Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Rahman v Al-Maharmeh [2021] NSWCA 31 Hearing dates: 20 October 2020 Date of orders: 15 March 2021 Decision date: 15 March 2021 Before: Meagher JA at [1]
Leeming JA at [2]
Brereton JA at [3]Decision: (1) Grant leave to appeal;
(2) Allow the appeal;
(3) Set aside the orders (2), (3), (4), (5) and (6) made by the District Court on 20 April 2020;
(4) In lieu thereof, grant leave to the plaintiff Samar Abdul Rahman nunc pro tunc under (NSW) Motor Accidents Compensation Act 1999, s 109, to commence the proceedings instituted by her in the District Court against Sarah Al-Maharmeh by statement of claim filed in proceedings 2019/190375 on 19 June 2019; and
(5) Direct that any party, and Prominent Lawyers in their own right, who wishes to make submissions as to costs, including whether any order should be made under (NSW) Civil Procedure Act 2005, s 99, disallowing the whole or any part of the costs in the proceedings as between Prominent Lawyers and the appellant, lodge submissions and any supporting evidence within 14 days, and that if any party or Prominent Lawyers wishes to respond to such submissions, they do so within a further 14 days thereafter.
Catchwords: APPEALS – Leave to appeal – Interlocutory decision disposing of appellant’s claim – Whether error resulting in injustice established – Leave granted
TRAFFIC LAW AND TRANSPORT – Traffic law – Motor accident legislation – Time limits – Where leave under (NSW) Motor Accidents Compensation Act 1999, s 109, refused – Whether full and satisfactory explanation given for delay in circumstances where delay attributable to solicitors – Whether total damages likely to be awarded if claim succeeds not less than 25% of maximum amount awardable for non-economic loss – Calculation of future domestic assistance – Appeal allowed – Leave granted
COSTS – Wasted costs order – Where solicitors responsible for failure to commence proceedings in time – Direction made that submissions be lodged as to costs and potential under (NSW) Civil Procedure Act 2005, s 99
Legislation Cited: (NSW) Civil Liability Act 2002, s 15(3)
(NSW) Civil Procedure Act 2005, ss 58, 99
(NSW) Limitation Act 1969, s 58(2)(b)
(NSW) Motor Accidents Act 1988, s 43A
(NSW) Motor Accidents Compensation Act 1999, ss 66(2), 95(2)(b), 109, 134
(NSW) Motor Accidents Compensation (Determination of Loss) Order 2009, cl 4
Cases Cited: Al-Ebedi v Guo [2017] NSWDC 107
Christie v Baker [1996] 2 VR 582
Dijakovic v Perez (2015) 71 MVR 334; [2015] NSWCA 174
Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374
Eades v Gunestepe (2012) 61 MVR 328; [2012] NSWCA 204
Gordon v Truong (2014) 66 MVR 241; [2014] NSWCA 97
Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36
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- Case
- [2021] NSWCA 31
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the District Court judge erred in refusing leave to commence proceedings out of time, and whether the appellant had provided a full and satisfactory explanation for the delay, particularly given that the delay was attributable to her solicitors. The court also considered whether the total damages likely to be awarded, if the claim succeeded, would not be less than 25% of the maximum amount awardable for non-economic loss, and the proper calculation of future domestic assistance.
The Court of Appeal found that the District Court judge had erred in refusing leave. The court held that the delay, while significant, was adequately explained by the conduct of the appellant's solicitors. The court also determined that the appellant had established that the likely total damages would meet the threshold required by section 109(2)(b) of the Act, noting that the calculation of future domestic assistance was a matter for the trial judge. Consequently, the Court of Appeal granted leave to commence proceedings nunc pro tunc. The court also directed that submissions be made regarding wasted costs, specifically concerning potential orders under section 99 of the *Civil Procedure Act 2005* (NSW) in relation to the conduct of the appellant's solicitors.
Orders
Orders of the court
(1) Grant leave to appeal;
(2) Allow the appeal;
(3) Set aside the orders (2), (3), (4), (5) and (6) made by the District Court on 20 April 2020;
(4) In lieu thereof, grant leave to the plaintiff Samar Abdul Rahman nunc pro tunc under (NSW) Motor Accidents Compensation Act 1999, s 109, to commence the proceedings instituted by her in the District Court against Sarah Al-Maharmeh by statement of claim filed in proceedings 2019/190375 on 19 June 2019; and
(5) Direct that any party, and Prominent Lawyers in their own right, who wishes to make submissions as to costs, including whether any order should be made under (NSW) Civil Procedure Act 2005, s 99, disallowing the whole or any part of the costs in the proceedings as between Prominent Lawyers and the appellant, lodge submissions and any supporting evidence within 14 days, and that if any party or Prominent Lawyers wishes to respond to such submissions, they do so within a further 14 days thereafter.
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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