Millard v State Transit Authority

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Millard v State Transit Authority [2013] NSWCA 321

Hearing dates:

19 September 2013

Decision date:

19 September 2013

Before:

Leeming JA at [1];
Tobias AJA at [10]

Decision:

1. Rescind by consent the Registrar's order dismissing the Applicant's summons on 22 April 2013.

2. Dismiss the application for leave to appeal.

3. Dismiss both the Amended Notice of Motion filed by the Applicant Mr Millard on 9 September 2013 and the Notice of Motion filed by the Respondent State Transit filed on 3 September 2013.

4. Noting the undertaking by the Respondent not to take any steps to execute a costs order against Mr Millard pending the successful resolution of his claim, the proceedings be dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TRAFFIC LAW - proceedings commenced contrary to Motor Accidents Compensation Act 1999 s 108 - decision below plainly correct - proceedings in Court of Appeal dismissed

Legislation Cited:

Motor Accidents Compensation Act 1999
Uniform Civil Procedure Rules 2005

Cases Cited:

Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231; (2003) 57 NSWLR 636

Category:

Principal judgment

Parties:

William Millard (Applicant)
State Transit Authority (Respondent)

Representation:

Counsel:
JA Gracie (Respondent)
Solicitors:
Vardanega Roberts (Respondent)

File Number(s):

2012/362876

 Decision under appeal 

Date of Decision:

2012-11-16 00:00:00

Before:

Latham J

File Number(s):

2012/259574

Judgment

1. LEEMING JA: The applicant commenced proceedings in this Court seeking leave to appeal from the summary dismissal of his proceedings in the Common Law Division made by Latham J on 16 November 2012. Procedurally there is some complexity. The Registrar of the Court of Appeal dismissed the applicant's summons on 22 April 2013 pursuant to Uniform Civil Procedure Rules 2005 (UCPR) r 13.4 following his failure to appear.

1. On 9 September 2013 the applicant filed an amended notice of motion seeking "leave to re-open the appeal" and which also seeks leave to issue subpoenas against the respondent, its insurer, the NSW Police and the law firm Brydens.

1. It would be open to treat the motion as an application to review the Registrar's decision as the respondent suggests; however, in light of the constructive discussion between Bar and Bench as to a pragmatic way forward, it is possible and in my view therefore better to deal with the substance of the dispute between the parties rather than its procedural complexities.

1. The underlying proceeding, which never went to trial, arose from a motor vehicle accident on 21 August 2009 at Maroubra. The applicant was a pedestrian and the respondent was the owner and operator of an STA bus. In the statement of…