Turner, Wayne Anthony v Nominal Defendant [1981] FCA 57

Turner, Wayne Anthony v Nominal Defendant [1981] FCA 57

The trial judge's finding that the applicant deliberately refrained from action was not supported by evidence and constituted an error. The applicant, being a minor and unaware of the seriousness of his injuries or the requirement to notify the Nominal Defendant, acted promptly once aware of the seriousness. No prejudice to the respondent was established that would outweigh the reasons for granting the extension. Sufficient cause for extension of time was established on the uncontradicted evidence.

Parties
Appellant: Wayne Anthony Turner; Respondent: The Nominal Defendant
Jurisdiction
Australia
Judgment Date
22 May 1981
Procedural Posture
Appeal / Appeal From Dismissal of Application for Extension of Time for Service of Notice of Claim
Outcome
Appeal upheld
Legal Topics
Extension of Time, Notice of Claim, Discretion of Trial Judge, Unidentified Motor Vehicle, Prejudice to Respondent
Motor Vehicle Law Personal Injury Civil Procedure Extension of Time Notice of Claim Discretion of Trial Judge Unidentified Motor Vehicle Prejudice to Respondent

Case Brief

Summary, issues, holding and outcome

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Parties

Wayne Anthony Turner

Appellant

The Nominal Defendant

Respondent

Procedural Posture

Appeal / Appeal From Dismissal of Application for Extension of Time for Service of Notice of Claim

Legal Issues

  1. 1 Whether the trial judge erred in dismissing the application to extend time for service of notice of claim upon the Nominal Defendant under s.85 of the Motor Traffic Ordinance 1936-1977 (A.C.T.)
  2. 2 Whether sufficient cause was established for the grant of the extension

Ratio Decidendi

The trial judge's finding that the applicant deliberately refrained from action was not supported by evidence and constituted an error. The applicant, being a minor and unaware of the seriousness of his injuries or the requirement to notify the Nominal Defendant, acted promptly once aware of the seriousness. No prejudice to the respondent was established that would outweigh the reasons for granting the extension. Sufficient cause for extension of time was established on the uncontradicted evidence.

Court Disposition

Appeal upheld

Orders

  • The appeal be upheld.
  • The time for the appellant to give notice of intention to make a claim against the Nominal Defendant in respect of the accident on 25 September 1978 is extended to 14 days from the date of order.