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. Although the matter is not entirely satisfactory, the paragraph of the opponent's affidavit which was read before McLachlan DCJ certainly gives a basis upon which, together with the opponent's relationship with the driver, his Honour could conclude that full and satisfactory explanation had been given within s 42(2) and of the Act. The opponent was a migrant from Greece. Her education was limited to primary school. She said that she was not at first aware of the obligation to report the accident to the police. As soon as she became aware, she did take steps to report the accident. It would seem that McLachlan DCJ was at least convinced 2 UNREPORTED JUDGMENTS that the evidence on that point should be accepted. On that footing, his Honour's conclusion was sustainable. Being sustainable, there is no reason why this Court should now interfere in it. There is no issue of general principle in the case that is not adequately dealt with in the earlier decision of the Court, see eg. Sutherland (1991) 14 MVR 137 (CA). Accordingly I would propose that the summons be dismissed. The opponent must pay the claimant's costs. Priestley JA. I agree. Sheller JA. I agree. Kirby P. Such are the orders of the Court. Summons dismissed with costs. Counsel for the appellant: D Russell Solicitors for the appellant: Abbott Tout Counsel for the respondent: G M Elliot Solicitors for the respondent: Tsmenounos and Assoc