Court of Appeal
New South Wales
Case Title: Nominal Defendant v Browne Medium Neutral Citation: [2013] NSWCA 197 Hearing Date(s): 19 June 2013 Decision Date: 19 June 2013 Before: Basten JA at [1];
Barrett JA at [28];
Gleeson JA at [29]Decision: (1) Grant leave to appeal.
(2) Allow the appeal and set aside the orders made in the District Court.
(3) In place thereof,
(a) dismiss the plaintiff's proceedings in the District Court;
(b) order that the plaintiff pay the defendant's costs in the District Court.(4) Order that the respondent pay the applicant's costs in this Court.
(5) Grant the respondent a certificate under the Suitors Fund Act 1951 (NSW) in respect of her costs in this Court.
[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: MOTOR ACCIDENTS COMPENSATION - claim against nominal defendant - whether respondent made "due inquiry and search" to attempt to establish identity of vehicle - what constitutes "due" inquiry and search - whether futile search required to satisfy test - where accident occurred near café in business complex - whether respondent should have placed notice in café seeking witnesses - whether respondent should have canvassed businesses to ascertain identity of vehicle - Motor Accidents Compensation Act 1999 (NSW), ss 34(1AA) and 34A(3)
MOTOR ACCIDENTS COMPENSATION - claim against nominal defendant - respondent failed to claim within six months of accident - whether respondent provided "full and satisfactory explanation" for delay - respondent instructed, and relied on advice from, solicitors and counsel - whether "full" explanation required details of instructions to, and advise from, solicitors and counsel - Motor Accidents Compensation Act 1999 (NSW), ss 73(1), 73(5) and 73(7)
WORDS AND PHRASES - due inquiry and search - Motor Accidents Compensation Act 1999 (NSW), ss 34(1AA) and 34A(3)
WORDS AND PHRASES - full and satisfactory explanation - Motor Accidents Compensation Act 1999 (NSW), ss 73(1), 73(5) and 73(7)Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 34, 34A, 66, 70, 72, 73 Cases Cited: Harrison v Nominal Defendant (1975) 50 ALJR 330
Nominal Defendant v Meakes [2012] NSWCA 66
Walker v Howard [2009] NSWCA 408; 78 NSWLR 161Category: Principal judgment Parties: Nominal Defendant (Applicant)
Sharon Browne (First Respondent)
Owners of Strata Plan No 55497 (Second Respondent)Representation - Counsel: KP Rewell SC (Applicant)
S Norton SC/M Fraser- Solicitors: Moray & Agnew (Applicant)
Brydens Law Office (First Respondent)File Number(s): CA 2012/190214 Decision Under Appeal - Court / Tribunal: District Court - Before: Curtis DCJ - Date of Decision: 25 May 2012 - Court File Number(s): DC 2011/295499
JUDGMENT
BASTEN JA: On 5 January 2009, Ms Sharon Browne, the…
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- AGLC
- Nominal Defendant v Browne [2013] NSWCA 197
- Case
- [2013] NSWCA 197
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine two primary legal issues. Firstly, whether Ms Browne had made "due inquiry and search" to identify the unknown vehicle, as required by section 34(1AA) of the *Motor Accidents Compensation Act 1999* (NSW). This involved considering whether a search that was ultimately unsuccessful could still satisfy the statutory test, and whether further steps, such as placing a notice in a nearby café or canvassing local businesses, should have been undertaken. Secondly, the Court had to consider whether Ms Browne had provided a "full and satisfactory explanation" for her delay in commencing proceedings, pursuant to section 73 of the Act, particularly in light of her reliance on legal advice.
The Court of Appeal found that Ms Browne had not discharged her obligation to make "due inquiry and search". It held that the steps taken were insufficient to satisfy the statutory requirement, and that a more diligent and comprehensive investigation was warranted given the circumstances of the accident. Furthermore, the Court determined that Ms Browne had not provided a "full and satisfactory explanation" for the delay in commencing proceedings. While acknowledging her reliance on legal advice, the Court found that the explanation lacked the necessary detail and completeness to satisfy the statutory threshold.
Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the orders made by the District Court. The plaintiff's proceedings in the District Court were dismissed, and she was ordered to pay the defendant's costs in that court. The respondent was also ordered to pay the applicant's costs in the Court of Appeal, with a certificate granted under the *Suitors Fund Act 1951* (NSW) in respect of those costs.
Orders
Orders of the court
(1) Grant leave to appeal.
(2) Allow the appeal and set aside the orders made in the District Court.
(3) In place thereof,
(a) dismiss the plaintiff's proceedings in the District Court;
(b) order that the plaintiff pay the defendant's costs in the District Court.
(4) Order that the respondent pay the applicant's costs in this Court.
(5) Grant the respondent a certificate under the Suitors Fund Act 1951 (NSW) in respect of her costs in this Court.
[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.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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