Russo v Aiello [2003] HCA 53

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY AND HAYNE JJ

LIDO RUSSO & ANOR APPELLANTS

AND

JOHN DOMINIC AIELLO RESPONDENT

Russo v Aiello

[2003] HCA 53

30 September 2003

S292/2002

ORDER

1. Appeal dismissed with costs. 2. Order 1 suspended for 28 days from the date of this Order and for such further time as a Justice of this Court may order before the expiry of that 28 day period and on an application made within 14 days of this Order. 3. Liberty to apply to file, on an application made in accordance with Order 2, written submissions as to whether any other order should be made by this Court respecting the position of the second appellant.

On appeal from the Supreme Court of New South Wales

Representation:

G B Hall QC with A R Lakeman for the appellants (instructed by Turner Whelan)

D J Russell SC with G F Butler for the respondent (instructed by Mr Bhim Ramrakha)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Russo v Aiello

Limitation of actions – Action in respect of motor vehicle accident where claimant lodged claim outside statutory time limit – Whether claimant had a full and satisfactory explanation for delay in making claim – Whether material difference between having and providing an explanation – Whether reasonable person in position of claimant would have been justified in experiencing the same delay – Onus of establishing full and satisfactory explanation – Relevance of prejudice to defendant caused by stay – Motor Accidents Act 1988 (NSW), ss 40(2), 43(2), 43A(2), 43A(6), 43A(7).

Appeal – Where primary judge of District Court erred in law and fact in making discretionary judgment – Whether errors vitiated decision of primary judge – Whether Court of Appeal erred in its disposition of appeal – Whether relief futile.