Margaret Baker v Ross Baker - [2017] NSWDC 93

District Court

New South Wales

Medium Neutral Citation: Margaret Baker v Ross Baker [2017] NSWDC 93
Hearing dates: 7 April 2017
Date of orders: 05 May 2017
Decision date: 05 May 2017
Jurisdiction: Civil
Before: Montgomery DCJ
Decision:
(1) The defendant Notice of Motion filed 13 December 2016 be dismissed.

(2) Grant leave to the plaintiff pursuant to s 109 of the Motor Accidents Compensation Act 1999 (NSW) to commence proceedings by Statement of Claim filed 13 October 2016.
(3) The plaintiff’s costs of the defendant’s Notice of Motion filed 13 December 2016 and the plaintiff’s Notice of Motion filed 27 January 2017 be the plaintiff’s costs in the cause.
Catchwords: “full and satisfactory explanation”; “knowledge and belief”
Legislation Cited: Motor Accidents Compensation Act 1999, ss 72, 73 and 109
Cases Cited: Dijakovic v Perez [2015] NSWCA 174
Sauer v Allianz Australia Insurance [2006] NSWCA 364; (2006) 47 MVR 220
Itek Graphix Pty. Limited v Elliott [2002] NSWCA 104
Smith v Grant [2006] NSWCA 244
Salido v Nominal Defendant (1993) 32 NSWLR 524; (1993) 18 MVR 1; (1993) Aust Torts Reports 81-258
State of New South Wales v Gillett [2012] NSWCA 83
Baker-Morrison v State of New South Wales [2009] NSWCA 35
Karambelas v Zaknic (No. 2) [2014] NSWCA 433
Category: Procedural and other rulings
Parties: Margaret Baker (Plaintiff)
Ross Baker (Defendant)
Representation:
Counsel:
Mr David Baran (Plaintiff)
Mr Anthony Renshaw (Defendant)
Solicitors:
John McGuire & Associates (Plaintiff)
Sparke Helmore Lawyers (Defendant)

File Number(s): 2016/00305409
Publication restriction: None

Judgment

By Statement of Claim filed 13 October 2016, Margaret Baker sues for damages consequent of personal injuries suffered by her in a motor vehicle accident on 8 December 2006 when she was a front seat passenger in a motor vehicle driven by her husband, Ross Baker. The negligence alleged is that Mr Baker drove whilst knowing that he suffered a medical condition which made him prone to blackouts. This in fact occurred, causing him to lose control of the motor vehicle and crash.
Quite obviously the proceedings were commenced nearly 10 years after the accident. The Notices of Motion determined in these reasons are brought pursuant to ss 72 and 73 and 109 Motor Accidents Compensation Act 1999 NSW (MACA), which sections deal respectively with the time limits for making a claim and for commencement of Court proceedings.
There are two Notices of Motion for determination, as follows:

filed by the defendant on 13 December 2016 seeking that the proceedings be dismissed for breach of ss 72 and 73 MACA, and separately that the proceedings be dismissed for breach of s 109 MACA; and

filed for the plaintiff on 27 January 2017, that the time for filing the Statement of Claim be extended to 14 October 2016 pursuant to s 109 MACA.

The defendant seeks that the plaintiff pay its costs of the motion and of the proceedings. The plaintiff seeks an order that costs be costs in the cause.

On 4 October 2016, a Certificate of Exemption…

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 Margaret Baker v Ross Baker

Details

AGLC: Margaret Baker v Ross Baker [2017] NSWDC 93
Case: [2017] NSWDC 93
Decision Date: 05 May 2017

CaseChat Overview and Summary

In the matter of Margaret Baker v Ross Baker, the plaintiff sought damages for injuries sustained in a motor vehicle accident. The case was heard in the Supreme Court of New South Wales. The plaintiff's initial claim was dismissed by the defendant on the basis that the plaintiff had not provided a full and satisfactory explanation for her failure to file within the statutory limitation period. The plaintiff then applied for leave to commence proceedings, citing a genuine belief that the defendant had accepted liability for the accident. The defendant opposed the plaintiff's application, arguing that the plaintiff had not demonstrated knowledge and belief as required by the relevant statute.

The court considered whether the plaintiff had provided a satisfactory explanation for her delay in filing proceedings and whether she had demonstrated knowledge and belief in her claim that the defendant had accepted liability. The court held that the plaintiff had provided a satisfactory explanation for her delay, and that the plaintiff had demonstrated a genuine belief that the defendant had accepted liability for the accident. The court found that the plaintiff had acted reasonably and with due diligence in bringing her claim, and that the defendant's opposition to the plaintiff's application was without merit.

The defendant's Notice of Motion filed 13 December 2016 was dismissed. Leave was granted to the plaintiff to commence proceedings by Statement of Claim filed 13 October 2016. The plaintiff's costs of the defendant's Notice of Motion filed 13 December 2016 and the plaintiff's Notice of Motion filed 27 January 2017 were the plaintiff's costs in the cause.

Orders

Orders of the court

(1) The defendant Notice of Motion filed 13 December 2016 be dismissed.

(2) Grant leave to the plaintiff pursuant to s 109 of the Motor Accidents Compensation Act 1999 (NSW) to commence proceedings by Statement of Claim filed 13 October 2016.

(3) The plaintiff’s costs of the defendant’s Notice of Motion filed 13 December 2016 and the plaintiff’s Notice of Motion filed 27 January 2017 be the plaintiff’s costs in the cause.

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.

Medium Neutral Citation:	Margaret Baker v Ross Baker [2017] NSWDC 93
Hearing dates:	7 April 2017
Date of orders:	05 May 2017
Decision date:	05 May 2017
Jurisdiction:	Civil
Before:	Montgomery DCJ
Decision:	(1) The defendant Notice of Motion filed 13 December 2016 be dismissed. (2) Grant leave to the plaintiff pursuant to s 109 of the Motor Accidents Compensation Act 1999 (NSW) to commence proceedings by Statement of Claim filed 13 October 2016. (3) The plaintiff’s costs of the defendant’s Notice of Motion filed 13 December 2016 and the plaintiff’s Notice of Motion filed 27 January 2017 be the plaintiff’s costs in the cause.
Catchwords:	“full and satisfactory explanation”; “knowledge and belief”
Legislation Cited:	Motor Accidents Compensation Act 1999, ss 72, 73 and 109
Cases Cited:	Dijakovic v Perez [2015] NSWCA 174 Sauer v Allianz Australia Insurance [2006] NSWCA 364; (2006) 47 MVR 220 Itek Graphix Pty. Limited v Elliott [2002] NSWCA 104 Smith v Grant [2006] NSWCA 244 Salido v Nominal Defendant (1993) 32 NSWLR 524; (1993) 18 MVR 1; (1993) Aust Torts Reports 81-258 State of New South Wales v Gillett [2012] NSWCA 83 Baker-Morrison v State of New South Wales [2009] NSWCA 35 Karambelas v Zaknic (No. 2) [2014] NSWCA 433
Category:	Procedural and other rulings
Parties:	Margaret Baker (Plaintiff) Ross Baker (Defendant)
Representation:	Counsel: Mr David Baran (Plaintiff) Mr Anthony Renshaw (Defendant) Solicitors: John McGuire & Associates (Plaintiff) Sparke Helmore Lawyers (Defendant)
File Number(s):	2016/00305409
Publication restriction:	None