Wythes v McCaffery & 1 Ors [2004] NSWCA 367

Wythes v McCaffery & 1 Ors [2004] NSWCA 367

The appeal failed because s36 of the Motor Accidents Compensation Act 1999 (NSW) was predicated on the person seeking joinder giving the Nominal Defendant the required notice, including the notice of claim, within the specified period. The appellant had not done so. If the original claim was incompetent for want of the notice required under the Motor Accidents Act 1988 (NSW), there was no occasion to join the Nominal Defendant; otherwise, the appellant was in a position to obtain the necessary notice and should have done so in order to comply with the mandatory requirement of s36(3).

Jurisdiction
Australia
Judgment Date
08 October 2004
Procedural Posture
Appeal in Motor Vehicle Accident Proceedings Concerning Joinder of the Nominal Defendant / Appeal From the District Court of New South Wales Against Dismissal of the Appellant's Notice of Motion Seeking Joinder of the Nominal Defendant
Outcome
Appeal dismissed.
Legal Topics
['joinder of Nominal Defendant' 'unregistered Motor Vehicle' 'contribution or Indemnity Between Tortfeasors' 'notice of Claim Requirements' 'motor Accidents Compensation Act 1999 (nsw)']
['civil Procedure' 'motor Accidents' 'tort Law'] ['joinder of Nominal Defendant' 'unregistered Motor Vehicle' 'contribution or Indemnity Between Tortfeasors' 'notice of Claim Requirements' 'motor Accidents Compensation Act 1999 (nsw)']

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Procedural Posture

Appeal in Motor Vehicle Accident Proceedings Concerning Joinder of the Nominal Defendant / Appeal From the District Court of New South Wales Against Dismissal of the Appellant's Notice of Motion Seeking Joinder of the Nominal Defendant

Legal Issues

  1. 1 ['Whether the trial judge erred in not ordering joinder of the Nominal Defendant.' 'Whether s36 of the Motor Accidents Compensation Act 1999 (NSW) applied to a motor accident that occurred before commencement of that Act.' 'Whether the appellant could avoid compliance with s36(3) of the Motor Accidents Compensation Act 1999 (NSW) because no notice of claim under s72 had been given to him.' 'Whether the appellant was in a position to obtain the necessary notice under the Motor Accidents Act 1988 (NSW) so as to comply with s36(3) of the Motor Accidents Compensation Act 1999 (NSW).']

Ratio Decidendi

The appeal failed because s36 of the Motor Accidents Compensation Act 1999 (NSW) was predicated on the person seeking joinder giving the Nominal Defendant the required notice, including the notice of claim, within the specified period. The appellant had not done so. If the original claim was incompetent for want of the notice required under the Motor Accidents Act 1988 (NSW), there was no occasion to join the Nominal Defendant; otherwise, the appellant was in a position to obtain the necessary notice and should have done so in order to comply with the mandatory requirement of s36(3).

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.' 'Appellant to pay the costs of the Second Respondent.']