CITATION: SEIB v MORTON [2000] NSWCA 139 FILE NUMBER(S): CA 40647/98 HEARING DATE(S): 26 November 1999 JUDGMENT DATE:
26 June 2000PARTIES :
GEORGE SEIB
v
KEVIN JOHN MORTONJUDGMENT OF: Priestley JA at 1; Meagher JA at 33; Handley JA at 34; Sheller JA at 60; Brownie AJA at 61
LOWER COURT JURISDICTION : District Court LOWER COURT
FILE NUMBER(S) :DC 2877/88 LOWER COURT
JUDICIAL OFFICER :Garling DCJ
COUNSEL: A R Lakeman/C H Weston (Appellant)
C R R Hoeben SC/ M A Elkaim (Respondent)SOLICITORS: H D W Ross, Gordon (Appellant)
Sparke Helmore (Respondent)CATCHWORDS: MOTOR ACCIDENTS - leave to commence proceedings out of time - whether extension of time would prejudice defendant LEGISLATION CITED: Motor Accidents Act 1988 (NSW) CASES CITED: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
DECISION: Appeal allowed with costs - orders made
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40647/98
DC 2877/88PRIESTLEY JA
MEAGHER JA
HANDLEY JA
SHELLER JA
BROWNIE AJAMOTOR ACCIDENTS - leave to commence proceedings out of time - whether extension of time would prejudice defendant
26 June 2000
SEIB v MORTON
The appellant was injured in July 1994 when the taxi he was driving was struck from behind by a car driven by the respondent who was driving with a blood alcohol concentration three times the legal limit. The appellant did not consult a solicitor until January 1996. The solicitor then gave a notice of the claim and filed a statement of claim in the District Court the same day contrary to s 52(1) which prohibited the commencement of proceedings 6 months after the giving of notice of the claim.
Those proceedings were discontinued in July 1996. Before this happened the applicant answered a request for particulars, the respondent had admitted liability and arranged for the appellant to be medically examined. The examination took place two weeks after the discontinuance.
The Judge dismissed the application on the ground that the respondent would be prejudiced if the extension was granted. His Honour found that (1) the delay in the proceedings denied the respondent the opportunity to investigate the medical position at an early time and this had caused prejudice and (2) the respondent did not have the opportunity, at an early time, to consider the appellant’s claim for economic loss.
HELD, on appeal by leave, allowing the appeal: (1) The Judge erred in approaching the question of prejudice on the assumption that the three year limitation period expired on 17 July 1997 when it expired on 17 January 1998. This was significant because the appellant was seeking an extension of a little over three months whereas his Honour thought he was seeking an extension of over 9 months. (2) The Judge’s finding of actual prejudice to the respondent could not be supported. There was no proper basis for a finding that the respondent would be prejudiced in the sense of being unable to have a fair trial of the…
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- AGLC
- Seib v Morton [2000] NSWCA 139
- Case
- [2000] NSWCA 139
- Decision Date
CaseChat Overview and Summary
The appeal in *Seib v Morton* concerned an application for leave to commence proceedings out of time in relation to a motor accident claim. The primary issue before the court was whether an extension of time to commence proceedings would cause prejudice to the defendant.
The court was required to determine whether the primary judge erred in granting leave to commence proceedings out of time, and if so, whether the appeal should be allowed. This involved considering the principles governing the grant of extensions of time under the relevant legislation and the assessment of prejudice to the defendant.
The court found that the primary judge had misapplied the principles relating to prejudice. It was held that the defendant would suffer significant prejudice if the extension were granted, particularly due to the passage of time and the potential for faded memories and loss of evidence. The court emphasised that the discretion to grant an extension of time must be exercised judicially, with a careful balancing of the interests of both parties.
Consequently, the appeal was allowed with costs, and the orders made by the primary judge were set aside.
The court was required to determine whether the primary judge erred in granting leave to commence proceedings out of time, and if so, whether the appeal should be allowed. This involved considering the principles governing the grant of extensions of time under the relevant legislation and the assessment of prejudice to the defendant.
The court found that the primary judge had misapplied the principles relating to prejudice. It was held that the defendant would suffer significant prejudice if the extension were granted, particularly due to the passage of time and the potential for faded memories and loss of evidence. The court emphasised that the discretion to grant an extension of time must be exercised judicially, with a careful balancing of the interests of both parties.
Consequently, the appeal was allowed with costs, and the orders made by the primary judge were set aside.
Orders
Orders of the court
Appeal allowed with costs - orders made
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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