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Stein v Ryden

Stein v Ryden

Case [2022] NSWCA 212 26 October 2022

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Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Stein v Ryden [2022] NSWCA 212
Hearing dates: 9 September 2022
Date of orders: 26 October 2022
Decision date: 26 October 2022
Before: Macfarlan JA at [1]
Gleeson JA at [2]
Griffiths AJA at [3]
Decision:
(1) The applicant has leave to appeal.
(2) The appeal is allowed.
(3) The judgment and orders dated 16 December 2021 are set aside, save for order 1.
(4) Leave is granted to the applicant to commence proceedings in the District Court of NSW pursuant to s 109(1) of the Motor Accidents Compensation Act 1999 (NSW).
(5) The respondent pay the applicant’s costs of and incidental to the appeal and of the proceedings below.
(6) The notice of contention filed on 11 April 2022 is dismissed.

Catchwords:
LIMITATION OF ACTIONS – Motor accidents – Failure to commence proceedings within three years of accident – Requirements of leave under Motor Accidents Compensation Act 1999 (NSW) ss 66(2) and 109(3)(a) – Whether a “full and satisfactory” explanation for delay – Whether evidence required by each of the applicant’s former legal advisors to constitute a full and satisfactory explanation for delay

Legislation Cited:
District Court Act 1973 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Personal Injury Commission Act 2020 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited:
Dijakovicv Perez [2015] NSWCA 174; (2015) 71 MVR 334
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hunter v Roberts [2019] NSWCA 116; (2019) 88 MVR 456
Karambelas v Zaknic (No 2) [2014] NSWCA 433; (2014) 69 MVR 127
Nominal Defendant v Browne [2013] NSWCA 19; (2013) 64 MVR 214
Rahman v Al-Maharmeh [2021] NSWCA 31; (2021) 95 MVR 394
Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408

Category: Principal judgment
Parties: Annemie Nathalie Stein (Applicant)
Sten Patrick Ryden (Respondent)
Representation:
Counsel:
B Kelleher SC, B Jones (Applicant)
J Turnbull SC, J Sleight (Respondent)
Solicitors:
Stacks Goudkamp (Applicant)
Carroll & O’Dea Lawyers (Respondent)

File Number(s): 2021/00360651
2022/00269744
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Civil

Citation:

NA

Date of Decision:

16 December 2021

Before:

Kearns ADCJ

File Number(s):

2021/00249676

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Ms Stein, was injured in a motor vehicle accident on 7 February 2014. The respondent’s compulsory third-party insurer admitted liability for the accident. Ms Stein approached Stacks Goudkamp for legal advice on 21 May 2014. A claim was lodged with the Claims Assessment and Resolution Service (CARS) on 2 September 2020.

The CARS was replaced by the Personal Injury Commission (PIC) on 1 March 2021. The PIC did not have jurisdiction to determine Ms Stein’s claim because it related to residents of two different States and therefore involved federal jurisdiction. Accordingly, it became necessary for Ms Stein to commence proceedings in the District Court.

Pursuant to s 109(1) of…

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 Stein v Ryden

Details

AGLC: Stein v Ryden [2022] NSWCA 212
Case: [2022] NSWCA 212
Decision Date: 26 October 2022

CaseChat Overview and Summary

In *Stein v Ryden*, the New South Wales Court of Appeal considered an application for leave to commence proceedings in the District Court of NSW out of time, pursuant to section 109(1) of the *Motor Accidents Compensation Act 1999* (NSW). The applicant sought to appeal a decision of the primary judge who had refused to grant this leave.

The central legal issues before the Court of Appeal were whether the primary judge had erred in finding that the applicant had failed to provide a "full and satisfactory" explanation for the delay in commencing proceedings, as required by sections 66(2) and 109(3)(a) of the Act. Specifically, the court had to determine whether the evidence provided by the applicant's former legal advisors constituted a sufficient explanation for the delay.

The Court of Appeal allowed the appeal, finding that the primary judge had erred in their assessment of the explanation for the delay. The court held that the evidence from the applicant's former legal advisors, detailing the reasons for the delay in issuing proceedings, was sufficient to satisfy the "full and satisfactory" explanation requirement. Consequently, the Court of Appeal granted the applicant leave to commence proceedings in the District Court of NSW and set aside the previous orders refusing leave.

Orders

Orders of the court

(1) The applicant has leave to appeal.

(2) The appeal is allowed.

(3) The judgment and orders dated 16 December 2021 are set aside, save for order 1.

(4) Leave is granted to the applicant to commence proceedings in the District Court of NSW pursuant to s 109(1) of the Motor Accidents Compensation Act 1999 (NSW).

(5) The respondent pay the applicant’s costs of and incidental to the appeal and of the proceedings below.

(6) The notice of contention filed on 11 April 2022 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Actions

Citations

Stein v Ryden [2022] NSWCA 212

Most Recent Citation

McDonald v Burchmore [2022] NSWDC 709

Cases Citing This Decision

De Roover v Northern Sydney Local Health District [2025] NSWDC 317
Citation 1 (Para 9)

…In Stein v Ryden [2022] NSWCA 212, the Court of Appeal held that the trial judge in that case had erred by putting too much emphasis on the lack of direct evidence from the solicitors who had carriage of the applicant's matter. Their Honours noted that it was the applicant's explanation for the delay that was the c…
Kiritheran Thambirajah v Allianz Australia Insurance Limited [2023] NSWDC 534
Citation 2 (Para 88)

…claimant’s position as to whether or not the delay which has occurred was reasonably justifiable. That said, in Stein v Ryden (2022) 102 MVR 309; [2022] NSWCA 212, the Court of Appeal collected, with reference to Walker v Howard (supra), Karambelas v Zaknic (No 2) (2014) 69 MVR 127; [2014] NSWCA 433, Rahman v Al-Ma…
Marshall v O'Flaherty (Costs) [2023] NSWDC 61
Citation 3 (Para 10)

…id was entirely unreasonable and did not favour the application of any “indulgence” factor. Such an approach had been endorsed in Stein v Ryden [2022] NSWCA 212, in that costs orders were made in favour of the plaintiff, including the costs of the hearing below.…
Chapman v Gibbo's Transport Pty Ltd (No 2) [2023] NSWSC 186
Citation 4 (Para 32)

…In a recent decision of 26 October 2022, Stein v Ryden [2022] NSWCA 212 ( Stein ), Griffiths AJA, with whom Macfarlan and Gleeson JJA agreed, applied both Walker and Karambelas . At [32] to [39], his Honour provides a helpful survey of the authorities on the topic of what constitutes a full and satisfactory explana…
McDonald v Burchmore [2022] NSWDC 709
Citation 5 (Para 25)

…More recently, in Stein v Ryden [2022] NSWCA 212, Griffiths JA, with whom Macfarlane and Gleeson JJA agreed, said this;…

See all citing cases →

Cases Cited

Rahman v Al-Maharmeh [2021] NSWCA 31
Citation 1 (Para 30)

…aised an issue of important principle because the primary judge’s approach was inconsistent with authorities, particularly Rahman v Al-Maharmeh [2021] NSWCA 31; (2021) 95 MVR 394 and Dijakovic v Perez [2015] NSWCA 174; (2015) 71 MVR 334 (and other authorities referred to therein).…
Hunter v Roberts [2019] NSWCA 116
Citation 2 (Para 38)

…nt that some reasonable claimants in the claimant’s position would have experienced the same delay as the claimant (citing Hunter v Roberts [2019] NSWCA 116; (2019) 88 MVR 456 at [18] per Meagher JA; Brereton JA and Simpson AJA agreeing).…
Dijakovic v Perez [2015] NSWCA 174
Citation 3 (Para 30)

…judge’s approach was inconsistent with authorities, particularly Rahman v Al-Maharmeh [2021] NSWCA 31; (2021) 95 MVR 394 and Dijakovic v Perez [2015] NSWCA 174; (2015) 71 MVR 334 (and other authorities referred to therein).…
Karambelas v Zaknic (No. 2) [2014] NSWCA 433
Citation 4 (Para 34)

…Gleeson JA discussed the expression “full and satisfactory explanation” at [15] to [19] with reference to Karambelas v Zaknic (No 2) [2014] NSWCA 433; (2014) 69 MVR 127 at [16] per Meagher JA (Basten and Simpson JJA agreeing). His Honour identified the following two requirements for an explanation to be “full and s…
Nominal Defendant v Browne [2013] NSWCA 197
Citation 5 (Para 42)

…The respondent relied upon this Court’s decision in Nominal Defendant v Browne [2013] NSWCA 197; (2013) 64 MVR 214 and, in particular, Basten JA’s statement at [24] to the effect that, in determining whether an explanation is “satisfactory” there may be a “need to look to the actions of persons other than the claim…
Tahana v Secure Funding Pty Ltd [2013] NSWCA 19
Citation 6

…berts [2019] NSWCA 116; (2019) 88 MVR 456 Karambelas v Zaknic (No 2) [2014] NSWCA 433; (2014) 69 MVR 127 Nominal Defendant v Browne [2013] NSWCA 19; (2013) 64 MVR 214 Rahman v Al-Maharmeh [2021] NSWCA 31; (2021) 95 MVR 394 Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408 Category: Principal judgment Parties:…
Walker v Howard [2009] NSWCA 408
Citation 7 (Para 37)

…the claimant who is obliged to provide the explanation for the delay in commencing proceedings (citing Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408 at [55] and [56]). Brereton JA added at [41] that evidence as to why the claimant’s solicitors failed to implement her instructions to commence proceedings was…
Mancini v Thompson [2002] NSWCA 38
Citation 8 (Para 46)

…aimant”, is so that the Court can evaluate all of the reasons for the delay and decide whether they are full and satisfactory: Mancini v Thompson [2002] NSWCA 38 at [46]. It is for this reason that it has been said that the applicant for leave cannot “pick and choose” the information to be given relevant to the de…
House v R [1936] HCA 40
Citation 9 (Para 33)

…s to whether the satisfaction of those conditions is truly a discretionary decision in the sense discussed in House v The King (1936) 55 CLR 499; [1936] HCA 40, his Honour proceeded on the basis that the applicant needed to satisfy the well-known criteria in House v The King .…
House v The King 63 WN 176
Citation 10 (Para 33)

…differing views had been expressed as to whether the satisfaction of those conditions is truly a discretionary decision in the sense discussed in House v The King (1936) 55 CLR 499; [1936] HCA 40, his Honour proceeded on the basis that the applicant needed to satisfy the well-known criteria in House v The King .…

Legislation Cited

Motor Accidents Compensation Act 1999 (NSW) 109(3)(a), 66(2)
3 mentions (from Para 3)
Supreme Court Act 1970 (NSW) 101(2)(e))
2 mentions (from Para 4)
District Court Act 1973 (NSW)
1 mention
Personal Injury Commission Act 2020 (NSW)
1 mention (from Para 8)

Medium Neutral Citation:	Stein v Ryden [2022] NSWCA 212
Hearing dates:	9 September 2022
Date of orders:	26 October 2022
Decision date:	26 October 2022
Before:	Macfarlan JA at [1] Gleeson JA at [2] Griffiths AJA at [3]
Decision:	(1) The applicant has leave to appeal. (2) The appeal is allowed. (3) The judgment and orders dated 16 December 2021 are set aside, save for order 1. (4) Leave is granted to the applicant to commence proceedings in the District Court of NSW pursuant to s 109(1) of the Motor Accidents Compensation Act 1999 (NSW). (5) The respondent pay the applicant’s costs of and incidental to the appeal and of the proceedings below. (6) The notice of contention filed on 11 April 2022 is dismissed.
Catchwords:	LIMITATION OF ACTIONS – Motor accidents – Failure to commence proceedings within three years of accident – Requirements of leave under Motor Accidents Compensation Act 1999 (NSW) ss 66(2) and 109(3)(a) – Whether a “full and satisfactory” explanation for delay – Whether evidence required by each of the applicant’s former legal advisors to constitute a full and satisfactory explanation for delay
Legislation Cited:	District Court Act 1973 (NSW) Motor Accidents Compensation Act 1999 (NSW) Personal Injury Commission Act 2020 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Dijakovicv Perez [2015] NSWCA 174; (2015) 71 MVR 334 House v The King (1936) 55 CLR 499; [1936] HCA 40 Hunter v Roberts [2019] NSWCA 116; (2019) 88 MVR 456 Karambelas v Zaknic (No 2) [2014] NSWCA 433; (2014) 69 MVR 127 Nominal Defendant v Browne [2013] NSWCA 19; (2013) 64 MVR 214 Rahman v Al-Maharmeh [2021] NSWCA 31; (2021) 95 MVR 394 Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408
Category:	Principal judgment
Parties:	Annemie Nathalie Stein (Applicant) Sten Patrick Ryden (Respondent)
Representation:	Counsel: B Kelleher SC, B Jones (Applicant) J Turnbull SC, J Sleight (Respondent) Solicitors: Stacks Goudkamp (Applicant) Carroll & O’Dea Lawyers (Respondent)
File Number(s):	2021/00360651 2022/00269744
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Civil Citation: NA Date of Decision: 16 December 2021 Before: Kearns ADCJ File Number(s): 2021/00249676