Wythes v McCaffery and 1 Ors

CITATION:	Wythes v McCaffery & 1 Ors [2004] NSWCA 367
HEARING DATE(S):	27 August 2004
JUDGMENT DATE:	8 October 2004
JUDGMENT OF:	Beazley JA at 1; Santow JA at 2; Ipp JA at 24
DECISION:	Appeal dismissed. Appellant to pay the costs of the Second Respondent.
CATCHWORDS:	PROCEDURE - Motor vehicle accident involving teenaged boys on a rural property owned by the appellant - unregistered vehicle - Whether error in not ordering joinder of Nominal Defendant - whether Motor Accidents Act 1988 (NSW) or Motor Accidents Compensation Act 1999 (NSW) applied - whether appellant in a position to obtain necessary notice to comply with the mandatory requirement of s36(3) of Motor Accidents Compensation Act 1999 (NSW).
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946 s5(1)(c) Motor Accidents Act 1988 (NSW) s20B; s28B; s43 Motor Accidents Compensation Act 1999 (NSW) Pt 2.4; s3; s31; s33; s36; s67; s72; s74 Road Transport (Vehicle Registration) Act 1997
PARTIES :	Michael David WYTHES (Appellant) Paul John McCAFFERY (First Respondent) NOMINAL DEFENDANT (Second Respondent)
FILE NUMBER(S):	CA 40777/03
COUNSEL:	P BLACKETT, SC/ D WILKINS (Appellant) D CAMPBELL, SC (First Respondent) A S MORRISON, SC (Second Respondent)
SOLICITORS:	Hunt & Hunt - Sydney (Appellant) Messenger & Messenger - Orange (First Respondent) I V Knight, Crown Solicitors (Second Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 172/01
LOWER COURT JUDICIAL OFFICER :	O'Reilly DCJ

CA 40777/03
CL 172/01

BEAZLEY JA
SANTOW JA
IPP JA

8 OCTOBER 2004

Michael David WYTHES v Paul John McCAFFERY & 1 Ors

Judgment

1 BEAZLEY JA: I agree with Santow JA.

2 SANTOW JA:

INTRODUCTION
The sole issue left in this appeal, following compromise and settlement of part thereof, concerns whether the trial judge O’Reilly DCJ was in error in not ordering the joinder of the Nominal Defendant on the appellant’s application. The trial judge instead dismissed the appellant’s Notice of Motion seeking that joinder pursuant to s36 of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”), being the successor provision to s20B of the Motor Accidents Act 1988 (NSW) (“MAA”).

3 The trial judge, O’Reilly DCJ, had refused the application on the basis that the appellant had not framed his action brought by way of second cross-claim so as to qualify as “a claim or proceeding under this Act” as required by s36(1) of MACA; Judgment Red, 37U-V.

4 The appeal arises in circumstances which began with a motor vehicle accident involving four teenaged boys on 24 September 1995 on a rural property owned by the appellant, a Mr Michael Wythes.

5 The original claim was brought by one of the teenaged passengers who was injured, a Mr Paul McCaffery, then fourteen years old. He suffered injuries when the car, driven by another teenager, collided with a tree. The four teenagers in the car were at the property at the time for a camping weekend. A set of keys had been left in the ignition. One of the boys, Andrew…