McNamara v Fitzgibbon

CITATION:	McNamara v Fitzgibbon [2005] NSWCA 274
HEARING DATE(S):	16/08/05
JUDGMENT DATE:	16 August 2005
JUDGMENT OF:	Santow JA at 1; Ipp JA at 14; Campbell AJA at 45
DECISION:	(1) Leave to appeal granted (2) Appeal upheld (3) Decision of Hughes DCJ set aside (4) Order that Ms Fitzgibbon's application for the reinstatement of her claim be dismissed with costs (5) Order that Ms Fitzgibbon pay Ms McNamara's costs of the application for leave to appeal and the appeal (6) Ms Fitzgibbon to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled.

CATCHWORDS:	INSURANCE - Motor Accidents Compensation Act 1999 (NSW) - Reinstatement of claim under s 110 - Failure to commence proceedings within three-month notice period - Full and satisfactory explanation for failure. D
LEGISLATION CITED:	Interpretation Act 1987 (NSW), s 6 Legal Profession Act 1987 (NSW), s 198L Motor Accidents Compensation Act 1999 (NSW), ss 5(1)(b), 110, 66(2), 70(2) Interpretation Act 1987 (NSW), s 6
PARTIES:	Sally Anne McNamara (Claimant) Anne Elizabeth Fitzgibbon (Opponent)
FILE NUMBER(S):	CA 41012/04
COUNSEL:	A Black/M Hay (Claimant) P Frame (Opponent)
SOLICITORS:	Holman Webb (Claimant) Keddies (Opponent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3897/04
LOWER COURT JUDICIAL OFFICER:	Hughes DCJ

CA 41012/04
DC 3897/04

SANTOW JA
IPP JA
CAMPBELL AJA

Tuesday, 16 August 2005

SALLY ANNE McNAMARA v ANNE ELIZABETH FITZGIBBON

Judgment

1 SANTOW JA: I agree with Ipp JA both in his reasons and in the orders he proposes. I would however wish to add these observations. Amongst the objects of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”), reference may also be made to s5(1)(b) with its invocation to “encourage the early resolution of compensation claims”.

2 Section 6 of the Act requires that in the interpretation of a provision of the Act, a construction that would promote the objects of the Act is to be preferred to a construction that would not promote those objects.

3 The significance of that object in the present context can readily be appreciated when one draws a time line to reflect the forensic steps that are now mandated by the Act. A particular point in the time line to which s110 is directed is the period commencing eighteen months after the date of the motor accident to which the claim relates: see s110(1)(b).

4 Section 110(2) then provides that the claimant under the Act must comply with the notice in s110(1). This requires the claimant to commence court proceedings in respect of the claim, once the eighteen months to which I have referred has elapsed. It adds a further three months to the time line by which such proceedings must commence.

5 The effect of the construction which was pressed by the opponent in these proceedings was that for the period from the twenty-one months to which I have referred to thirty-six months (when the limitation period expires), there would be no provision in the Act which would fulfil the object to…