2. Order 1 suspended for 28 days from the date of this Order and for such further time as a Justice of this Court may order before the expiry of that 28 day period and on an application made within 14 days of this Order.
3. Liberty to apply to file, on an application made in accordance with Order 2, written submissions as to whether any other order should be made by this Court respecting the position of the second appellant.
On appeal from the Supreme Court of New South Wales
Representation:
G B Hall QC with A R Lakeman for the appellants (instructed by Turner Whelan)
D J Russell SC with G F Butler for the respondent (instructed by Mr Bhim Ramrakha)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Russo v Aiello
Limitation of actions – Action in respect of motor vehicle accident where claimant lodged claim outside statutory time limit – Whether claimant had a full and satisfactory explanation for delay in making claim – Whether material difference between having and providing an explanation – Whether reasonable person in position of claimant would have been justified in experiencing the same delay – Onus of establishing full and satisfactory explanation – Relevance of prejudice to defendant caused by stay – Motor Accidents Act 1988 (NSW), ss 40(2), 43(2), 43A(2), 43A(6), 43A(7).
Appeal – Where primary judge of District Court erred in law and fact in making discretionary judgment – Whether errors vitiated decision of primary judge – Whether Court of Appeal erred in its disposition of appeal – Whether relief futile.
GLEESON CJ. The relevant facts, and statutory provisions, are set out in the reasons for judgment of Gummow and Hayne JJ.
Part 5 of the Motor Accidents Act 1988 (NSW), ("the Act"), in the form relevant to this appeal, deals with claims (defined, in s 40, to include claims for damages in respect of personal injury arising from fault by the owner or driver of a motor vehicle), and court proceedings to enforce claims. The objects of the Part are stated in s 40A. They include ensuring that claims are quickly brought to the attention of insurers.
Division 2 of Pt 5, dealing with claims and other matters preliminary to court proceedings, is of present relevance. Section 43(2) states that a claim of the kind made by the appellants must be made within six months after the date of the motor accident to which the claim relates. Sub-section (1) explains the object of that requirement. Section 43(A), which also commences with a statement of its objects, qualifies the requirement in s 43(2) by…
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
Russo v Aiello [2003] HCA 53
Case
[2003] HCA 53
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia by Mr Lido Russo and his employing company, the appellants, against a decision of the New South Wales Court of Appeal. The dispute arose from a motor vehicle accident on 11 January 1997, in which Mr Russo was injured. Mr Russo lodged his claim form 26 months after the accident, significantly outside the time limits prescribed by the *Motor Accidents Act 1988* (NSW). The primary judge of the District Court had dismissed the claim, a decision upheld by the Court of Appeal.
The central legal issues before the High Court were whether the claimant had provided a "full and satisfactory explanation" for the delay in lodging his claim, as required by the Act, and whether the primary judge and the Court of Appeal had erred in law and fact in their discretionary judgments regarding this issue. The Court also considered the onus of proof for establishing such an explanation and the relevance of prejudice to the defendant caused by the delay.
The High Court, in dismissing the appeal, reasoned that the claimant had not established a full and satisfactory explanation for the extensive delay. While the claimant consulted a solicitor shortly after the accident, he was advised of the time limits but did not lodge his claim before travelling overseas. Upon his return, further delays occurred before new solicitors were consulted and specialist medical advice obtained, leading to the late lodgement of the claim. The Court found that the claimant's initial solicitor's perceived inexperience did not, in the circumstances, justify the entire period of delay, and that prudence would have dictated more proactive steps to protect the claimant's position. The Court affirmed the majority decision of the Court of Appeal, which had upheld the primary judge's conclusion that the explanation for the delay was insufficient.
The High Court ordered that the appeal be dismissed with costs, but suspended this order for 28 days to allow for further submissions regarding the position of the second appellant. Liberty was granted to apply for an extension of this suspension period and to make written submissions on any other orders the Court might make concerning the second appellant.
Orders
Orders of the court
1. Appeal dismissed with costs.
2. Order 1 suspended for 28 days from the date of this Order and for such further time as a Justice of this Court may order before the expiry of that 28 day period and on an application made within 14 days of this Order.
3. Liberty to apply to file, on an application made in accordance with Order 2, written submissions as to whether any other order should be made by this Court respecting the position of the second appellant.
Background
Background to the litigation
Any superimposition of new time limitations upon a legal system that for centuries[18] had recognised a right, in most cases, to bring a damages claim in tort years after the cause of action arose, was bound to cause mistakes, and apparent injustices, at least at the beginning of the operation of the new legislation. This is what makes this appeal important not only to the present parties but for other cases affected by the interpretation of the provisions of the Act that this Court adopts. Many cases wait in the wings for the outcome of this appeal.[18]Since the Limitation Act 1623 (UK).The facts and provisions of the Act Belated motor accident claim: The facts are set out in the reasons of Gummow and Hayne JJ, as are the relevant provisions of the Act[19]. Mr Lido Russo ("the claimant") was injured in a motor car accident on 11 January 1997. He consulted a solicitor on 21 January 1997. The solicitor was described by him as "young and inexperienced" and not such as to give him confidence in the strength of his claim. However, the claimant was provided with a claim form and advised of the time limit imposed by the Act. In July 1997 he went overseas without having lodged the claim form. [19]Reasons of Gummow and Hayne JJ at [36]-[41], [46]-[56], [60]. Given the common unpredictability of accident outcomes, prudence might have suggested that the solicitor take steps in January 1997 to ensure that the claimant's position as to the time for making a claim under the Act was protected, by proposing that the form be completed there and then (or at least that some letter of claim be sent to the insurer). No fee or disadvantage attached to lodging such a claim. But that course was not adopted. The claimant returned to Australia in December 1997. He resumed work. Eventually, in October 1998, he consulted new solicitors. He received specialist medical advice in January and February 1999. Only then, on 23 March 1999, did he complete a claim form. It was lodged 26 months after the accident in which his cause of action (and that of the second appellant, his employing company) first arose. Substantial claim – time problem: But for the operation of the Act, there would have still been ample time for the claimant to bring an action for damages. The driver alleged to be responsible for the accident was known and identified. He held a compulsory third party risk insurance policy. The claimant was innocent of any negligence, being a passenger in the driver's vehicle. The circumstances of the accident appear to indicate negligence on the part of the driver in controlling his vehicle, which ran off the road and struck a rockface. There seems to have been no doubt about the occurrence of the accident. The police attended the scene. The claimant was taken thence to hospital by ambulance. The hospital records confirmed the claimant's history. The claimant alleged that he suffered injuries that resulted in disabilities such that, if his claim succeeded, the award of damages would be more than 10 per cent of the maximum amount for non-economic loss under ss 79 or 79A of the Act[20]. The last-mentioned aspect of his claim was not contested by the insurer. [20]Act, s 43A(4). See reasons of Gummow and Hayne JJ at [52].
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
(dissent)
HUGH J
(dissent)
GUMMOW AND HAYNE JJ
(dissent)
KIRBY J
(dissent)
If this passage was intended to indicate that the respondent was required to challenge a reason for delay which was not disclosed by the material before the Court by the close of submissions then, for the reasons earlier given, it should be rejected. The better view may be that his Honour was not intending to state any general propositions as to the construction of the statute. Rather, his remarks may reflect the view he took of the particular circumstances of the litigation in the District Court and of the consequences of the misapprehension as to onus of proof which appeared to affect the course of proceedings before that Court.Conclusion The majority in the Court of Appeal has not been shown to have erred in upholding the conclusion of the primary judge that the claimant did not have a full and satisfactory explanation for the delay in making the claim. As indicated above, it was the whole of the Statement of Claim which was dismissed by the District Court and that order was upheld by the Court of Appeal. The appeal to this Court should be dismissed with costs. However, that order should be suspended for 28 days from the date of that order and for such further time as a Justice of this Court may order before the expiry of that 28 day period and on application made within 14 days of that order. The parties should be granted liberty to file on such application made as above written submissions as to whether any other order should be made by this Court respecting the position of Zucchini. This appeal challenges a judgment that followed a divided decision of the New South Wales Court of Appeal[15]. Special leave to appeal to this Court was not granted because of the inherent importance of the facts of the case. Rather, it was provided because the matter was said to raise a question of principle concerning the meaning of the Motor Accidents Act 1988 (NSW) ("the Act") as it applied to lateness in the making of claims and the commencement of proceedings in respect of claims governed by the Act.[15]Russo v Aiello (2001) 34 MVR 234. At the special leave hearing, this Court was given statistics that suggested that, in the year 1999/2000, 21 per cent of all claims under the Act, running into many hundreds, were made outside the times which the Act fixed[16]. The motor accidents claim form in the present case was completed during that period. The number of out of time claims recorded in the statistics reportedly fell in later years, dropping to 18 per cent in 2000/2001 and to 8 per cent in 2001/2002[17]. These falls suggest that the requirements of the Act as to time eventually became known to injured claimants and their legal representatives. [16]Special leave transcript, 9 August 2002 at 7-8. See also Russo v Aiello (2002) 23 (15) Leg Rep SL1 where further statistics are given.[17]Special leave transcript, 9 August 2002 at 8. Any superimposition of new time limitations upon a legal system that for centuries[18] had recognised a right, in most cases, to bring a damages claim in tort years after the cause of action arose, was bound to cause mistakes, and apparent injustices, at least at the beginning of the operation of the new legislation. This is what makes this appeal important not only to the present parties but for other cases affected by the interpretation of the provisions of the Act that this Court adopts. Many cases wait in the wings for the outcome of this appeal.[18]Since the Limitation Act 1623 (UK).The facts and provisions of the Act