NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v WILLIAMS [1996] NSWCA 396

NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v WILLIAMS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 5 July 1996, 5 July 1996 [1996] NSWCA 396

APPLICATION FOR LEAVE TO FILE STATEMENT OF CLAIM — FAILURE OF JUDGE TO EXERCISE DISCRETION — ERRONEOUS REASONS FOR DECISION

Clarke JA This appeal is brought from a decision of his Honour Justice Dunford given on 15 December 1994 in which his Honour extended the time for filing a statement of claim to 1 February 1995.

The facts are complex, mainly because of the extraordinary history of the development of the Motor Accidents Act and its predecessor in New South Wales. It is sufficient for present purposes to observe that it was necessary for the respondent to seek the leave of the Court to commence proceedings pursuant to s52(4) of the Motor Accidents Act 1988.

His application was heard initially by Master Malpass. In a careful reserved judgment, the learned Master ordered that the summons be dismissed, having refused the application for leave. He made a consequential costs order.

The respondent then appealed to the Common Law Division and his appeal was heard by Justice Dunford. The matter first came before his Honour on 16 September 1994 when his Honour adjourned the case to 2 December because, broadly, of the unsatisfactory nature of the material upon which he was asked to consider the appeal.

His Honour then heard the appeal on 2 December 1994 and at the end of the hearing dismissed it and confirmed the Master's decision. His Honour took the view that there was no proper basis upon which the appeal could be allowed.

It would seem that his Honour had second thoughts about the matter, for he had it listed before him again on 15 December 1994 and on that occasion it was said:

"T remained unhappy as I was concerned that the plaintiff's case had not been fully presented and I accordingly listed the matter again for today. The same situation prevails. There has been no proper argument on any occasion on behalf of the plaintiff as to whether the defendant that is left in the proceedings can be sued by the plaintiff in respect of this accident."