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Manderson v Ellis

Manderson v Ellis

Case [2002] NSWCA 289 30 August 2002

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CITATION: Manderson v Ellis (by his Tutor) [2002] NSWCA 289

FILE NUMBER(S): CA 40840/01

HEARING DATE(S): 8 August 2002

JUDGMENT DATE:
30 August 2002

PARTIES :

Desmond MANDERSON (Appellant)
Arthur ELLIS (Respondent)

JUDGMENT OF: Santow JA at 1; Davies AJA at 51; McClellan J at 65

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 2607/01

LOWER COURT
JUDICIAL OFFICER : Patten DCJ

COUNSEL: D F Jackson, QC/ J J Ryan (Appellant)
S Norton, SC/ S Piedade (Respondent)

SOLICITORS: Sparke Helmore (Appellant)
Doherty & Partners (Respondent)

CATCHWORDS: LIMITATION OF ACTIONS - motor vehicle accidents - Full and satisfactory explanation for the delay - Whether by claimant or persons acting on behalf - provision of full details - Denial of liability - Whether proceedings can be commenced notwithstanding the failure to provide full details.

LEGISLATION CITED: District Court Rules Pt 9 r27; Pt 45
Motor Accidents Act 1988 (NSW); s3; s40; s40(2); s43; s43(2); s43(4); s43A(2); s43A(4); s43A(6)(c)(i); s43A(7); s50A; s50A(d); s52; s52(1); s52(1A); s52(1A)(b); s52(2); s52(2)(a); s52(2)(c); s52(3); s72; s79; s79A;
Supreme Court Rules Pt 63

CASES CITED:
Dandashli v Dandashli (Court of Appeal, 16 December 1996, unreported)
Diaz & Anor v Truong ([2002] NSWCA 265, 19 August 2002, unreported)
Guest v Southern & Anor (Studdert J, NSWSC, 22 September 1995, unreported)
Laidlaw & Anor v Touma [2002] NSWCA 190
Nicholas v Webb (No. 2) (1993) 19 MVR 65
Russo v Aiello (2002) 34 MVR 234

DECISION: Orders; (1) That the appeal be allowed and the judgment of Patten DCJ set aside; (2) That the Statement of Claim filed in the District Court be dismissed; (3) That the Respondent pay the costs of the Appellant on the appeal; (4) That the Appellant be released from his undertaking to pay the Respondent's costs of the appeal but make no order as to costs of the appeal.

CA 40840/01
DC 2607/01

SANTOW JA
DAVIES AJA
McCLELLAN AJA
30 AUGUST 2002

Desmond MANDERSON -v- Arthur R ELLIS (by his Tutor)

HEADNOTE

Facts:

Mr Ellis (the Respondent) had been injured after being struck by a motor vehicle driven by Mr Manderson (the Appellant) on the evening of 1 April 1998. Mr Ellis suffered numerous injuries, the most significant of which were brain damage, a delusional disorder and post-traumatic epilepsy. It was accepted that the injuries from the accident left him disabled.

Mr Ellis’ sister contacted solicitors on his behalf and retained them in relation to the matter within 6 months of the accident. The sister later became the tutor to Mr Ellis in the court proceedings. The solicitors failed to commence the claim within 6 months of the accident. Rather the claim was commenced some 18 months after the accident, making the claim a deemed late claim under the Motor Accidents Act 1988 (“the Act”). Second, those acting for Mr Ellis had not given full details specifically of the claim, including the claims eventually made in relation to domestic care, to Mr Manderson or his insurer. The insurer had…

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 Manderson v Ellis

Details

AGLC: Manderson v Ellis [2002] NSWCA 289
Case: [2002] NSWCA 289
Decision Date: 30 August 2002

CaseChat Overview and Summary

Manderson v Ellis concerned an appeal to the New South Wales Court of Appeal regarding the application of limitation periods in motor vehicle accident claims. The dispute centred on whether the appellant, Mr Ellis, had provided a "full and satisfactory explanation" for the delay in commencing proceedings, as required by the relevant legislation, despite not providing full details of the accident and denying liability. The primary judge had allowed the proceedings to continue.

The Court of Appeal was required to determine whether the appellant had met the statutory threshold for excusing the delay in commencing proceedings. Specifically, the court had to consider whether the failure to provide full details of the accident and the denial of liability constituted a sufficient impediment to the commencement of proceedings that would warrant an extension of time, or if the explanation offered was indeed "full and satisfactory" in the circumstances.

The Court of Appeal found that the appellant had not provided a full and satisfactory explanation for the delay. The court reasoned that the legislative requirement for a "full and satisfactory explanation" necessitates more than a mere assertion of delay; it requires a genuine and comprehensive account of the reasons for the lateness. The appellant's failure to provide full details of the accident and his denial of liability were not, in the court's view, sufficient grounds to excuse the significant delay in commencing proceedings. The court applied the principles of statutory interpretation to the relevant limitation provisions, emphasising the importance of timely claims.

Consequently, the Court of Appeal allowed the appeal, set aside the judgment of the District Court, and dismissed the Statement of Claim. The respondent was ordered to pay the costs of the appeal.

Orders

Orders of the court

Orders; (1) That the appeal be allowed and the judgment of Patten DCJ set aside; (2) That the Statement of Claim filed in the District Court be dismissed; (3) That the Respondent pay the costs of the Appellant on the appeal; (4) That the Appellant be released from his undertaking to pay the Respondent's costs of the appeal but make no order as to costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

Manderson v Ellis [2002] NSWCA 289

Most Recent Citation

Perdis v Nominal Defendant [2003] QCA 555

Cases citing this decision · 10 of 10 shown

Walker v Howard
[2009] NSWCA 408 Para 4

…Shortly after Diaz in 2002, in Manderson v Ellis [2002] NSWCA 289; 37 MVR 214, a differently constituted Court of Appeal (Santow JA, Davies AJA and McClellan J, as the Chief Judge then was), dealt with the provision in the context of a brain damaged claimant. Santow JA at 219 [18] discussed Diaz and favoured the vi…
Davis v Nominal Defendant
[2008] NSWDC 97 Para 16

…Southern (NSWSC, 22 September 1995, unreported), Hodgson JA in Diaz v Truong [2002] NSWCA 265 at [95] - [96] and of Santow JA in Manderson v Ellis [2002] NSWCA 289 at [16] - [18]. As I understand the submissions of senior counsel for the plaintiff, the issue remains open. I consider, however, that I should follow…
Smith v Grant
[2006] NSWCA 244 Para 23

…A second matter, Manderson v Ellis (by his Tutor) (2002) 37 MVR 214 was heard before judgment was handed down in Diaz , but decided after Diaz . The case apparently involved the same solicitors and also a plaintiff with a disability including brain damage sufficient to prevent him giving instructions. Santow JA referred to Diaz , noting…
Vorillas v Haratsaris
[2005] NSWCA 109 Para 9

…e provisions of s50A. The judgment in Diaz was delivered on 19 August 2002, nine days before the proceedings were commenced. In Manderson v Ellis [2002] NSWCA 289, in which judgment was delivered on 30 August 2002, two days after the proceedings had commenced, the Court of Appeal held that this view of the law was…
Blackburn v Allianz Australia Insurance Ltd
[2004] NSWCA 385

…King (1936) 55 CLR 499 James v Commissioner for Railways (1963) 63 SR (NSW) 373 Laidlaw v Touma [2002] 36 MVR 388 Mancini v Thompson [2002] NSWCA 38 Manderson v Ellis (2002) 37 MVR 214 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Moran v McMahon (1985) 3 NSWLR 700 O'Brien v O'Brien (1995)…
Williams v Rodway
[2004] NSWSC 438

…s40A, s50A, s52(1A)(b), s72 CASES CITED: Atikulla v Sefton [2001] NSWCA 385; 53 NSWLR 574 Griffiths v Kerkemeyer (1977) 139 CLR 161 Manderson v Ellis [2002] NSWCA 289; 37 MVR 214 PARTIES : Gordon Douglas Williams - Plaintiff Martin John Rodway - 1st Defendant Reece Williams - 2nd Defendant FILE NUMBER(S): SC 20268/…
Perdis v Nominal Defendant
[2003] QCA 555 Para 1

…n particular, to Re Tonks [1999] 2 QdR 671 at 678, Sophron v Nominal Defendant (1957) 96 CLR 469 and Manderson v Ellis (2002) 37 MVR 214 at 219, 226; [2002] NSWCA 289 at [18], [58] - [60]. Reference may also be made, in this respect, to Hall v Nominal Defendant (1966) 117 CLR 423 at 435, Kaats v Caelers [1966] QdR…
Russo v Aiello
[2003] HCA 53 Para 17

…lanation actually provided by or on behalf of an injured party will be strong evidence of the explanation which the person has ." [44]See for example Manderson v Ellis (2002) 37 MVR 214 at 219 [19] per Santow JA, 225 [54] per Davies AJA. [45] Russo v Aiello (2001) 34 MVR 234 at 236 [6]. [46](2002) 37 MVR 214 at 225 [54] (e…
Perdis v Nominal Defendant
[2003] QDC 154 Para 1

…y by the New South Wales Court of Appeal in relation to a provision of the Motor Accidents Act 1988 (New South Wales), in Manderson v Ellis [2002] NSWCA 289 at [18] per Santow JA, [58]–[60] per Davies AJA.…
Matisan v Wilson
[2002] NSWSC 1189

…17 In Manderson v Ellis (by his tutor) [2002] NSWCA 289 (30 August 2002), the Court of Appeal examined the operation of ss.50A and 52(2) of the MAA. Santow JA at paragraph 32 stated that the question then is whether those events in s.52(2) are capable of overriding the prohibition in s.50A on commencing court proce…

View all 10 citing cases →

Cases cited in this decision · 3 of 3 shown

Russo v Aiello
[2003] HCA 53

…v Southern & Anor (Studdert J, NSWSC, 22 September 1995, unreported) Laidlaw & Anor v Touma [2002] NSWCA 190 Nicholas v Webb (No. 2) (1993) 19 MVR 65 Russo v Aiello (2002) 34 MVR 234 DECISION: Orders; (1) That the appeal be allowed and the judgment of Patten DCJ set aside; (2) That the Statement of Claim filed in the Di…
Diaz v Truong
[2002] NSWCA 265

…); s72; s79; s79A; Supreme Court Rules Pt 63 CASES CITED: Dandashli v Dandashli (Court of Appeal, 16 December 1996, unreported) Diaz & Anor v Truong ([2002] NSWCA 265, 19 August 2002, unreported) Guest v Southern & Anor (Studdert J, NSWSC, 22 September 1995, unreported) Laidlaw & Anor v Touma [2002] NSWCA 190 Nicho…
Laidlaw v Touma
[2002] NSWCA 190

…uong ([2002] NSWCA 265, 19 August 2002, unreported) Guest v Southern & Anor (Studdert J, NSWSC, 22 September 1995, unreported) Laidlaw & Anor v Touma [2002] NSWCA 190 Nicholas v Webb (No. 2) (1993) 19 MVR 65 Russo v Aiello (2002) 34 MVR 234 DECISION: Orders; (1) That the appeal be allowed and the judgment of Patten…

Legislation cited in this decision · 1

Motor Accidents Act 1988 (NSW)
1 mention

CITATION:	Manderson v Ellis (by his Tutor) [2002] NSWCA 289
FILE NUMBER(S):	CA 40840/01
HEARING DATE(S):	8 August 2002
JUDGMENT DATE:	30 August 2002
PARTIES :	Desmond MANDERSON (Appellant) Arthur ELLIS (Respondent)
JUDGMENT OF:	Santow JA at 1; Davies AJA at 51; McClellan J at 65

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 2607/01
LOWER COURT JUDICIAL OFFICER :	Patten DCJ

COUNSEL:	D F Jackson, QC/ J J Ryan (Appellant) S Norton, SC/ S Piedade (Respondent)
SOLICITORS:	Sparke Helmore (Appellant) Doherty & Partners (Respondent)
CATCHWORDS:	LIMITATION OF ACTIONS - motor vehicle accidents - Full and satisfactory explanation for the delay - Whether by claimant or persons acting on behalf - provision of full details - Denial of liability - Whether proceedings can be commenced notwithstanding the failure to provide full details.
LEGISLATION CITED:	District Court Rules Pt 9 r27; Pt 45 Motor Accidents Act 1988 (NSW); s3; s40; s40(2); s43; s43(2); s43(4); s43A(2); s43A(4); s43A(6)(c)(i); s43A(7); s50A; s50A(d); s52; s52(1); s52(1A); s52(1A)(b); s52(2); s52(2)(a); s52(2)(c); s52(3); s72; s79; s79A; Supreme Court Rules Pt 63
CASES CITED:	Dandashli v Dandashli (Court of Appeal, 16 December 1996, unreported) Diaz & Anor v Truong ([2002] NSWCA 265, 19 August 2002, unreported) Guest v Southern & Anor (Studdert J, NSWSC, 22 September 1995, unreported) Laidlaw & Anor v Touma [2002] NSWCA 190 Nicholas v Webb (No. 2) (1993) 19 MVR 65 Russo v Aiello (2002) 34 MVR 234
DECISION:	Orders; (1) That the appeal be allowed and the judgment of Patten DCJ set aside; (2) That the Statement of Claim filed in the District Court be dismissed; (3) That the Respondent pay the costs of the Appellant on the appeal; (4) That the Appellant be released from his undertaking to pay the Respondent's costs of the appeal but make no order as to costs of the appeal.