CITATION: Shirriff v Nominal Defendant [1999] NSWCA 152 FILE NUMBER(S): CA 40553/98 HEARING DATE(S): 19/05/99 JUDGMENT DATE:
28 June 1999PARTIES :
Sylvia Jeanne Shirriff v Nominal DefendantJUDGMENT OF: Beazley JA; Fitzgerald JA
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 3683/97 LOWER COURT JUDICIAL OFFICER: Bowden ADCJ
COUNSEL: G R Waugh (Claimant)
J Poulos QC/C Pinkerton (Opponent)SOLICITORS: Wright & Strickland (Claimant)
Sparke Helmore (Opponent)CATCHWORDS: Personal injury; motor vehicle accident; commencement of action out of time; whether order made "against good faith". ACTS CITED: Rule 12A of District Court; Subs52(4) Motor Accidents Act. DECISION: Appeal allowed
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL CA40554/98
DC 7021/96
BEAZLEY JA
FITZGERALD JA
Monday, 28 June 1999Sylvia SHIRRIFF v NOMINAL DEFENDANT1 BEAZLEY JA: I agree with Fitzgerald JA. 2 FITZGERALD JA: The claimant, Sylvia Shirriff, claims that she was struck by an unidentified motor vehicle when crossing the Pacific Highway at St Leonards on 4 December 1992. 3 On 27 November 1996, the claimant applied for the leave of the District Court under subs 52(4) of the Motor Accidents Act 1988 to commence an action against the Nominal Defendant out of time. The order applied for was made by an Acting District Court Judge on 27 February 1997. 4 The claimant commenced an action in the District Court on 4 July 1997 and a defence was delivered on 18 September. On 27 November, the action was set down for arbitration on 16 March 1998. 5 As a result of subpoenae issued in connection with the arbitration, the solicitors for the Nominal Defendant ascertained that the claimant had not only been an inpatient at Royal North Shore Hospital for the period which she had deposed to in support of her application for leave to commence proceedings out of time, she had also earlier attended briefly at Sydney Hospital where a blood sample had been taken which, on analysis, disclosed a blood alcohol content of 0.133. Further, notes by Sydney Hospital staff recorded a query whether the claimant had been struck by a car or injured herself falling. The latter possibility, which was based on an assumption that the claimant had soft tissue injuries, can be ignored at this point in the litigation. The claimant’s injuries included fractures of the right ankle, pubic ramus, right shoulder and coccyx, and she was not cross-examined on an affidavit in which she has sworn that she was struck by an unidentified vehicle. 6 On 17 July 1998, a District Court Judge set aside the order of 27 February 1997 giving the claimant leave to commence proceedings and struck out her application for leave and the action which she had commenced. This application for leave to appeal and, if leave is given, appeal are brought relative to the orders made on 17 July 1998. 7 The only source of power relied on for the orders of 17 July 1998 is Rule 12A of the District Court Rules, Cf
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- AGLC
- Shirriff v Nominal Defendant [1999] NSWCA 152
- Case
- [1999] NSWCA 152
- Decision Date
CaseChat Overview and Summary
Shirriff (the appellant) brought a claim for personal injuries arising from a motor vehicle accident against the Nominal Defendant (the respondent). The appellant sought to commence proceedings out of time, and the primary judge had made an order against the appellant. The appellant appealed this decision to the Court of Appeal of New South Wales.
The central legal issue before the Court of Appeal was whether the primary judge's order, which effectively prevented the appellant from pursuing her claim, was made "against good faith" within the meaning of the relevant legislation. This required the court to consider the circumstances under which an order could be characterised as being made in bad faith, particularly in the context of extending time for the commencement of proceedings in a personal injury claim.
The Court of Appeal considered the evidence and the conduct of the parties. It found that the primary judge had erred in making the order against the appellant. The court applied principles relating to the proper exercise of discretion in granting extensions of time and the threshold for demonstrating an order was made "against good faith". The court determined that the circumstances did not support a finding that the appellant's actions or the application for an extension of time were made in bad faith.
Consequently, the appeal was allowed, and the order made by the primary judge was set aside.
The central legal issue before the Court of Appeal was whether the primary judge's order, which effectively prevented the appellant from pursuing her claim, was made "against good faith" within the meaning of the relevant legislation. This required the court to consider the circumstances under which an order could be characterised as being made in bad faith, particularly in the context of extending time for the commencement of proceedings in a personal injury claim.
The Court of Appeal considered the evidence and the conduct of the parties. It found that the primary judge had erred in making the order against the appellant. The court applied principles relating to the proper exercise of discretion in granting extensions of time and the threshold for demonstrating an order was made "against good faith". The court determined that the circumstances did not support a finding that the appellant's actions or the application for an extension of time were made in bad faith.
Consequently, the appeal was allowed, and the order made by the primary judge was set aside.
Orders
Orders of the court
Appeal allowed
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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