ATIKULLAH V. SEFTON [2001] NSWCA 385

ATIKULLAH V. SEFTON [2001] NSWCA 385

The respondent breached s.50A by failing to give details of the significant Griffiths v. Kerkemeyer claim before commencing proceedings, but that breach did not require dismissal of the whole proceedings because the claim was severable and could be struck out. The appellant did not establish error in the primary judge's treatment of s.48. Although the primary judge should have dealt with the respondent's leave application, leave was unnecessary because s.52(4A) applied to the claim once the Griffiths v. Kerkemeyer component was struck out, and s.52(2)(b) did not apply to the insurer's admission of breach of duty of care.

Jurisdiction
Australia
Judgment Date
05 November 2001
Procedural Posture
Torts Negligence Motor Accident / Appeal to the New South Wales Court of Appeal From Rolfe Dcj's Dismissal of the Appellant's Notice of Motion in District Court Proceedings
Outcome
Appeal allowed in part; the Griffiths v. Kerkemeyer claim was struck out; the appellant's Notice of Motion was otherwise dismissed; the respondent's Notice of Motion was dismissed; each party was ordered to bear its own costs of the Notices of Motion and the appeal.
Legal Topics
['negligence' 'pre Proceeding Co Operation and Particulars Under the Motor Accidents Act 1988' 'griffiths V. Kerkemeyer Claim' 'limitation Period and Leave to Commence Proceedings Out of Time' 'strike Out or Dismissal of Proceedings']
['torts' 'motor Accidents' 'civil Procedure'] ['negligence' 'pre Proceeding Co Operation and Particulars Under the Motor Accidents Act 1988' 'griffiths V. Kerkemeyer Claim' 'limitation Period and Leave to Commence Proceedings Out of Time' 'strike Out or Dismissal of Proceedings']

Case Brief

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Procedural Posture

Torts Negligence Motor Accident / Appeal to the New South Wales Court of Appeal From Rolfe Dcj's Dismissal of the Appellant's Notice of Motion in District Court Proceedings

Legal Issues

  1. 1 ["Whether the respondent's failure to give particulars of the Griffiths v. Kerkemeyer claim before commencing proceedings breached s.50A of the Motor Accidents Act 1988." 'Whether any breach of s.50A required dismissal of the whole proceedings or only exclusion of the unparticularised Griffiths v. Kerkemeyer claim.' 'Whether the respondent failed to comply with s.48 of the Motor Accidents Act 1988 in relation to the request for particulars of domestic services.' 'Whether the proceedings were barred by s.52(4) because they were commenced more than 3 years after the motor accident, and whether leave was necessary.' "Whether s.52(2)(b) applied because of the insurer's admission of breach of duty of care."]

Ratio Decidendi

The respondent breached s.50A by failing to give details of the significant Griffiths v. Kerkemeyer claim before commencing proceedings, but that breach did not require dismissal of the whole proceedings because the claim was severable and could be struck out. The appellant did not establish error in the primary judge's treatment of s.48. Although the primary judge should have dealt with the respondent's leave application, leave was unnecessary because s.52(4A) applied to the claim once the Griffiths v. Kerkemeyer component was struck out, and s.52(2)(b) did not apply to the insurer's admission of breach of duty of care.

Court Disposition

Appeal allowed in part; the Griffiths v. Kerkemeyer claim was struck out; the appellant's Notice of Motion was otherwise dismissed; the respondent's Notice of Motion was dismissed; each party was ordered to bear its own costs of the Notices of Motion and the appeal.

Orders

  • ['Appeal allowed in part.' "Order of Rolfe DCJ dismissing the appellant's Notice of Motion filed 10th May 2000 set aside." "Strike out so much of the respondent's Statement of Claim as relates to the Griffiths v. Kerkemeyer claim, otherwise dismiss the appellant's Notice of Motion." "Dismiss the respondent's Notice...