Russo v Aiello

Case [2001] NSWCA 306
CITATION: Russo v Aiello [2001] NSWCA 306
FILE NUMBER(S): CA 40696/00
HEARING DATE(S): 20/06/01
JUDGMENT DATE:
13 September 2001

PARTIES :
Lido Russo (1App)
Zucchini Pty Ltd (2App)
John Domonic Aiello (R)
JUDGMENT OF: Meagher JA at 1; Hodgson JA at 2; Young CJ in Eq at 24
LOWER COURT JURISDICTION : District Court
LOWER COURT
FILE NUMBER(S) : 		DC53/00
LOWER COURT
JUDICIAL OFFICER :		 Dodd DCJ
COUNSEL: A Lakeman (A)
J D Hislop QC/D J Russell (R)
SOLICITORS: Turner Whelan (A)
GIO Australia, CTP Claims (R)
CATCHWORDS: Motor vehicle- Accident causing personal injury- Claim made out of time- Whether District Court Judge could be satisfied that there was no full and satisfactory explanation for the delay. Words & Phrases- "Reject". (D)
LEGISLATION CITED: Motor Accidents Act 1988, ss 40(2), 43A(7)
CASES CITED:
 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Browne v Dunn (1894) 6 R 67
Kanj v Kassem (Sinclair DCJ 31.3.2000)
Reg v Lichfield (Mayor) (1841) 1 QB 453; 113 ER 1206
DECISION: By majority: (1) Leave to appeal granted. (2) Appeal dismissed with costs.


THE SUPREME COURT

OF NEW SOUTH WALES


      CA 40696 of 2000
      DC 53 of 2000

      MEAGHER JA
      HODGSON JA
      YOUNG CJ in Eq

      Thursday 13 September 2001

      RUSSO v AIELLO

The plaintiff was injured in a motor vehicle on 11 January 1997. He saw a solicitor that month who alerted him to the need to complete a claim form. The plaintiff decided that his disabilities would improve and went overseas. He obtained more legal advice in 1998. He submitted a claim form in March 1999. The insurer did not accept the plaintiff’s reasons as constituting sufficient grounds to waive the delay.

The plaintiff filed his claim in the District Court on 6 January 2000. The defendant successfully moved to dismiss the claim as a late claim. Under section 43A(7) of the Motor Vehicles Act 1988 the Court must dismiss the claim if satisfied that the claimant does not have a full and satisfactory explanation for the delay.

The Judge also rejected the plaintiff’s contention that, on the facts, the insurer had not rejected his reasons for delay.

HELD: On appeal (Hodgson JA dissenting): The Court held that although the District Court had directed its mind to the explanation given to the insurer, and not, as it ought, to the explanation to the Court, in the present case the conclusion reached below was inevitable.

Per Hodgson JA: The decision below was so affected by serious error that the plaintiff was denied procedural justice, the appeal should be allowed and the proceedings returned to the District Court.

[NOTE - For simplicity the above summary intentionally omits the fact that there were two plaintiffs, an individual and a company controlled by him which was suing per quod servitium amisit]

      ORDERS

(1) Leave to appeal granted;

(2) Appeal dismissed with costs.


      ************

THE SUPREME COURT

OF NEW SOUTH WALES


      CA 40696 of 2000
      DC 53 of 2000

      MEAGHER JA
      HODGSON…

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Russo v Aiello [2001] NSWCA 306
Case
[2001] NSWCA 306
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CaseChat Overview and Summary

The case of *Russo v Aiello* concerned an appeal to the New South Wales Court of Appeal following a decision by a District Court Judge. The primary dispute involved a claim for personal injury arising from a motor vehicle accident, where the claimant sought to bring proceedings out of time. The central question before the District Court Judge, and subsequently the Court of Appeal, was whether the Judge had erred in being satisfied that there was no full and satisfactory explanation for the delay in commencing the action.

The legal issues before the Court of Appeal were whether the District Court Judge had correctly applied the relevant legal principles when assessing the adequacy of the explanation for the delay, and whether the Judge's finding that there was no full and satisfactory explanation was a decision that no reasonable judge could have reached. The Court was required to consider the discretion afforded to a judge in determining whether to grant leave to proceed out of time, and the threshold for overturning such a decision on appeal.

The majority of the Court of Appeal, comprising Meagher and Hodgson JJA, with Young CJ in Eq dissenting, dismissed the appeal. Their Honours found that the District Court Judge had not erred in their assessment of the explanation for the delay. The Court applied the principles governing the granting of leave to commence proceedings out of time, which requires a claimant to provide a full and satisfactory explanation for the delay. The majority concluded that the explanation provided by the claimant was insufficient to meet this standard, and therefore the Judge was entitled to refuse leave.

Consequently, by majority, leave to appeal was granted, but the appeal itself was dismissed with costs.

Orders

Orders of the court

By majority: (1) Leave to appeal granted. (2) Appeal dismissed with costs.

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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