D'Aquino Bros Pty Limited v Glanville [2003] NSWCA 276

D'Aquino Bros Pty Limited v Glanville [2003] NSWCA 276

The appeal succeeded only in relation to the two final declaratory orders because Boyd-Boland ADCJ was dealing with an interlocutory application and had no power to make them. Otherwise, the grant of leave was not shown to involve error: the unchallenged findings showed no lack of diligence by the opponent or his present solicitors, and the claimant did not establish significant prejudice from the delay because the lost logbook was not shown likely to assist the claimant, the medical evidence allowed any aggravation issue to be canvassed, and the material did not establish real prejudice from difficulty identifying witnesses.

Jurisdiction
Australia
Judgment Date
22 October 2003
Procedural Posture
Appeal in Personal Injury Proceedings Concerning Leave to Commence Proceedings Out of Time Under the Motor Accidents Act 1988 / Appeal From District Court Orders Granting Leave to Commence Proceedings Out of Time and Making Ancillary Declaratory Orders
Outcome
Appeal upheld in part by setting aside two declaratory orders; otherwise dismissed.
Legal Topics
['leave to Commence Proceedings Out of Time' 'fair and Just Extension of Time' 'forensic Prejudice Caused by Delay' 'identification of Vehicle Involved in Accident' 'declaratory Orders on Interlocutory Application']
['limitation of Actions' 'motor Accidents' 'workers Compensation' 'personal Injury'] ['leave to Commence Proceedings Out of Time' 'fair and Just Extension of Time' 'forensic Prejudice Caused by Delay' 'identification of Vehicle Involved in Accident' 'declaratory Orders on Interlocutory Application']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal in Personal Injury Proceedings Concerning Leave to Commence Proceedings Out of Time Under the Motor Accidents Act 1988 / Appeal From District Court Orders Granting Leave to Commence Proceedings Out of Time and Making Ancillary Declaratory Orders

Legal Issues

  1. 1 ['Whether it was fair and just under s 52(4) of the Motor Accidents Act 1988 to grant the opponent leave to commence proceedings out of time.' 'Whether the opponent or his legal representatives demonstrated a lack of diligence in ascertaining and asserting his rights.' 'Whether the claimant or its third party insurer would suffer significant prejudice by reason of the delay, including from the lost logbook, possible aggravation of injuries, and difficulty identifying witnesses.' 'Whether Boyd-Boland ADCJ had power on an interlocutory application to make final declaratory orders about the explanation for delay and the identity of the vehicle.']

Ratio Decidendi

The appeal succeeded only in relation to the two final declaratory orders because Boyd-Boland ADCJ was dealing with an interlocutory application and had no power to make them. Otherwise, the grant of leave was not shown to involve error: the unchallenged findings showed no lack of diligence by the opponent or his present solicitors, and the claimant did not establish significant prejudice from the delay because the lost logbook was not shown likely to assist the claimant, the medical evidence allowed any aggravation issue to be canvassed, and the material did not establish real prejudice from difficulty identifying witnesses.

Court Disposition

Appeal upheld in part by setting aside two declaratory orders; otherwise dismissed.

Orders

  • ["Declaratory orders made by Boyd-Boland ADCJ relating to the opponent's full and satisfactory explanation of the delay and to the identification of the Isuzu as the vehicle used by the opponent at the time of his accident on 27 January 1994 were set aside." 'Otherwise the appeal was dismissed.' 'The claimant was...