CITATION: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346
FILE NUMBER(S): 40961/99
HEARING DATE(S): 12 September 2001
JUDGMENT DATE: 28/09/2001
PARTIES: Justin James Nowlan (Appellant) Marson Transport Pty Ltd (Respondent)
JUDGMENT OF: Mason P Heydon JA Young CJ in Eq
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 175/99
LOWER COURT JUDICIAL OFFICER: Delaney DCJ
COUNSEL: Mr P R Hennessy SC (Appellant) Mr P G Maiden (Respondent)
SOLICITORS: Farrell Lusher (Appellant) William K Chambers (Respondent)
CATCHWORDS: Civil Practice and Procedure - Limitation period - Judicial discretion to allow claim out of time - Prejudice to defendant - Claim out of time under Motor Accidents Act - Appeal against decision denying leave to commence proceedings out of time - Whether defendant would suffer prejudice - Discussion and commentary on modern role for ambush and adversarial tactics in civil proceedings - Motor Accidents Act 1988 (NSW), s 52(4). Civil Practice and Procedure - Discretion of Court of Appeal to admit new evidence - Appeal against decision denying leave to commence proceedings out of time - Evidence relating to causation of personal injury - Supreme Court Act 1970 (NSW), s 75A(7)-(9). - D
Civil Practice and Procedure – Limitation period – Judicial discretion to allow claim out of time – Prejudice to defendant – Claim out of time under Motor Accidents Act – Appeal against decision denying leave to commence proceedings out of time – Whether defendant would suffer prejudice – Discussion and commentary on modern role for ambush and adversarial tactics in civil proceedings – Motor Accidents Act 1988 (NSW), s 52(4).
Civil Practice and Procedure – Discretion of Court of Appeal to admit new evidence – Appeal against decision denying leave to commence proceedings out of time – Evidence relating to causation of personal injury – Supreme Court Act 1970 (NSW), s 75A(7)-(9).
The appellant (the applicant at first instance) was involved in a motor accident on 5 July 1995. On 29 July 1999 he applied for leave to commence proceedings out of time pursuant to s 52(4) of the Motor Accidents Act 1988 (NSW). Section 52(4) established a limitation period of three years from the date of the motor accident.
The application was dismissed. The primary judge held that the respondent would be prejudiced in not being able to conduct medical examinations in circumstances where there could be difficulty in the respondent to being able to separate the various medical issues in relation to causation.
Held by Heydon JA (Mason P and Young CJ in Eq concurring), allowing the appeal and granting an extension of time:
The appellant’s further evidence (a medical report going to whether an…
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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AGLC
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346
Case
[2001] NSWCA 346
Decision Date
CaseChat Overview and Summary
This matter came before the Court of Appeal of New South Wales, concerning an appeal by Mr. Nowlan against a District Court decision that refused him leave to commence proceedings out of time under the *Motor Accidents Act 1988* (NSW). The dispute centred on Mr. Nowlan's claim for personal injury arising from a motor accident, where he sought to proceed despite the expiry of the statutory limitation period.
The primary legal issues before the Court of Appeal were whether the District Court judge erred in finding that Marson Transport Pty Ltd would suffer prejudice if leave were granted, and consequently, whether the Court of Appeal should admit further evidence and exercise the discretion afresh. The court was required to consider the appellant's explanation for the delay in commencing proceedings and the extent of any prejudice to the respondent, particularly in light of new medical evidence concerning the causation of the appellant's injuries.
The Court of Appeal considered that the primary judge's assessment of prejudice was flawed, particularly in light of further evidence provided by Dr. Patrick, which the respondent did not challenge. The court noted that while the appellant's delay in commencing proceedings was not entirely satisfactorily explained, and there was a lack of forensic diligence, these factors were not decisive. The crucial consideration was the risk of prejudice to the respondent. The court determined that it was appropriate to exercise the discretion afresh, rather than remitting the matter to the District Court, to avoid further delay and given that no credit findings were made against the appellant.
Orders
Orders of the court
See para 38
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
If respondents to this kind of proceeding cannot behave in the manner just indicated as desirable, it may be necessary for the relevant authorities, if they think fit, to amend the rules of court or issue some practice direction in a way which will cause this type of controversy to be resolved without undue expense. Effect of the further evidence The respondent did not seek to cross-examine Dr Patrick on the further evidence, and did not tender any evidence on its own behalf in contradiction of it. In those circumstances the further evidence reveals error in the primary judge’s view that the respondent was prejudiced in not being able to conduct medical examinations “in circumstances where there could be a chance … for the respondent to be able to separate the various medical issues”. Dr Patrick thought there was much more than a chance. (The responsibility for that error on the part of the primary judge does not, of course, in the light of the conduct of the parties before him, rest with him.)Re-exercise of discretion? The question then arises whether the matter should be remitted to the District Court so that a further application can be heard there, or whether this Court should exercise afresh the discretion which, after being exercised against the appellant, generated this appeal. The respondent favoured the former course, while the appellant favoured the latter course. Though the primary judge was critical of the appellant’s lack of forensic diligence, he made no credit findings adverse to the appellant, and no issue of credibility appears to arise. Though the respondent has lost any change of cross-examining Dr Patrick on the prejudice question, that is the consequence of its own tactical approach. Dr Patrick’s evidence before the primary judge conveyed implicitly the proposition on prejudice which his further evidence has now made explicit, and the respondent did not seek to deal with it before the primary judge. Accordingly it seems both possible and, in the interests of avoiding further delay, desirable for this Court to consider the discretion for itself. The two issues which arise in this case are the appellant’s explanation for his delay and the existence of prejudice. The applicant had opportunities to seek legal advice, and there was in a sense a lack of diligence. The delay was explained to an extent. The appellant initially thought his condition would improve. There was also evidence, though the appellant did not himself highlight it, that later he had reasons for suppressing knowledge of the accident: he wanted to reduce the chance that the high ambitions he once held for success in rugby union would become incapable of realisation. The more widely the accident was known, the less the chance that the applicant would realise those ambitions. That attitude is entirely human. So far as the appellant has not satisfactorily explained delay, his default does not tell decisively against the application. Forensic diligence is a relevant factor, but not an end in itself or a necessary precondition for success. The more important question is whether the respondent is at risk of prejudice.