PANAGIOTAKIS v PANAGIOTAKIS [1995] NSWCA 355

PANAGIOTAKIS v PANAGIOTAKIS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P, PRIESTLEY JA and SHELLER JA 8 May 1995 [1995] NSWCA 355

MOTOR VEHICLES — Precondition to Proceedings — notification to police failure of allegedly injured passenger to report in accordance with Motor Accidents Act 1988, s.42-whether satisfactory explanation given- whether "sufficient case" shown to permit the case to proceed-primary judge (McLachlan DCJ) expresses doubts as to the credit of the injured passenger-provides extension but disqualifies self from hearing trial-whether action inconsistent warranting leave to appeal-held: It is not. Leave refused.

WORDS AND PHRASES: "sufficient cause". Motor Accidents Act 1988, ss42(1),42(2),42(5)

Kirby P. The Court does not consider that this is a matter appropriate for the grant of leave.

The statement of McLachlan DCJ's reasons is not entirely clear. His Honour does appear to have entertained, and expressed, real doubts about the credit of the opponent. He disqualified himself from hearing the trial. The claimant says that this action is inconsistent with the relief which his Honour nevertheless gave the opponent. It does appear that his Honour felt that he was able to determine the question of the credibility of the opponent favourably to her, at least for the purposes of considering whether or not he had been convinced that a full and satisfactory explanation had been given to the court for non-compliance with s 42(1) of the Motor Accidents Act 1988 or that 'sufficient cause' had been shown within s 42(5) of that Act.

The difficulty which has been occasioned in this application is presented bythe action of his Honour in then standing over the resolution of general issues of credit to the judge of trial. However, as the order was interlocutory only and simply removed the impediment which would otherwise have existed under s 42 of the Act against prosecution of the claim, it would still be open to the judge of trial to reach a different view on the happening of the accident and on the credit of the opponent than apparently McLachlan DCJ thought he could for purposes of the limited application which was before him.