BUTTON v GAJDACS [1996] NSWCA 84

BUTTON v GAJDACS

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 3 June 1996

[1996] NSWCA 84

Sheller JA. The claimants, who were unsuccessful defendants in the proceedings below, apply by notice of motion for an order extending time within which they may institute an appeal from a decision of Graham DCJ on 23 March, 1996.

This application is supported by an affidavit from Stephen Joseph Lee, who is a solicitor employed by the solicitors for the claimants. He deposes to the fact that after Graham DCJ gave his decision the compulsory third party insurer, MMI General Insurance Limited, sought advice as to the prospects of pursuing an appeal. Advice was received and instructions were then received by the solicitors that no appeal proceedings be initiated.

It appears from the affidavit of Les Feher, the opponent's solicitor, that correspondence took place between the solicitors for each side indicating that that decision had been taken not to proceed with the appeal. However, apparently after some further consideration the third party insurer changed its mind and, on 1 May, 1996, gave the solicitors instructions to institute an appeal. Those instructions gave rise to this application, which I note was delayed for a further fortnight or more.

This is the explanation the claimants give for not filing a notice of appeal within time. Mr Feher's affidavit has attached to it a report from a consultant psychiatrist, Dr Peter Morse. I have read this report except for the penultimate paragraph, which was objected to and not read. From this it appears that the opponent's condition when seen by Dr Morse on 31 May was one of agitation and depression. She apparently showed a marked tremor and had difficulty breathing to the point of hyperventilation.

Dr Morse described the problems that the opponent has suffered since the motor vehicle accident, which is the subject of these proceedings, and referred particularly to the distress she has suffered since finding out that the insurance company, having indicated that it did not propose to appeal, has later changed its mind.