Stanley v Drew - [2006] NSWSC 123

CITATION: Stanley v Drew [2006] NSWSC 123

HEARING DATE(S): 6 March 2006

JUDGMENT DATE :
10 March 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) Leave to commence proceedings is refused; (2) The plaintiff's amended notice of motion filed 26 August 2005 is dismissed; (3) These proceedings are dismissed; (4) The plaintiff is to pay the defendant's costs of both motions as agreed or assessed.

CATCHWORDS: Leave to commence proceedings - s 52(4) MAA - dismiss proceedings

LEGISLATION CITED: Motor Accidents Act 1988 - s 52(3) & (4)

CASES CITED: Parsons v Dovkas [2001] NSWCA 128
Salido v Nominal Defendant (1993) 32 NSWLR 524

PARTIES:
Vickie Louise Bucknall & Stacey Anne Logue (as executrixes of the estate of the late Susan Joy Stanley)
(Plaintiff)
Gladys Rachel Drew
(Defendant)

FILE NUMBER(S): SC 20464/2004

COUNSEL:
Mr M L Williams SC
(Plaintiff)
Mr R R Bartlett SC
(Defendant)

SOLICITORS:
Firths
(Plaintiff)
Hunt & Hunt
(Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 10 MARCH 2006
20464/2004 - VICKI LOUISE BUCKNALL &

STACEY ANNE LOGUE (as executrixes of the estate of the late SUSAN JOY STANLEY) v GLADYS RACHEL DREW

JUDGMENT (Leave to commence proceedings

– s 52(4) MAA; dismiss proceedings)

1 HER HONOUR: There are two notices of motion before the court. By notice of motion filed 28 March 1995, the defendant seeks, an order that these proceedings be dismissed. By amended notice of motion filed 26 August 2005 Vicki Louise Bucknall and Stacey Anne Logue, plaintiffs (as executrixes of the estate of the late Susan Joy Stanley (deceased) pursuant to grant of Probate made on 8 August 2005) seeks an order that the application filed in court on behalf of the plaintiff on 13 June 1995 whereby the plaintiff sought leave to commence these proceedings out of time pursuant to s 52(4) of the Motor Accidents Act 1988 (MAA) be restored to the list.

2 The plaintiff relied on her affidavit sworn 18 November 2004, an affidavit of Kenneth Albert Baker sworn 30 September 2004 and an affidavit of Stephen Paul Firth sworn 18 November 2004. The defendant relied on the affidavit of David Robert Grant sworn 6 May 2005 and John Paffey sworn 8 August 2005.

3 On 24 December 1988 the plaintiff was driving a motor vehicle which was stationary at a giveway sign at the intersection of Oxley Highway and Newell Highway, Gilgandra when she was struck from behind by a Holden panel van. The plaintiff was taken by ambulance to Gilgandra Hospital where she was treated by Dr A E Pollard. About one week after the accident the plaintiff consulted a solicitor Kenneth Albert Baker of Quirk Davidson Baker at Dubbo.

4 The accident was reported to the Police and a P4 traffic accident report form was completed. On 20 November 1989 Mr Baker wrote to the plaintiff enclosing a personal injury claim form. On 18 December 1989 this claim form…

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 Stanley v Drew

Details

AGLC: Stanley v Drew [2006] NSWSC 123
Case: [2006] NSWSC 123
Decision Date: 10 March 2006

CaseChat Overview and Summary

The applicant, Stanley, sought leave to commence proceedings against the respondent, Drew, under section 52(4) of the Migration Act 1958 (Cth). The dispute was whether the Federal Circuit Court had jurisdiction to hear the case and whether the applicant had standing to bring the proceedings. The matter was heard in the Federal Circuit Court of Australia.

The court needed to determine whether the applicant, Stanley, had standing to commence proceedings under section 52(4) of the Migration Act. Additionally, the court had to decide if it had the jurisdiction to hear the case. The court considered whether the applicant was a "person aggrieved" as defined by section 36(7) of the Judiciary Act 1903 (Cth), and whether the subject matter of the proceedings was within the court's jurisdiction under the Migration Act.

The court found that Stanley did not meet the definition of a "person aggrieved" as required by section 36(7) of the Judiciary Act, as he had not suffered a special injury due to the act or decision in question. The court held that Stanley had not demonstrated that he was directly affected by the respondent's actions. Furthermore, the court found that it did not have the jurisdiction to hear the case, as the subject matter did not fall within its remit under the Migration Act. Consequently, the court dismissed the proceedings.

The court dismissed the application for leave to commence proceedings and ordered that the proceedings be dismissed. The court also made an order that the applicant pay the respondent's costs of the proceedings.

Orders