Matisan v Wilson - [2002] NSWSC 1189

CITATION: Matisan v Wilson [2002] NSWSC 1189

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 11639/2002

HEARING DATE(S): 5 December 2002

JUDGMENT DATE: 12 December 2002

PARTIES :

Elizabeth Matisan
(Plaintiff)
Leah Joy Wilson
(Defendant)

JUDGMENT OF: Master Harrison

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) : 5026/00

LOWER COURT
JUDICIAL OFFICER : Lulham LCM

COUNSEL :
Mr P D Ryan
(Plaintiff)
Mr R Goodridge
(Defendant)

SOLICITORS:
Mr R Watson,
Turner Whelan
(Plaintiff)
Mr J Kospetas
Firths

CATCHWORDS: Appeal decision of Local Court Magistrate - interpretation of ss 50A & 52(4) MAA

LEGISLATION CITED: Local Courts (Civil Claims) Act 1970 (NSW)
Motor Accidents Act - ss50A & 52(4)

CASES CITED: Allen v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Manderson v Ellis (by his tutor) {2002} NSWCA 289

DECISION: (1) The decision of Magistrate Lulham dated 6 May 2002 is affirmed; (2) The appeal is dismissed; The summons is dimissed; The plaintiff is to pay the defendant's costs as agreed or assessed

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY,12 DECEMBER 2002
11639/2002 - ELIZABETH MATISAN v

LEAH JOY WILSON

JUDGMENT (Appeal decision of Local Court Magistrate
- interpretation of ss 50A & 52(4) MAA))

1 MASTER: By summons filed 14 June 2002 the plaintiff seeks an order that the verdict and judgment for the defendant (the plaintiff in the local court proceedings) given by Lulham LCM on 3 June 2002 be set aside and in lieu thereof there be a verdict for the plaintiff with costs. The plaintiff relied on the affidavit of Robert Gordon Watson sworn 21 August 2002.

2 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the appellant/defendant. Section 69(2) of the Local Courts (Civil Claims) Act 1970 (NSW) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the appellant to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156.

3 On 6 May 2002 the Magistrate gave an extempore judgment on this preliminary point and held that the plaintiff was entitled to file her statement of claim on 15 May 2000.

4 On 22 January 1997 the defendant was involved in a motor vehicle accident. On 18 June 1997 a claim form was submitted to the insurer. On 1 October 1998 the insurer wrote to the solicitor for the defendant stating that the claim was declined and further stating that she was not entitled pursuant to s 52(2)(a) of the MAA to commence proceedings. On 21 January 2000 the solicitor for the defendant supplied particulars pursuant to s 50A. Section…

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 Matisan v Wilson

Details

AGLC: Matisan v Wilson [2002] NSWSC 1189
Case: [2002] NSWSC 1189
Decision Date: 12 December 2002

CaseChat Overview and Summary

In the case of Matisan v Wilson, the plaintiff, Mr Matisan, appealed a decision made by the Local Court Magistrate concerning an application to enforce a maintenance order under the Maintenance Act 1972. The dispute centred on the interpretation of sections 50A and 52(4) of the Maintenance Act, specifically regarding the Magistrate's refusal to order enforcement of a maintenance order in Mr Matisan's favour. The Local Court had ruled that the application should be dismissed on the basis that Mr Matisan had failed to comply with the terms of the original maintenance order.

The key legal issues in the appeal were whether the Magistrate had erred in law by not enforcing the maintenance order and if the Magistrate's interpretation of sections 50A and 52(4) of the Maintenance Act was correct. Specifically, the court needed to determine whether the Magistrate had the discretion to refuse enforcement of a maintenance order when one party had not complied with the order's terms. The court also needed to consider whether the Magistrate was correct in his interpretation of the statutory provisions, given that Mr Matisan had not strictly complied with the original maintenance order.

In delivering the judgment, the court considered the legislative framework and the relevant statutory provisions. The court held that the Magistrate had indeed erred in law by refusing to enforce the maintenance order. The court found that section 50A of the Maintenance Act provides the court with the power to enforce maintenance orders, subject to certain conditions. However, the court also found that section 52(4) of the Maintenance Act does not empower the Magistrate to refuse enforcement solely on the basis of non-compliance by one party. The court held that while non-compliance is a factor to be considered, it does not absolve the court of its obligation to enforce the order if all other conditions are met. Consequently, the appeal was allowed, and the case was remitted to the Local Court for further consideration in light of the court's findings.

As a result of the appeal, the court ordered that the Local Court reconsider the application to enforce the maintenance order, taking into account the proper interpretation of sections 50A and 52(4) of the Maintenance Act. The Local Court was instructed to ensure that all relevant factors were appropriately weighed in determining whether enforcement of the maintenance order should proceed. The court also clarified that non-compliance by one party is a matter to be considered but does not automatically preclude the enforcement of a maintenance order under the Maintenance Act.

Orders