Nguyen v Tran (No 2)

[2018] NSWCA 274

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Nguyen v Tran (No 2) [2018] NSWCA 274
Hearing dates:	On the papers
Decision date:	16 November 2018
Before:	Beazley P; Emmett AJA; Bellew J
Decision:	Judgment for the appellant against the respondent in the sum of $5,908.30 pursuant to the Motor Accidents Compensation Act 1999 (NSW), s 118.
Catchwords:	CIVIL PROCEDURE – procedural irregularity – whether the appellant should bring separate proceedings – whether the Court should consider the appellant’s claim under s 118 of the Motor Accidents Compensation Act 1999 (NSW) to recover monies paid to the respondent under s 83 RESTITUTION – statutory claims – false or misleading statements – Motor Accidents Compensation Act 1999 (NSW)
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 83, 118
Category:	Consequential orders (other than Costs)
Parties:	Thi Thuy Tien Nguyen (Appellant) Van Nam Tran (Respondent)
Representation:	Counsel: K Rewell SC (Appellant) L King SC; J Trainor (Respondent)     Solicitors: Hall & Wilcox (Appellant) Than & Associates (Respondent)
File Number(s):	2017/381638
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 23 November 2017 Before: Norton SC DCJ File Number(s): 2016/169835

Judgment

1. THE COURT: The Court gave judgment in this matter on 28 September 2018 in which it set aside orders made in favour of the respondent in the District Court and entered judgment for the appellant: Nguyen v Tran [2018] NSWCA 215. The effect of the Court’s judgment was that the respondent’s claim for damages that he alleged he had suffered in a motor vehicle accident on 20 November 2012 when he was a passenger in the appellant’s car was rejected.

2. At the time that the Court gave its principal judgment, there remained outstanding the appellant’s claim, pursuant to the Motor Accidents Compensation Act 1999 (NSW), s 118, for monies paid to the respondent under s 83 of that Act by way of medical expenses in the sum of $5,908.30. Given that the primary judge had found in favour of the respondent, the primary judge had not determined the appellant’s claim for recovery of those monies.

3. As the Court explained in the principal judgment, in all likelihood the appellant used the wrong procedure to recover the monies paid under s 83 by including it in her defence. The Court indicated its view that the proper procedure was for the appellant to have pleaded the claim under s 118 by way of cross-claim. Nonetheless, the respondent has at all times been on notice that the appellant’s insurer would seek to recover the monies paid to him should the Court find that his claim was false.

4. At the hearing, the appellant indicated that the insurer may not seek to pursue recovery of those monies, as its principal concern was in challenging the judgment in favour of the respondent on the basis that it was a false claim. Subsequently, the appellant, or more accurately her third party insurer, has informed the Court that she seeks to pursue that claim and seeks that this Court make an order in her favour in that regard. The respondent’s legal representatives have informed the Court that they have not received instructions from the respondent in respect of the appellant’s application under s 118.

5. The question which now arises is whether this Court should consider the appellant’s claim under s 118 to recover the monies paid to the respondent under s 83, or whether the appellant should be required to bring a separate claim to recover those monies.

6. Section 118(1) provides for a right of recovery where a person, inter alia:

“… did or omitted to do anything (including the making of a statement) concerning a motor accident or any claim relating to a motor accident with knowledge that the doing of the thing or the omission to do the thing was false or misleading.”

7. In the principal judgment, the Court held that the discrepancies in the respondent’s evidence could not be explained and cast such doubt on his credibility that none of his evidence should be accepted unless independently corroborated. The Court made the same finding in respect of the respondent’s witnesses, such that their evidence did not corroborate that of the respondent.

8. The consequence was the Court found that the respondent gave false evidence. That false evidence concerned a claim relating to a motor accident. As the respondent had to have known whether he was or was not in the car, he must have made the statement found by the Court to be false with the knowledge that it was false. As between the appellant and the respondent, that finding cannot be challenged other than by way of a further appeal.

9. In those circumstances, notwithstanding the procedural irregularity which the Court considered has occurred, requiring the appellant to bring a separate claim to recover the monies paid under s 83 would only add unnecessarily to the costs.

10. In the circumstances, it is appropriate that judgment be given for the appellant in the sum of $5,908.30.

11. Accordingly, the Court makes the following further order to the orders made on 28 September 2018:

1. Judgment for the appellant against the respondent in the sum of $5,908.30 pursuant to the Motor Accidents Compensation Act 1999 (NSW), s 118.

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