Nominal Defendant v Staggs - [2010] NSWCA 224

New South Wales

Court of Appeal

CITATION: NOMINAL DEFENDANT v STAGGS [2010] NSWCA 224

HEARING DATE(S): 6 August 2010

JUDGMENT DATE:
3 September 2010

JUDGMENT OF: Giles JA at 1; Hodgson JA at 2; Basten JA at 8

DECISION: (1) Grant leave to the Nominal Defendant to appeal against the order made in the District Court on 14 October 2009 extending time for the defendants to serve a notice of intention to join the Nominal Defendant as a party to the claim brought against them by the plaintiff.
(2) Allow the appeal and set aside the order of the District Court extending time for giving such notice.
(3) In place of the order made in the District Court, order that the motion filed for the defendants on 7 August 2009 (as amended on 14 October 2009) be dismissed.
(4) Order that the first and second respondents pay the appellant’s costs of the proceedings in this Court.

CATCHWORDS: TORT – negligence – motor vehicle accident – involvement of unidentified vehicle – claim against Nominal Defendant – failure to notify within statutory period – Motor Accident Compensation Act 1999 (NSW) s 36 - STATUTORY INTERPRETATION – principles – Act read as a whole – ss 36, 109 - WORDS AND PHRASES – "full and satisfactory explanation"

LEGISLATION CITED: Legal Profession Act 2004 (NSW), s 347
Motor Accidents Act 1988 (NSW), s 40, Pt 5
Motor Accident Compensation Act 1999 (NSW), ss 36, 66, 72, 109

CATEGORY: Principal judgment

CASES CITED: Gashparac v Walter [2000] ACTSC 118
Guest v Southern (unrep, NSWSC, 22 September 1995)
Nicholas v Webb (No 2) [1993] 19 MVR 65
Russo v Aiello [2003] HCA 53; 215 CLR 643
Smith v Grant [2006] NSWCA 244; 67 NSWLR 735

PARTIES: The Nominal Defendant - Appellant
Richard Lindall Staggs - First Respondent
Harley Davidson Australia Pty Ltd - Second Respondent
Charlene Towers - Third Respondent

FILE NUMBER(S): CA 2009/324938

COUNSEL: R Stitt QC/B Kelleher - Appellant
K P Rewell SC - First and Second Respondents
Submitting Appearance - Third Respondent

SOLICITORS: Moray & Agnew - Appellant
DibbsBarker - First and Second Respondents
Carneys Lawyers - Third Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 6050/2008

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 14 October 2009

CA 2009/324938
DC 6050/2008

GILES JA
HODGSON JA
BASTEN JA
3 September 2010

NOMINAL DEFENDANT v Richard Lindall STAGGS & ORS

Headnote

On 14 March 2006, Ms Charlene Towers was riding as a pillion passenger on a Harley Davidson motorcycle being driven by Mr Richard Staggs, the respondent. They were involved in an accident on the Warringah Freeway at North Sydney when Mr Staggs braked suddenly as a result of traffic slowing because two of the three lanes ahead had been blocked off for road works, apparently causing the rear wheel of the motorcycle to lock, with Mr Staggs and Ms Towers being thrown onto the road. Ms Towers suffered significant injuries.

A statement by police taken…

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.

Continue reading Nominal Defendant v Staggs

Details

AGLC: Nominal Defendant v Staggs [2010] NSWCA 224
Case: [2010] NSWCA 224
Decision Date: 3 September 2010

CaseChat Overview and Summary

The appeal concerned a claim brought by Mr Staggs against the Nominal Defendant, arising from a motor vehicle accident involving an unidentified vehicle. The central dispute revolved around whether the Nominal Defendant had been notified of the claim within the statutory period prescribed by the *Motor Accident Compensation Act 1999* (NSW). The proceedings were heard in the Court of Appeal of New South Wales, with judgment delivered by Giles, Hodgson and Basten JJA.

The primary legal issue before the Court of Appeal was whether the District Court had erred in extending time for the defendants to serve a notice of intention to join the Nominal Defendant as a party to the claim. This required the court to interpret section 36 of the *Motor Accident Compensation Act 1999* (NSW), which governs the notification requirements for claims involving unidentified vehicles, and specifically the meaning of "full and satisfactory explanation" for any failure to comply with the statutory time limits. The court also considered the interplay between section 36 and section 109 of the Act.

The Court of Appeal reasoned that section 36 of the Act imposed a strict requirement for notification within a specified period, and that an extension of time could only be granted upon a "full and satisfactory explanation" for the delay. The court found that the explanation provided by the defendants for their failure to notify the Nominal Defendant within the statutory period was insufficient. In particular, the court held that the defendants had not demonstrated that they had taken all reasonable steps to identify the unidentified vehicle, which was a prerequisite for a satisfactory explanation under the Act. The court emphasised that the Act should be read as a whole, and that the purpose of section 36 was to ensure timely notification to the Nominal Defendant.

Consequently, the Court of Appeal granted the Nominal Defendant leave to appeal, allowed the appeal, and set aside the District Court's order extending time. The court ordered that the motion filed by the defendants in the District Court be dismissed, and that the respondents pay the appellant's costs of the proceedings in the Court of Appeal.

Orders

Orders of the court

(1) Grant leave to the Nominal Defendant to appeal against the order made in the District Court on 14 October 2009 extending time for the defendants to serve a notice of intention to join the Nominal Defendant as a party to the claim brought against them by the plaintiff.

(2) Allow the appeal and set aside the order of the District Court extending time for giving such notice.

(3) In place of the order made in the District Court, order that the motion filed for the defendants on 7 August 2009 (as amended on 14 October 2009) be dismissed.

(4) Order that the first and second respondents pay the appellant’s costs of the proceedings in this Court.

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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CITATION:	NOMINAL DEFENDANT v STAGGS [2010] NSWCA 224
HEARING DATE(S):	6 August 2010
JUDGMENT DATE:	3 September 2010
JUDGMENT OF:	Giles JA at 1; Hodgson JA at 2; Basten JA at 8
DECISION:	(1) Grant leave to the Nominal Defendant to appeal against the order made in the District Court on 14 October 2009 extending time for the defendants to serve a notice of intention to join the Nominal Defendant as a party to the claim brought against them by the plaintiff. (2) Allow the appeal and set aside the order of the District Court extending time for giving such notice. (3) In place of the order made in the District Court, order that the motion filed for the defendants on 7 August 2009 (as amended on 14 October 2009) be dismissed. (4) Order that the first and second respondents pay the appellant’s costs of the proceedings in this Court.
CATCHWORDS:	TORT – negligence – motor vehicle accident – involvement of unidentified vehicle – claim against Nominal Defendant – failure to notify within statutory period – Motor Accident Compensation Act 1999 (NSW) s 36 - STATUTORY INTERPRETATION – principles – Act read as a whole – ss 36, 109 - WORDS AND PHRASES – "full and satisfactory explanation"
LEGISLATION CITED:	Legal Profession Act 2004 (NSW), s 347 Motor Accidents Act 1988 (NSW), s 40, Pt 5 Motor Accident Compensation Act 1999 (NSW), ss 36, 66, 72, 109
CATEGORY:	Principal judgment
CASES CITED:	Gashparac v Walter [2000] ACTSC 118 Guest v Southern (unrep, NSWSC, 22 September 1995) Nicholas v Webb (No 2) [1993] 19 MVR 65 Russo v Aiello [2003] HCA 53; 215 CLR 643 Smith v Grant [2006] NSWCA 244; 67 NSWLR 735
PARTIES:	The Nominal Defendant - Appellant Richard Lindall Staggs - First Respondent Harley Davidson Australia Pty Ltd - Second Respondent Charlene Towers - Third Respondent
FILE NUMBER(S):	CA 2009/324938
COUNSEL:	R Stitt QC/B Kelleher - Appellant K P Rewell SC - First and Second Respondents Submitting Appearance - Third Respondent
SOLICITORS:	Moray & Agnew - Appellant DibbsBarker - First and Second Respondents Carneys Lawyers - Third Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 6050/2008
LOWER COURT JUDICIAL OFFICER:	Garling DCJ
LOWER COURT DATE OF DECISION:	14 October 2009