Russo v Aiello [2001] NSWCA 306

New South Wales Court of Appeal

CITATION : Russo v Aiello [2001] NSWCA 306 FILE NUMBER(S) : CA 40696/00 HEARING DATE(S) : 20/06/01 JUDGMENT DATE : 13 September 2001

Lido Russo (1App) PARTIES : Zucchini Pty Ltd (2App) John Domonic Aiello (R) JUDGMENT OF : Meagher JA at 1; Hodgson JA at 2; Young CJ in Eq at 24

LOWER COURT JURISDICTION : District Court LOWER COURT DC53/00 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER :

COUNSEL : A Lakeman (A) J D Hislop QC/D J Russell (R) SOLICITORS : Turner Whelan (A) GIO Australia, CTP Claims (R) CATCHWORDS : Motor vehicle- Accident causing personal injury- Claim made out of time- Whether District Court Judge could be satisfied that there was no full and satisfactory explanation for the delay. Words & Phrases- "Reject". (D) LEGISLATION CITED : Motor Accidents Act 1988, ss 40(2), 43A(7) Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 CASES CITED: Browne v Dunn (1894) 6 R 67 Kanj v Kassem (Sinclair DCJ 31.3.2000) Reg v Lichfield (Mayor) (1841) 1 QB 453; 113 ER 1206 DECISION : By majority: (1) Leave to appeal granted. (2) Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40696 of 2000 DC 53 of 2000

MEAGHER JA HODGSON JA YOUNG CJ in Eq

Thursday 13 September 2001

RUSSO v AIELLO

The plaintiff was injured in a motor vehicle on 11 January 1997. He saw a solicitor that month who alerted him to the need to complete a claim form. The plaintiff decided that his disabilities would improve and went overseas. He obtained more legal advice in 1998. He submitted a claim form in March 1999. The insurer did not accept the plaintiff's reasons as constituting sufficient grounds to waive the delay. The plaintiff filed his claim in the District Court on 6 January 2000. The defendant successfully moved to dismiss the claim as a late claim. Under section 43A(7) of the Motor Vehicles Act 1988 the Court must dismiss the claim if satisfied that the claimant does not have a full and satisfactory explanation for the delay. The Judge also rejected the plaintiff's contention that, on the facts, the insurer had not rejected his reasons for delay. HELD: On appeal (Hodgson JA dissenting): The Court held that although the District Court had directed its mind to the explanation given to the insurer, and not, as it ought, to the explanation to the Court, in the present case the conclusion reached below was inevitable. Per Hodgson JA: The decision below was so affected by serious error that the plaintiff was denied procedural justice, the appeal should be allowed and the proceedings returned to the District Court. [NOTE - For simplicity the above summary intentionally omits the fact that there were two plaintiffs, an individual and a company controlled by him which was suing per quod servitium amisit] ORDERS (1) Leave to appeal granted; (2) Appeal dismissed with costs.