THE NOMINAL DEFENDANT v GABRIEL & ANOR [2007] NSWCA 52
HEARING DATE(S):
1 February 2007
JUDGMENT DATE:
23 March 2007
JUDGMENT OF:
Hodgson JA at 1; Basten JA at 16; Campbell JA at 43
DECISION:
By majority; (1) Leave to appeal granted, and appeal allowed.; (2) Set aside the orders made by his Honour Judge Naughton QC on 13 March 2006.; (3) Notice of Motion filed by the plaintiff on 30 November 2005 dismissed.; (4) Respondent to pay costs of the appellant of the appeal and of the hearing in the court below.; (5) Respondent to have a certificate under the Suitors Fund Act 1951.
CATCHWORDS:
TORTS – NEGLIGENCE – Road Accident cases – admission of liability made by insurer out of court pursuant to section 81 Motor Accidents Compensation Act 1999 – exemption granted enabling claim to be pursued in court – insurer files defence denying liability – whether that defence liable to be struck out by reason of the earlier section 81 admission - PROCEDURE – striking out defence – motor accident claim – admission of liability under section 81 Motor Accidents Compensation Act 1999 – defence in court proceedings denies liability – whether defence liable to be struck out - EVIDENCE – confessions and admissions – whether admission able to be “withdrawn” - TRAFFIC LAW – Transport accident legislation – liability – admission by insurer – withdrawal – Motor Accidents Compensation Act 1999, section 81
[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.
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The Nominal Defendant v Gabriel [2007] NSWCA 52
Case
[2007] NSWCA 52
Decision Date
CaseChat Overview and Summary
The Nominal Defendant appealed to the Court of Appeal of New South Wales against a decision of Judge Naughton QC. The appeal concerned a motor accident claim brought by the respondent, Gabriel, against the appellant. An insurer had made an admission of liability out of court pursuant to section 81 of the *Motor Accidents Compensation Act 1999* (NSW), and an exemption had been granted allowing the claim to proceed in court. Despite this admission, the Nominal Defendant filed a defence denying liability.
The central legal issue before the Court of Appeal was whether the defence filed by the Nominal Defendant, which denied liability, should be struck out by reason of the earlier admission of liability made by the insurer under section 81 of the *Motor Accidents Compensation Act 1999*. This also raised the question of whether such an admission, once made, could be effectively "withdrawn" by the insurer in subsequent court proceedings.
The Court of Appeal, by majority, determined that the defence was not liable to be struck out. The majority reasoned that an admission made under section 81 of the *Motor Accidents Compensation Act 1999* did not have the effect of precluding the defendant from filing a defence denying liability in subsequent court proceedings. The court held that the admission under section 81 was a procedural step to facilitate the claim, but it did not operate as a binding admission of fact or law that would prevent the defendant from disputing liability in court. The principles concerning the withdrawal of admissions in evidence were considered, but the court found that the statutory scheme under the *Motor Accidents Compensation Act 1999* allowed for the denial of liability in court despite the earlier admission.
Consequently, leave to appeal was granted, and the appeal was allowed. The orders made by Judge Naughton QC were set aside, and the plaintiff's notice of motion to strike out the defence was dismissed. The respondent was ordered to pay the costs of the appellant of the appeal and of the hearing in the court below, and was granted a certificate under the *Suitors Fund Act 1951*.
Orders
Orders of the court
By majority; (1) Leave to appeal granted, and appeal allowed.; (2) Set aside the orders made by his Honour Judge Naughton QC on 13 March 2006.; (3) Notice of Motion filed by the plaintiff on 30 November 2005 dismissed.; (4) Respondent to pay costs of the appellant of the appeal and of the hearing in the court below.; (5) Respondent to have a certificate under the Suitors Fund Act 1951.