HARRIS v LEANEY [1991] NSWCA 145

HARRIS v LEANEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and HANDLEY JJA 26 June 1991, 3 July 1991 [1991] NSWCA 145

INFERIOR COURTS — District Court — certiorari — natural justice — procedural fairness — suggested reasonable apprehension of bias in a fair-minded observer — motion for dismissal of damages proceedings in a motor accident case for want of provision of reasonable particulars to the insurer in a motor accident case — trial judge (Madgwick DCJ) finds plaintiff failed without reasonable excuse to comply with s48 Motor Accidents Act 1988 requiring compliance with a reasonable request for particulars by insurer — judge strikes out proceedings and reinstates them and orders insurer to pay costs — on summons for judicial review — held: (1) (per (Kirby P) There was power in the District Court Act and Rules for the judge to make the orders striking out and reinstating the proceedings and as to costs which he made; (2) (by the Court) But in doing so, the judge had failed to accord procedural fairness to the claimant in the conduct of the proceedings and in making orders without first giving the claimant the opportunity to be heard. Escobar v Spindelori (1986) 7 NSWLR 51, 57 applied; (3) (by the Court) It was therefore necessary to provide relief and unnecessary to determine the complaint of reasonable apprehension of bias. Vakauta v Kelly (1989) 167 CLR 568; Galea v Galea (1990) 19 NSWLR 263, 281 refd to; (4) Order for certiorari issued and orders of District Court quashed.

MOTOR VEHICLES — motor accident — Motor Accidents Act 1988 as amended in 1989 and 1990 — duty of claimant to cooperate with insurer — duty to provide reasonable particulars on request — consequence of non-compliance whether reasonable excuse — purpose of provisions — criticism of provisions by trial judge — motion for dismissal of proceedings in District Court — judge strikes out proceedings but reinstates same — challenge by judicial review — held: (1) (per Kirby P) The judge had the power to make the orders he did; (2) (by the Court) However, in the circumstances he failed to accord procedural fairness and the orders must be quashed. JUDGES — duty to accord procedural fairness — reasonable apprehension of bias — robust expression of views about legislation — whether orders disposing of proceedings as to costs affected — whether interventions excessive. Galea v Galea (1990) 19 NSWLR 263, 281 — whether waiver of complaint. Wentworth v Rogers (No 12) (1987) 9 NSWLR 400, 422 consd. WORDS and PHRASES — "without reasonable excuse". District Court Act 1973, s148B(1). Motor Accidents Act 1988, s43 and s48. Motor Accidents (Amendment) Act 1990, s3, Sch1, CL17, CL18. District Court Rules, Pt1 r5A; Pt16 r6(1); Pt26 r5B.