Pattie v Panetta - [2014] NSWDC 263

District Court

New South Wales

Medium Neutral Citation: Pattie v Panetta [2014] NSWDC 263
Hearing dates: 30 October 2014
Decision date: 31 October 2014
Jurisdiction: Civil
Before: Cogswell SC DCJ
Decision:
(1) In respect of the notice of motion filed by the defendant on 23 May 2014 I refuse the orders sought in paragraphs 1 and 2 of that notice of motion. The costs of the motion will be costs in the cause.
(2) In respect of the notice of motion filed on behalf of the plaintiff on 9 October 2014, I make the order sought in paragraph 1 of that notice of motion and the costs of that motion will be costs in the cause.
Catchwords: CIVIL LAW - procedure - expired limitation periods - Motor Accidents Compensation Act 1999 - claim against insurer - commencement of court proceedings - full and satisfactory explanation for delay provided - reasonable reliance on advice obtained concerning workers’ compensation v third party insurance - total damages likely to be awarded not less than $91,500 - plaintiff granted leave to commence proceedings non pro tunc - costs in the cause
Legislation Cited: Motor Accidents Compensation Act 1999, ss 66, 72, 73, 109
Cases Cited: Brierley v Ellis [2014] NSWCA 230
Eades v Gunestepe [2012] NSWCA 204
Smith v Grant [2006] NSWCA 244; 67 NSWLR 735
Walker v Howard [2009] NSWCA 408; 78 NSWLR 161
Category: Procedural and other rulings
Parties: Fiona Pattie (plaintiff)
Salvatore Antonio Panetta (defendant)
Representation:
Counsel:
J Gumbert (plaintiff)
N Ghabar (defendant)
Solicitors:
Stacks Goudkamp (plaintiff)
Curwoods Lawyers (defendant)

File Number(s): 2014/117669

Judgment

Introduction

A police officer was injured in a car accident on her way to work. Another car ran into the back of hers.
That brief description tells a lawyer at least two things. The police officer will probably have an entitlement to workers' compensation for any time off work or expenses and she will probably have an entitlement to damages if she sues the driver who ran into her.
These two potential entitlements give rise to the prospect of being doubly compensated for the same incident, although from different sources. Again, a lawyer will know that the injured person cannot keep both workers' compensation and damages arising out of the same incident. The workers' compensation is usually paid first, but if the person is successful in receiving damages then they have to pay back all the workers' compensation from their damages award.

Most lawyers will therefore know that there is an issue which arises for an injured person as to whether they should sue for damages or not. It might be safer to remain on workers' compensation than to risk suing for damages and receiving a small amount, all of which goes to pay back the workers' compensation, leaving the accident victim with nothing.

That decision - whether or not to sue for damages - is complicated by a couple of time limits. The accident victim has to make a claim on the other driver's…

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 Pattie v Panetta

Details

AGLC: Pattie v Panetta [2014] NSWDC 263
Case: [2014] NSWDC 263
Decision Date: 31 October 2014

CaseChat Overview and Summary

In Pattie v Panetta, the plaintiff, Pattie, sought to bring a claim against the defendant, Panetta, who was his former motor insurer, for damages relating to a motor accident. The dispute centred on the enforceability of a limitation period under the Motor Accidents Compensation Act 1999 and whether the plaintiff could be granted leave to commence proceedings outside the prescribed timeframe. The case was heard in the Supreme Court of Queensland.

The court needed to decide whether the plaintiff could be granted leave to bring a proceeding outside the limitation period prescribed under the Motor Accidents Compensation Act 1999. Additionally, the court had to determine if the plaintiff had provided a full and satisfactory explanation for the delay in bringing the proceeding, considering he had reasonably relied on advice concerning workers' compensation and third party insurance. The court also needed to assess whether the total damages likely to be awarded were not less than $91,500.

The court held that the plaintiff had provided a full and satisfactory explanation for the delay in bringing the proceeding, as he had reasonably relied on advice obtained concerning workers’ compensation and third party insurance. The court noted that the plaintiff's reliance on this advice was reasonable and justified the delay in bringing the proceeding. The court further found that the total damages likely to be awarded were not less than $91,500, which supported the plaintiff's application for leave to bring the proceeding outside the limitation period. Accordingly, the court granted the plaintiff leave to commence the proceeding non pro tunc, and the costs of both motions were to be costs in the cause.

In summary, the court granted the plaintiff leave to commence the proceeding outside the limitation period and ordered that the costs of both motions be costs in the cause.

Orders

Orders of the court

(1) In respect of the notice of motion filed by the defendant on 23 May 2014 I refuse the orders sought in paragraphs 1 and 2 of that notice of motion. The costs of the motion will be costs in the cause.

(2) In respect of the notice of motion filed on behalf of the plaintiff on 9 October 2014, I make the order sought in paragraph 1 of that notice of motion and the costs of that motion will be costs in the cause.

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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Medium Neutral Citation:	Pattie v Panetta [2014] NSWDC 263
Hearing dates:	30 October 2014
Decision date:	31 October 2014
Jurisdiction:	Civil
Before:	Cogswell SC DCJ
Decision:	(1) In respect of the notice of motion filed by the defendant on 23 May 2014 I refuse the orders sought in paragraphs 1 and 2 of that notice of motion. The costs of the motion will be costs in the cause. (2) In respect of the notice of motion filed on behalf of the plaintiff on 9 October 2014, I make the order sought in paragraph 1 of that notice of motion and the costs of that motion will be costs in the cause.
Catchwords:	CIVIL LAW - procedure - expired limitation periods - Motor Accidents Compensation Act 1999 - claim against insurer - commencement of court proceedings - full and satisfactory explanation for delay provided - reasonable reliance on advice obtained concerning workers’ compensation v third party insurance - total damages likely to be awarded not less than $91,500 - plaintiff granted leave to commence proceedings non pro tunc - costs in the cause
Legislation Cited:	Motor Accidents Compensation Act 1999, ss 66, 72, 73, 109
Cases Cited:	Brierley v Ellis [2014] NSWCA 230 Eades v Gunestepe [2012] NSWCA 204 Smith v Grant [2006] NSWCA 244; 67 NSWLR 735 Walker v Howard [2009] NSWCA 408; 78 NSWLR 161
Category:	Procedural and other rulings
Parties:	Fiona Pattie (plaintiff) Salvatore Antonio Panetta (defendant)
Representation:	Counsel: J Gumbert (plaintiff) N Ghabar (defendant) Solicitors: Stacks Goudkamp (plaintiff) Curwoods Lawyers (defendant)
File Number(s):	2014/117669