The Nominal Defendant v Wardle - [2001] NSWCA 163

Reported Decision:
(2001) 33 MVR 502

New South Wales

Court of Appeal

CITATION: The Nominal Defendant v Wardle [2001] NSWCA 163

FILE NUMBER(S): CA 40073/00

HEARING DATE(S): 4/6/01

JUDGMENT DATE:
8 June 2001

PARTIES :

The Nominal Defendant
Warren John Wardle
Fairfield City Council

JUDGMENT OF: Mason P at 1; Meagher JA at 2; Fitzgerald AJA at 3

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : 3086/96

LOWER COURT
JUDICIAL OFFICER : Hosking DCJ

COUNSEL: Mr J Hislop QC with Ms P. Gormly (App)
Mr M Aldridge SC with Mr. A J Lidden
(Resp 1)
Mr R McIlwaine SC with Mr W Reynolds
(Resp 2)

SOLICITORS: Henry Davis York
Brydens
McCabes.

CATCHWORDS: Negligence - collision on local authority land between uninsured & unregistered trail bikes - action against Nominal Defendant - "Public street" - delay - action out of time - significant prejudice - refusal of leave to commence proceedings.

LEGISLATION CITED: Motor Accidents Act 1988

CASES CITED:
Boyton v The Nominal Defendant [1980] 2 NSWLR 509
Holt v Winter (2000) 49 NSWLR 128
Markwort v The Nominal Defendant [1999] NSWCA 267
Mercantile Mutual Insurance Company Limited v Turner Pty Limited (1982) 1 NSWLR 728
Schubert v Lee (195) 71 CLR 589

DECISION: The Nominal Defendant's appeal against the judgment in favour of Wardle is allowed with costs. The Nominal Defendant's appeal against the dismissal of its cross-claim against the Council is dismissed with costs. Parties to bring in short minutes.

Mason P: I agree with Fitzgerald AJA.

2 Meagher JA: I agree with Fitzgerald AJA.

3 Fitzgerald AJA: On 1 April 1990, the first respondent, Warren John Wardle, was seriously injured. The trail bike which he was riding and a trail bike ridden by another young person collided. The collision took place on property owned by the second respondent, Fairfield Council. Both trail bikes were unregistered and uninsured. The rider of the other trail bike, named Paul Sammari, has not been located.

4 On 20 December 1999, Wardle obtained judgment in the District Court for $536,943.00 against the appellant, the Nominal Defendant. The Nominal Defendant’s cross-claim against the Council was dismissed.

5 In his reasons for judgment, the trial Judge said: -

“The identity of the vehicle itself appears clear to me, it was a Suzuki RM125 unregistered motorcycle which may have been, and probably was owned or at least ridden at the relevant time, by the man, Paul Sammari.

I find as a fact that it was the rider of the uninsured and unregistered Suzuki motor cycle who was at fault in the collision and I find as a fact that the collision occurred because of the deliberate act of the rider of the Suzuki motorcycle in deflecting in his normal line and riding his cycle towards the plaintiff’s oncoming motorcycle at a time when there was no proper cause to do so, and that had it not been for that unlawful and negligent act on the part of that rider, there would…

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 The Nominal Defendant v Wardle

Details

AGLC: The Nominal Defendant v Wardle [2001] NSWCA 163
Case: [2001] NSWCA 163
Decision Date: 8 June 2001

CaseChat Overview and Summary

The case of *The Nominal Defendant v Wardle* concerned an appeal to the New South Wales Court of Appeal. The dispute arose from a collision between two uninsured and unregistered trail bikes, which occurred on land owned by a local council. The plaintiff, Wardle, sought to bring an action against the Nominal Defendant, an entity established to meet claims against uninsured or unidentified drivers. The Nominal Defendant sought to have the proceedings dismissed, arguing that the action was out of time and that granting leave to proceed would cause significant prejudice.

The primary legal issue before the Court of Appeal was whether the plaintiff had established sufficient grounds to be granted leave to commence proceedings against the Nominal Defendant out of time. This involved considering the interpretation of "public street" in the relevant legislation and the extent to which the Nominal Defendant would suffer significant prejudice if the proceedings were allowed to continue. The court also considered the Nominal Defendant's cross-claim against the local council.

The Court of Appeal found that the land on which the collision occurred did not constitute a "public street" for the purposes of the relevant legislation. Furthermore, the court determined that the Nominal Defendant would suffer significant prejudice if the plaintiff were permitted to proceed with the action out of time, particularly due to the delay in commencing proceedings and the potential for evidence to be lost. Consequently, the court allowed the Nominal Defendant's appeal against the judgment in favour of Wardle. The Nominal Defendant's appeal against the dismissal of its cross-claim against the Council was dismissed.

Orders

Orders of the court

The Nominal Defendant's appeal against the judgment in favour of Wardle is allowed with costs. The Nominal Defendant's appeal against the dismissal of its cross-claim against the Council is dismissed with costs. Parties to bring in short minutes.

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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CITATION:	The Nominal Defendant v Wardle [2001] NSWCA 163
FILE NUMBER(S):	CA 40073/00
HEARING DATE(S):	4/6/01
JUDGMENT DATE:	8 June 2001
PARTIES :	The Nominal Defendant Warren John Wardle Fairfield City Council
JUDGMENT OF:	Mason P at 1; Meagher JA at 2; Fitzgerald AJA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	3086/96
LOWER COURT JUDICIAL OFFICER :	Hosking DCJ

COUNSEL:	Mr J Hislop QC with Ms P. Gormly (App) Mr M Aldridge SC with Mr. A J Lidden (Resp 1) Mr R McIlwaine SC with Mr W Reynolds (Resp 2)
SOLICITORS:	Henry Davis York Brydens McCabes.
CATCHWORDS:	Negligence - collision on local authority land between uninsured & unregistered trail bikes - action against Nominal Defendant - "Public street" - delay - action out of time - significant prejudice - refusal of leave to commence proceedings.
LEGISLATION CITED:	Motor Accidents Act 1988
CASES CITED:	Boyton v The Nominal Defendant [1980] 2 NSWLR 509 Holt v Winter (2000) 49 NSWLR 128 Markwort v The Nominal Defendant [1999] NSWCA 267 Mercantile Mutual Insurance Company Limited v Turner Pty Limited (1982) 1 NSWLR 728 Schubert v Lee (195) 71 CLR 589
DECISION:	The Nominal Defendant's appeal against the judgment in favour of Wardle is allowed with costs. The Nominal Defendant's appeal against the dismissal of its cross-claim against the Council is dismissed with costs. Parties to bring in short minutes.