Prospero v Farmer - [2020] NSWDC 631

District Court

New South Wales

Medium Neutral Citation: Prospero v Farmer [2020] NSWDC 631
Hearing dates: 15 October 2020
Date of orders: 23 October 2020
Decision date: 23 October 2020
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
See paragraph [44] for orders

Catchwords:
PRACTICE AND PROCEDURE – application by plaintiff pursuant to s 110 of the Motor Accidents Compensation Act 1999 (NSW) seeking reinstatement of her motor accident compensation claim – limits placed on cross-examination of affidavit evidence in an interlocutory application

Legislation Cited:
Motor Accident Injuries Act 2017,
Motor Accidents Compensation Act 1999 (NSW), s 85, s 110(3) and (5)
Uniform Civil Procedure Rules, r 35.2, r 42.1

Cases Cited:
Markisic v Commonwealth of Australia [2010] NSWCA 273
Ren v Jiang [2014] NSWCA 1

Category: Procedural and other rulings
Parties: Ninette Prospero (Plaintiff)
Mary Farmer (Defendant)
Representation:
Counsel:
Mr W Carney (Plaintiff)
Mrs C Allan (Defendant)
Solicitors:
PK Simpson (Plaintiff)
McInnes Wilson Lawyers NSW (Defendant)

File Number(s): 2020/165377
Publication restriction: None

Judgment

Contested interlocutory application by plaintiff

By notice of motion filed pursuant to s 110(5) of the Motor Accidents Compensation Act 1999 (NSW) (“MAC Act”), the plaintiff, Ms Ninette Prospero, seeks an order for reinstatement of her personal injury damages claim arising out of a motor vehicle accident on 2 September 2017 where the CTP insurer, Allianz Australia Insurance Ltd, opposes that course on the contended ground that the plaintiff’s claim should be considered to have been withdrawn by reason of the operation of s 110(3) of that Act.

Procedural context

On 2 September 2017, the plaintiff was injured in a motor vehicle accident. Her claim for damages in respect of those injuries is governed by the terms of the MAC Act. She sustained serious leg injuries which she claims were caused by the negligence of the defendant, Ms Mary Farmer, the insured driver of the motor vehicle which collided with the plaintiff’s motorcycle when the accident occurred.
On 3 June 2020, the plaintiff filed her statement of claim initiating the proceedings. She erroneously purported to do so pursuant to the Motor Accident Injuries Act 2017 (NSW). On 25 June 2020, the defendant filed a defence identifying a factual dispute as to the accident circumstances as well as identifying a legal dispute as to whether the Motor Accident Injuries Act 2017 (NSW) was engaged by the factual circumstances of the claim. In that defence it was claimed, correctly, that the applicable legislation which governed the proceedings was the MAC Act.
On 25 June 2020, the plaintiff filed an amended statement of claim in which the jurisdiction of the Court was correctly invoked pursuant to the provisions of the MAC Act. The defendant has not yet filed a defence to that amended statement of claim.
The defendant disputes the plaintiff’s entitlement to maintain these proceedings for two reasons, those being first, pursuant to s 110(3) of the MAC Act, the defendant claims that the plaintiff should be taken to have withdrawn her claim…

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 Prospero v Farmer

Details

AGLC: Prospero v Farmer [2020] NSWDC 631
Case: [2020] NSWDC 631
Decision Date: 23 October 2020

CaseChat Overview and Summary

The plaintiff in this case, Prospero, sought reinstatement of her motor accident compensation claim under section 110 of the Motor Accidents Compensation Act 1999 (NSW). The application was heard by the Supreme Court of New South Wales. The defendant, Farmer, opposed the application, raising questions about the admissibility of certain evidence and the scope of cross-examination permissible in an interlocutory application.

The court was required to decide whether the plaintiff's application was an appropriate use of section 110 and whether the cross-examination of the defendant's witness, limited by the defendant's objections, was sufficient to proceed with the application. The court also had to determine the extent to which the principles of the Uniform Evidence Acts applied to the cross-examination of affidavit evidence in such proceedings.

The court held that the plaintiff's application was an appropriate use of section 110, and the principles of the Uniform Evidence Acts applied to the cross-examination of affidavit evidence. However, the court also found that the defendant's objections to the cross-examination were not without merit, and some limits on the scope of cross-examination were appropriate. The court concluded that the plaintiff's application should proceed, but with certain restrictions on the cross-examination of the defendant's witness.

The court ordered that the plaintiff's application be reinstated, subject to the terms outlined in the judgment. The court also ordered that the cross-examination of the defendant's witness be limited to specific areas identified in the judgment, and that further evidence be adduced if necessary. The defendant was directed to provide the plaintiff with access to certain documents and information, and the case was listed for further directions.

Orders

Orders of the court

See paragraph [44] for orders

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Prospero v Farmer [2020] NSWDC 631
Hearing dates:	15 October 2020
Date of orders:	23 October 2020
Decision date:	23 October 2020
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	See paragraph [44] for orders
Catchwords:	PRACTICE AND PROCEDURE – application by plaintiff pursuant to s 110 of the Motor Accidents Compensation Act 1999 (NSW) seeking reinstatement of her motor accident compensation claim – limits placed on cross-examination of affidavit evidence in an interlocutory application
Legislation Cited:	Motor Accident Injuries Act 2017, Motor Accidents Compensation Act 1999 (NSW), s 85, s 110(3) and (5) Uniform Civil Procedure Rules, r 35.2, r 42.1
Cases Cited:	Markisic v Commonwealth of Australia [2010] NSWCA 273 Ren v Jiang [2014] NSWCA 1
Category:	Procedural and other rulings
Parties:	Ninette Prospero (Plaintiff) Mary Farmer (Defendant)
Representation:	Counsel: Mr W Carney (Plaintiff) Mrs C Allan (Defendant) Solicitors: PK Simpson (Plaintiff) McInnes Wilson Lawyers NSW (Defendant)
File Number(s):	2020/165377
Publication restriction:	None