deals with the survival of causes of action. Specifically, the court had to determine if the estate had suffered a "loss of entitlement to claim" within the meaning of that section, and whether there was sufficient evidence to make this factual determination. The matter also involved a procedural question concerning the concurrent hearing of an application for leave to appeal and the appeal itself, under Supreme Court Rules Part 51 r 4B(1)(g).

The court considered the factual characterisation of the claim and the application of the relevant statutory provisions. The reasoning focused on whether the estate's cause of action had survived the death of the plaintiff in accordance with the *Limitation Act 1969* (NSW). The court found that the estate had indeed lost its entitlement to claim.

Consequently, the Summons was dismissed, and the claimants were ordered to pay the opponents' costs.

Orders

Orders of the court

The Summons is dismissed; the claimants are to pay the opponents' costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	MacDonald v Martin [2002] NSWCA 178
FILE NUMBER(S):	CA 40097/02
HEARING DATE(S):	13 June 2002
JUDGMENT DATE:	13 June 2002
PARTIES :	Ian Harley Donald MacDonald and Hugh Phillips (Claimants) Violet Helen Martin (as executrix of the Estate of the late Lawrence John Martin) and Patrick Paul King (Opponents)
JUDGMENT OF:	Heydon JA at 1; Hodgson JA at 40; Campbell J at 43

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 99/01
LOWER COURT JUDICIAL OFFICER :	English DCJ

COUNSEL:	Mr A M Colefax (Claimants) Mr K W Andrews (Opponents)
SOLICITORS:	Colin Biggers & Paisley (Claimants) Brazel Moore & Daly (Opponents)
CATCHWORDS:	Tort - negligence - Motor Accidents Act 1988 (NSW) - plaintiff deceased - action brought by estate - Procedure - limitation period - Motor Accidents Act 1988 (NSW) - survival or extinction of claim under Limitation Act 1969 (NSW) s 14(1)(a)-(b) - whether "loss of entitlement to claim" - sufficiency of evidence to determine question - factual characterisation - Practice - Supreme Court Rules Part 51 r 4B(1)(g) - concurrent hearing of application for leave to appeal and appeal - preparation of White Book - requirement that White - ND
LEGISLATION CITED:	Limitation Act 1969 Motor Accidents Act 1988 Trade Practices Act 1974
CASES CITED:	Scarcella v Lettice (2000) 51 NSWLR 302 State of Western Australia v Bond Corporation Holdings Ltd (191) 28 FCR 68 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
DECISION:	The Summons is dismissed; the claimants are to pay the opponents' costs