Wright v Australian Associated Motor Insurers Ltd - [1999] NSWSC 208

CITATION: Wright v Australian Associated Motor Insurers Ltd [1999] NSWSC 208

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 10461/98

HEARING DATE(S): 8 March 1999-9 March 1999

JUDGMENT DATE:
18 March 1999

PARTIES :

Mark Francis Wright (Respondent)
Australian Associated Motor Insurers Ltd (Appellant)

JUDGMENT OF: Studdert J

LOWER COURT JURISDICTION: Supreme Court (Master)

LOWER COURT FILE NUMBER(S) : 10461/98

LOWER COURT JUDICIAL OFFICER: Master Harrison

COUNSEL : M.S. Jacobs QC/P. Liniger (Respondent)
B.M. Toomey QC/G. Bateman (Appellant)

SOLICITORS: Dodaro & Associates (Respondent)
McMahons (Appellant)

CATCHWORDS: Limitation of actions; extension of time sought; Master makes order; appeal from Master's decision; whether exercise of Master's discretion miscarried; whether delay made chance of fair trial unlikely; whether defendant would suffer significant prejudice; evidentiary burden on proposed defendant.

ACTS CITED: Limitation Act
Limitation of Actions Act (Qld)
Motor Accidents Act
Supreme Court Act

CASES CITED: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Council of the City of Sydney v Zegarac (unreported
NSWCA
3 September 1997)
Do Carmo v Ford Excavations Pty Limited (1981) 1 NSWLR 409
Henricks v Agnew (unreported
NSWCA
23 October 1997)
House v The King (1936) 55 CLR 499
Martin v Abbott Australasia Pty Limited (1981) 2 NSWLR 430
Salido v The Nominal Defendant (1993) 32 NSWLR 524

DECISION: Appeal dismissed

- 18 -
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
STUDDERT J
Thursday 18 March 1999
10461/98 MARK FRANCIS WRIGHT v AUSTRALIAN ASSOCIATED MOTOR INSURERS LTD
JUDGMENT
1 HIS HONOUR : This is an appeal from a decision of Master Harrison. Mark Francis Wright, to whom I shall refer as “the respondent” (the plaintiff before the master), claims to have suffered injury in a motor vehicle accident on 30 March 1991. The Motor Accidents Act governed any claim arising from the accident, and in particular s 52(4) of the statute applied. In the form relevant for these proceedings, that sub-section provided:
“A claimant is not entitled to commence proceedings in respect of a claim more than three years after the date on which the claim must be made in accordance with section 43 except with the leave of the court in which the proceedings are to be taken.”
2 By summons filed 20 February 1998 the respondent sought leave of the court to commence proceedings notwithstanding the lapse of time since his accident, and the application was successful. Australian Associated Motor Insurers Ltd was the appellant named in the summons and it is convenient to refer to that insurer as “the appellant” for present purposes. It now appeals to this Court, and in the notice of appeal the following grounds are stated:
“1. The learned Master erred in failing to reject the Plaintiff’s application for leave to proceed brought pursuant to Section 52(4) of the Motor Accidents Act 1988, as amended (‘the Act’).
2. In granting the Plaintiff leave to proceed pursuant to section 52(4) of the Act, the learned Master failed to take into account the prejudice imposed upon the Defendant.
3. The…

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.

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Details

Case: [1999] NSWSC 208
Decision Date: 18 March 1999

CaseChat Overview and Summary

The case before the court involved Wright, the plaintiff, and Australian Associated Motor Insurers Ltd, the defendant. Wright sought to extend the time limit for bringing an action against the defendant, which had already expired. The application for an extension was initially made to a Master of the Court, who granted the extension. The defendant subsequently appealed the Master's decision, challenging the exercise of discretion in granting the extension. The court was tasked with determining whether the Master's decision to grant the extension was erroneous and whether the delay in bringing the action prejudiced the defendant's ability to conduct a fair trial.

The primary legal issues before the court were whether the Master's decision to extend the time limit was flawed and whether the delay in bringing the action prejudiced the defendant's ability to conduct a fair trial. The court had to consider whether the delay created an undue risk that the chance of a fair trial would be significantly reduced and whether the defendant would suffer significant prejudice as a result of the delay. The burden of proof lay on the proposed defendant to demonstrate that the delay would prejudice their ability to conduct a fair trial.

The court found that the Master's exercise of discretion was not erroneous and that the delay did not prejudice the defendant's ability to conduct a fair trial. The court concluded that the delay did not significantly increase the risk of unfairness and that the defendant would not suffer significant prejudice. Consequently, the appeal was dismissed, and the Master's order granting the extension was upheld. The court emphasised that the Master had carefully considered all relevant factors, including the degree of delay, the reason for the delay, and the potential prejudice to the defendant. The court also noted that the defendant had not provided sufficient evidence to demonstrate that the delay would prejudice their ability to conduct a fair trial. The final order of the court was that the appeal by Australian Associated Motor Insurers Ltd was dismissed, and the Master's decision to grant the extension of time was upheld.

Orders