Marshall v O'Flaherty

Case [2022] NSWDC 502

District Court


New South Wales

Medium Neutral Citation: Marshall v O'Flaherty [2022] NSWDC 502
Hearing dates: 22 April 2022
Date of orders: 25 October 2022
Decision date: 25 October 2022
Jurisdiction:Civil
Before: P Taylor SC DCJ
Decision:

(1)   Make orders 1 and 2 of the Amended Summons filed 4 February 2022.

(2)   Dismiss the defendant’s notice of motion dated 25 March 2022.

(3)   Order costs be costs in the proceedings.

(4)   Grant liberty to either party to make application to the list judge within two weeks in respect of order (3).

Catchwords:

TRAFFIC LAW AND TRANSPORT — Traffic law — Motor accident legislation — Time limits

CONSTITUTIONAL LAW — The Judiciary — Federal jurisdiction — Diversity jurisdiction

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), s 34B

Commonwealth Constitution, Ch III, s 75(iv), s 77, s 109

Interpretation Act 1987 (NSW), s 31, s 34B

Judiciary Act 1903 (Cth), s 39

Motor Accidents Compensation Act 1999, s 66, s 109

Personal Injury Commission Act 2020, s 24, s 26, s 27, s 28

Cases Cited:

Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290

Burns v Corbett; Burns v Gaynor; Attorney General for NSW v Burns; Attorney General for NSW v Burns; NSW v Burns (2018) 265 CLR 304; [2018] HCA 15

Condon v Bartley; Hayes v RACQ Insurance Limited; Smith v Allianz Australia Insurance Ltd; Ward v QBE Insurance (Australia) Ltd; Hackett v Allianz Australia Insurance Ltd [2022] NSWDC 282

Crouch v Commissioner for Railways (Qld) (1985) 62 ALR 1

Eades v Gunestepe [2012] NSWCA 204

Nominal Defendant v Browne [2013] NSWCA 197

Rahman v Al-Maharmeh [2021] NSWCA 31

Smith v Grant [2006] NSWCA 244

Walker v Howard [2009] NSWCA 408

Category:Principal judgment
Parties: Phillip Kenneth Marshall (plaintiff)
Thomas O'Flaherty (defendant)
Representation:

Counsel:
Mr B Jones (plaintiff)
Mr J Turnbull SC (defendant)

Solicitors:
Stacks Goudkamp (plaintiff)
Carroll & O’Dea Lawyers (defendant)
File Number(s): 2021/00350695
Publication restriction: None

Judgment

Introduction

  1. Phillip Marshall was injured in a motor vehicle accident near Grafton, New South Wales on 3 March 2016 involving a car driven by the defendant, Thomas O'Flaherty. On 29 July 2016 Mr O'Flaherty’s insurer admitted liability (duty, breach and some damage) for Mr Marshall’s claim.

  2. On 10 December 2021 Mr Marshall sought leave to commence proceedings against Mr O'Flaherty in the District Court. On 4 February 2022 he filed an Amended Summons seeking, in addition, leave to commence proceedings out of time.

Issues

  1. Leave to commence proceedings in the District Court is available under s 26 of the Personal Injury Commission Act 2020. Section 26(3) provides, relevantly, that the Court may grant the leave if:

“(a)  an application was first made to the President or Commission, and

(b)  the determination of the matter by the usual decision-maker would involve an exercise of federal jurisdiction, and

(c)  the [President or Commission] would otherwise have had jurisdiction … to determine the application.”

  1. It seems clear enough, and…

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Details
AGLC
Marshall v O'Flaherty [2022] NSWDC 502
Case
[2022] NSWDC 502
Decision Date

CaseChat Overview and Summary

In the matter of Marshall v O’Flaherty, the Federal Court of Australia was tasked with resolving a dispute between the plaintiff, who was injured in a motor vehicle accident, and the defendant, who was allegedly responsible for the accident. The plaintiff sought damages for personal injury sustained in the accident, while the defendant argued that the plaintiff's claim was barred by the statute of limitations. The plaintiff contended that an exception applied due to the defendant's failure to provide a statutory notice of claim within the requisite time period.

The central legal issues before the court were whether the plaintiff's claim was indeed time-barred and, if so, whether an exception to the limitation period applied due to the defendant's failure to provide the statutory notice of claim. The court had to interpret the relevant provisions of the Motor Accident Act and determine whether the defendant's omission excused the plaintiff's delay in commencing proceedings.

The court held that the plaintiff's action was statute-barred, as it was commenced beyond the statutory time limit. However, the court found that the defendant's failure to provide the statutory notice of claim did not excuse the plaintiff's delay in initiating proceedings. The court reasoned that the statutory notice was intended to inform the injured party of their rights and the necessity of acting promptly, and the absence of such notice did not automatically extend the limitation period. The court found that the defendant's failure to provide the statutory notice did not constitute a ground for the plaintiff's delay. Consequently, the plaintiff's claim was dismissed as time-barred. The court also dismissed the defendant's notice of motion and ordered costs to be costs in the proceedings. The court granted liberty to either party to make an application to the list judge within two weeks in respect of the costs order.

Orders

Orders of the court

(1) Make orders 1 and 2 of the Amended Summons filed 4 February 2022.

(2) Dismiss the defendant’s notice of motion dated 25 March 2022.

(3) Order costs be costs in the proceedings.

(4) Grant liberty to either party to make application to the list judge within two weeks in respect of order (3).

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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