Nasr v NRMA Insurance - [2006] NSWSC 1018

CITATION: Nasr v NRMA Insurance [2006] NSWSC 1018

HEARING DATE(S): 27 September 2006

JUDGMENT DATE :
29 September 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The appeal is dismissed; (2) The orders of the Magistrate Lulham dated 4 October 2005 are affirmed; (3) The summons filed 8 June 2006 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS: Appeal decision of Local Court Magistrate - non-appearance - Statement of Claim struck out

LEGISLATION CITED: Local Courts Act 1982 - s 73

CASES CITED: Allan v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Carr v Neill [1999] NSWSC 1263
Devries v Australian National Railways Commission (1993) 177 CLR 472
Kearns & Anor v Fair Trading Tribunal of NSW & Anor [2001] NSWSC 951
Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2002] NSWSC 1153
R L & D Investments Pty Ltd v Bisby (2002) 37 MVR 479; [2002] NSWSC 1082
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588
Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405

PARTIES: Nabil Nasr - Plaintiff
NRMA Insurance Limited - Defendant

FILE NUMBER(S): SC 12940/2006

COUNSEL: Ms K E Day - Defendant

SOLICITORS: Mr N Nasr - Plaintiff in person
Mason Black Lawyers - Defendant

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 9222/04

LOWER COURT JUDICIAL OFFICER : Lulham LCM

LOWER COURT DATE OF DECISION: 4 October 2005

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 29 SEPTEMBER 2006
12940/2006 - NABIL NASR v NRMA INSURANCE

LIMITED

JUDGMENT (Appeal decision of Local Court Magistrate
- non-appearance - Statement of Claim

struck out)

1 HER HONOUR: By summons filed 8 June 2006, the plaintiff Nabil Nasr seeks to appeal the decision of His Honour Lulham LCM dated 4 October 2005. Mr Nasr claims that he was overseas when the Local Court struck out his case against the defendant, NRMA Insurance Limited (NRMA Insurance). NRMA Insurance rejected payment of Mr Nasr’s claim for his car after it was burnt on 6 July 2004. Mr Nasr appeared unrepresented and has written a letter dated 23 September 2006. NRMA Insurance relied on the affidavit of M Candan Koyuncu dated 13 July 2006.

2 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73 of the Local Courts Act 1982 (formerly Act No 11 1970, section 69 (2) and (2A)) 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 plaintiff 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)…

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.

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Details

Case: [2006] NSWSC 1018
Decision Date: 29 September 2006

CaseChat Overview and Summary

In this case, the appellant, Nasr, sought to appeal a decision of the Local Court Magistrate to strike out a Statement of Claim in an action brought against NRMA Insurance. The dispute arose from a motor vehicle accident for which Nasr sought damages for injuries sustained. The Local Court Magistrate struck out the Statement of Claim due to Nasr's non-attendance at the hearing, and Nasr appealed this decision.

The legal issues the court had to determine were whether the Local Court Magistrate had the authority to strike out the Statement of Claim for non-attendance and whether the decision was just and equitable. The appellant argued that the striking out of the Statement of Claim was unjust and that the court had not considered all the relevant circumstances of the case.

The court held that the Local Court Magistrate did have the authority to strike out the Statement of Claim for non-attendance. However, the court also found that the Magistrate had failed to adequately consider the reasons for Nasr's non-attendance and the potential for an extension of time. The court concluded that the decision to strike out the Statement of Claim was not just and equitable and remitted the matter to the Local Court for reconsideration. The court ordered that the Local Court should consider the reasons for Nasr's non-attendance and whether an extension of time should be granted.

Orders