Reeves v Reeves - [2002] NSWCA 181

CITATION: Reeves v Reeves [2002] NSWCA 181

FILE NUMBER(S): CA 40243/01

HEARING DATE(S): 06/06/2002

JUDGMENT DATE:
19 June 2002

PARTIES :

Belinda REEVES v Tania REEVES

JUDGMENT OF: Meagher JA at 1; Foster AJA at 2-19; Campbell AJA at 20

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 57/01

LOWER COURT
JUDICIAL OFFICER : Delaney DCJ

COUNSEL: Mr J.D. Hislop QC with Mr D. J. Russell - Appellant
Mr G.R. Petty SC with Mr D. Hooke - Respondent

SOLICITORS: Turner Whelan - Appellant
Burston Cole & Co - Respondent

CATCHWORDS: Appeal from an interlocutory judgment in which it was found in favour of the respondent - question of contributory negligence issue.

LEGISLATION CITED: The Motor Accidents Act, 1988

CASES CITED:
Nicholson v Nicholson (1994) 35 NSWLR 308 at 318F-G and 332G-334A

DECISION: 1. Appeal should be allowed.; 2. Appellant pay costs; 2. Application remitted to the District Court to be heard and determined in accordance with these reasons.

CA 40243/01
DC 57/01

MEAGHER JA
FOSTER AJA
CAMPBELL AJA
WEDNESDAY, 19 JUNE, 2002

Belinda REEVES v Tania REEVES

Judgment

1 MEAGHER JA: I agree with Foster AJA.

2 FOSTER AJA: This is an appeal from an interlocutory judgment given by Delaney DCJ in the District Court at Parramatta on 16 March 2001 in which he found for the present respondent. Leave to appeal has been granted. His Honour had for decision an application, brought by Notice of Motion dated 6 February 2001, in which the present respondent sought leave to commence proceedings against the present appellant pursuant to s 52(4) of the Motor Accidents Act, 1988. That section provides as follows:-

“(4) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:

(a) the date of the motor accident to which the claim relates, or

(b) ………

except with the leave of the court in which the proceedings are to be taken.”

3 The granting of leave under this subsection is made subject to s 52(4B) which provides as follows:-

(4B) The leave of the court must not be granted unless:

(a) the claimant provides a full and satisfactory explanation to the court for the delay, and

(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25 per cent of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident.”

4 It is common ground that, in the present case, the “maximum amount” referred to in the section is $61,750.00.

5 The amounts claimed by the respondent in her application, as being the damages she would seek if she were permitted to bring her action out of time, exceeded this amount. However, if the appellant, at the hearing of the action, were to be successful in obtaining a reduction of the damages assessed in favour of the respondent on the basis of…

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 Reeves v Reeves

Details

AGLC: Reeves v Reeves [2002] NSWCA 181
Case: [2002] NSWCA 181
Decision Date: 19 June 2002

CaseChat Overview and Summary

The appeal in *Reeves v Reeves* concerned an interlocutory judgment that had been made in favour of the respondent. The central issue before the Court of Appeal was whether the appellant had been contributorily negligent.

The Court of Appeal was required to determine whether the primary judge had erred in finding that the appellant was not contributorily negligent. This involved a review of the evidence and the application of the relevant legal principles governing contributory negligence.

The Court of Appeal allowed the appeal, finding that the primary judge had made an error in their assessment of contributory negligence. The Court reasoned that the evidence presented demonstrated a degree of negligence on the part of the appellant that should have been taken into account. Consequently, the matter was remitted to the District Court for a determination in accordance with the Court of Appeal's reasons. The appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

1. Appeal should be allowed.; 2. Appellant pay costs; 2. Application remitted to the District Court to be heard and determined in accordance with these reasons.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Reeves v Reeves [2002] NSWCA 181
FILE NUMBER(S):	CA 40243/01
HEARING DATE(S):	06/06/2002
JUDGMENT DATE:	19 June 2002
PARTIES :	Belinda REEVES v Tania REEVES
JUDGMENT OF:	Meagher JA at 1; Foster AJA at 2-19; Campbell AJA at 20

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 57/01
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ

COUNSEL:	Mr J.D. Hislop QC with Mr D. J. Russell - Appellant Mr G.R. Petty SC with Mr D. Hooke - Respondent
SOLICITORS:	Turner Whelan - Appellant Burston Cole & Co - Respondent
CATCHWORDS:	Appeal from an interlocutory judgment in which it was found in favour of the respondent - question of contributory negligence issue.
LEGISLATION CITED:	The Motor Accidents Act, 1988
CASES CITED:	Nicholson v Nicholson (1994) 35 NSWLR 308 at 318F-G and 332G-334A
DECISION:	1. Appeal should be allowed.; 2. Appellant pay costs; 2. Application remitted to the District Court to be heard and determined in accordance with these reasons.