Brierley v Ellis [2014] NSWCA 230

Brierley v Ellis [2014] NSWCA 230

The primary judge erred in finding that the applicant had been advised on 7 June 2010 that he had a motor accident claim against the respondent subject to the MAC Act and associated time limits, and in treating the applicant's statutory declarations as contradictory and the subsequent periods as unexplained. The statutory declarations, admitted without objection, supported the applicant's account that his solicitors initially investigated a public liability or other possible claim and that he was first advised on 9 November 2010 to make a motor accident claim, after which steps were promptly taken. In circumstances where he reasonably relied on solicitors for advice about possible claims...

Jurisdiction
Australia
Judgment Date
17 July 2014
Procedural Posture
Motor Accident Compensation Damages Proceeding / Concurrent Application for Leave to Appeal and Appeal From District Court Orders Dismissing a Late Motor Accident Claim on the Ground of Delay
Outcome
Leave to appeal granted; appeal allowed; District Court orders set aside; respondent's motion to dismiss the proceedings dismissed.
Legal Topics
['late Motor Accident Claim' 'full and Satisfactory Explanation for Delay' 'hearsay Evidence Admitted Without Objection' 'weight of Statutory Declarations' 'application to Dismiss Proceedings Under S 73(7) of the Motor Accidents Compensation Act 1999 (nsw)']
['motor Accident Compensation' 'civil Procedure' 'evidence'] ['late Motor Accident Claim' 'full and Satisfactory Explanation for Delay' 'hearsay Evidence Admitted Without Objection' 'weight of Statutory Declarations' 'application to Dismiss Proceedings Under S 73(7) of the Motor Accidents Compensation Act 1999 (nsw)']

Case Brief

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Procedural Posture

Motor Accident Compensation Damages Proceeding / Concurrent Application for Leave to Appeal and Appeal From District Court Orders Dismissing a Late Motor Accident Claim on the Ground of Delay

Legal Issues

  1. 1 ['Whether the primary judge erred in not being satisfied that the applicant had provided a full and satisfactory explanation under s 66(2) of the Motor Accidents Compensation Act 1999 (NSW) for delay in making a motor accident claim.' 'Whether the primary judge erred in finding that the applicant was advised on 7 June 2010 that he had a motor accident claim against the respondent subject to the MAC Act and relevant time limits.' 'Whether the primary judge made improper use of the fact that the applicant relied on statutory declarations and did not tender direct evidence or submit to cross-examination.' "Whether the respondent's motion to dismiss the District Court proceedings under s 73(7) should have been dismissed."]

Ratio Decidendi

The primary judge erred in finding that the applicant had been advised on 7 June 2010 that he had a motor accident claim against the respondent subject to the MAC Act and associated time limits, and in treating the applicant's statutory declarations as contradictory and the subsequent periods as unexplained. The statutory declarations, admitted without objection, supported the applicant's account that his solicitors initially investigated a public liability or other possible claim and that he was first advised on 9 November 2010 to make a motor accident claim, after which steps were promptly taken. In circumstances where he reasonably relied on solicitors for advice about possible claims...

Court Disposition

Leave to appeal granted; appeal allowed; District Court orders set aside; respondent's motion to dismiss the proceedings dismissed.

Orders

  • ['Grant leave to appeal.' 'Appeal allowed.' 'Set aside orders of the District Court made on 22 March 2013.' "Dismiss the defendant's motion of 27 September 2012 seeking to dismiss the proceedings pursuant to s 73(7) of the Motor Accidents Compensation Act 1999 (NSW)." "Order the defendant to pay the plaintiff's...