Millard v State Transit Authority

[2013] NSWCA 321

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 claim it is alleged that:

"On 21 August 2009 at 3.28pm I was trying to cross Anzac Parade city bound when I was struck by a bus, bounced onto a blue Corolla rego number xxxxxx which dragged me clear of the bus until they both stopped. I was in pain over my whole body, couldn't make myself understood and hopped and dragged myself off the road through a large group of people at the bus stop."

1. Before the primary judge there was uncontradicted evidence that no certificate had been obtained from the Claims Assessment and Resolution Service (CARS) pursuant to s 92 or s 94 of the Motor Accidents Compensation Act 1999 (the Act). There can be no dispute that Mr Millard by his statement of claim is making a claim for damages in respect of injury caused by the fault of the driver of a motor vehicle in its use or operation within the definition of "claim" in s 3 of the Act. Section 108(1) of the Act is in these terms:

"A claimant is not entitled to commence court proceedings against another person in respect of a claim unless:

(a) the Principal Claims Assessor has issued a certificate in respect of the claim under section 92 (Claims exempt from assessment), or

(b) a claims assessor has issued a certificate in respect of the claim under section 94 (Assessment of claims)."

1. That reflects a legislative policy that unless a motor vehicle claim is exempt it must first be assessed under CARS before any court proceedings are commenced. The operation of that provision is settled at law. The fact that it operates as an absolute provision is confirmed by Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231; (2003) 57 NSWLR 636, a decision to which Mr Gracie for the respondent referred.

1. Mr Millard has asserted in his handwritten summary of argument that his claim was exempt from CARS but there is nothing in the material to support the proposition that there has already been obtained a certificate either under s 92 or s 94.

1. In my view it follows therefore that the primary judge had no choice but to dismiss the proceedings. There is therefore no prospect of leave to appeal being granted if the Registrar's decision was set aside. It is not necessary in those circumstances to say anything about the other processes which the applicant has issued.

1. Because the underlying proceedings purportedly commenced in this Court cannot proceed by reference to s 108, a convenient course to take, dealing with the matter on its merits, is as discussed between the parties. First of all to rescind by consent the Registrar's order made on 22 April 2013 dismissing the proceedings. Secondly, to dismiss the application for leave to appeal and to dismiss both the amended notice of motion filed on 9 September 2013 by the applicant and the notice of motion filed on 7 September 2012 by the respondent. That course having been indicated to the parties, the respondent has proffered an undertaking that no steps will be taken to execute any costs order pending the successful determination of the Mr Millard's claim. The final order that I propose is that the proceedings in this Court be dismissed with costs but on the basis of the undertaking that Mr Gracie has offered on behalf of the respondent.

1. TOBIAS AJA: I agree.

1. LEEMING JA: Those therefore will be the orders of the Court.

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Decision last updated: 27 September 2013