Shirriff v Nominal Defendant [1999] NSWCA 152

Shirriff v Nominal Defendant [1999] NSWCA 152

On the unchallenged evidence, neither the claimant nor her legal representatives knew or ought to have known of the Sydney Hospital attendance, blood sample and blood alcohol result, and the omission to disclose those matters did not involve misconduct or dishonourable conduct. The Nominal Defendant therefore failed to establish that the order of 27 February 1997 was made against good faith, so it should not have been set aside.

Jurisdiction
Australia
Judgment Date
28 June 1999
Procedural Posture
Personal Injury; Motor Vehicle Accident; Commencement of Action Out of Time / Application for Leave to Appeal and Appeal From District Court Orders Setting Aside Leave to Commence Proceedings Out of Time and Striking Out the Application and Action
Outcome
Leave to appeal granted; appeal allowed with costs.
Legal Topics
['unidentified Motor Vehicle' 'nominal Defendant' 'extension of Time' 'setting Aside Orders' 'good Faith' 'district Court Rules']
['personal Injury' 'motor Accidents' 'civil Procedure'] ['unidentified Motor Vehicle' 'nominal Defendant' 'extension of Time' 'setting Aside Orders' 'good Faith' 'district Court Rules']

Case Brief

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Procedural Posture

Personal Injury; Motor Vehicle Accident; Commencement of Action Out of Time / Application for Leave to Appeal and Appeal From District Court Orders Setting Aside Leave to Commence Proceedings Out of Time and Striking Out the Application and Action

Legal Issues

  1. 1 ['Whether the District Court order granting the claimant leave under subs 52(4) of the Motor Accidents Act 1988 to commence proceedings out of time was made against good faith within Rule 12A of the District Court Rules.' "Whether the District Court was correct to set aside the leave order and strike out the claimant's application for leave and action."]

Ratio Decidendi

On the unchallenged evidence, neither the claimant nor her legal representatives knew or ought to have known of the Sydney Hospital attendance, blood sample and blood alcohol result, and the omission to disclose those matters did not involve misconduct or dishonourable conduct. The Nominal Defendant therefore failed to establish that the order of 27 February 1997 was made against good faith, so it should not have been set aside.

Court Disposition

Leave to appeal granted; appeal allowed with costs.

Orders

  • ['Set aside the orders made in the District Court on 17 July 1998.' 'The Nominal Defendant should pay the costs of the appeal.']