Nominal Defendant v Harris

[2011] NSWCA 70

Court of Appeal

New South Wales

Case Title:	Nominal Defendant v Harris
Medium Neutral Citation:	[2011] NSWCA 70
Hearing Date(s):	2nd February 2011
Decision Date:	25 February 2011
Jurisdiction:
Before:	Hodgson, McColl, Whealy JJA
Decision:	(1) Leave to appeal is granted (2) The appeal is dismissed (3) Applicant to pay the respondent's costs of the application and appeal. [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:	APPEAL - civil law - extension of time - principles applicable - reasons for delay - full and satisfactory explanation - plaintiff with intellectual disabilities - prejudice to defendant - onus to satisfy statutory test
Legislation Cited:	Motor Vehicle Accidents Act 1999 s109 Workers Compensation Act 1987 s151D(2)
Cases Cited:	Itek Graphix Pty Ltd v Elliot (2002) 54 NSWLR 207 Salido v The Nominal Defendant 32 NSWLR 5254 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Sydney City Council v Zegarac (1998) 43 NSWLR 195 Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10 at [37]
Texts Cited:
Category:	Principal judgment
Parties:	Nominal Defendant (Applicant) Stuart James Reginald HARRIS (Respondent)
Representation
- Counsel:	Counsel: S G Campbell SC / D M Wilson (Applicant) I D Roberts SC / K Oldfield (Respondent)
- Solicitors:	Solicitors: Hunt & Hunt (Applicant) Michael Kreveld Legal (Respondent)
File number(s):	2010/3689
Decision Under Appeal
- Court / Tribunal:
- Before:	Sidis DCJ
- Date of Decision:
- Citation:	[2009] NSWDC 372
- Court File Number(s)	168/09
Publication Restriction:

Judgment

1. HODGSON JA: I agree with Whealy JA.

1. MCCOLL JA: I agree with Whealy JA.

1. WHEALY JA: This appeal proceeded by way of a concurrent hearing, in which the applicant seeks an order for leave to appeal and submits, if leave be granted, that the appeal be upheld. The application arises out of orders made by Sidis DCJ on 18 th December 2009. The principal relief granted by her Honour had been an order in favour of the present respondent, giving him leave to commence proceedings in respect of a motor vehicle accident that occurred during the night of 12 th , or the morning of, 13 th August 2004. Consequential orders were made in relation to service of the statement of claim and the costs of the application. The applicant has argued that, in exercising the discretion conferred by s 109 Motor Accidents Compensation Act 1999 (" MAC Act ") to extend the three year limitation period, her Honour had misdirected herself, and made other errors of significance, so as to vitiate the decision. The applicant has sought to revoke the leave that had been given by the order of 18 th December 2009.

The Accident