Huckel v Norris [2001] NSWCA 301

New South Wales Court of Appeal

CITATION : Huckel v Norris [2001] NSWCA 301 FILE NUMBER(S) : CA 40541/00 HEARING DATE(S) : 30 August 2001 JUDGMENT DATE : 11 September 2001

PARTIES : Jaycen Graeme Huckel - Appellant Karla Maree Norris - Respondent JUDGMENT OF : Priestley JA at 1; Meagher JA at 2; Stein JA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT DC 50/00 FILE NUMBER(S) : LOWER COURT Tupman DCJ JUDICIAL OFFICER :

COUNSEL : J D Hislop QC - Appellant M G Gilbert - Respondent SOLICITORS : Thomas Laycock, Newcastle - Appellant Stacks - The Law Firm, Port Macquarie - Respondent CATCHWORDS : PROCEDURE - limitation period expired - leave to commence proceedings - s 52(4) Motor Accidents Act 1988 - whether prejudice would deprive defendant of fair trial - whether full and satisfactory explanation for delay - ND LEGISLATION CITED : Motor Accidents Act 1988 CASES CITED: Holt v Wynter (2000) 49 NSWLR 128 House v The King (1936) 55 CLR 499 DECISION : 1) Appeal allowed with costs. 2) Respondent to receive a certificate under the Suitor's Fund Act, if otherwise entitled. 3) set aside orders of Tupman DCJ made on 24 June 2000 and, in lieu thereof, order that the respondent's Notice of Motion before the District Court be dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40541/00 DC 50/00 PRIESTLEY JA MEAGHER JA STEIN JA

Tuesday, 11 September 2001 Jaycen Graeme HUCKEL v Karla Maree NORRIS

The appellant was the driver of a motor bike involved in an accident on 7 October 1992, where the respondent, a pillion passenger, was thrown from the bike and landed on her back. Although she attended Dubbo Hospital following the accident, the respondent did not seek any medical treatment for her back condition until mid 1999. The Motor Accidents Act required that a notice of claim be served on the appellant's third party insurer by 6 April 1993, however this did not occur until 24 September 1999. The limitation period to commence proceedings had expired on 7 April 1996. On 12 April 2000, the appellant filed a Notice of Motion in the District Court seeking leave to commence proceedings. This motion was upheld and leave granted on 27 June 2000. The appellant appeals against this grant of leave. Held: Per Stein JA, Meagher JA agreeing: (Priestley JA dissenting) 1 The applicable test on prejudice to a potential defendant arising out of delay is that stated by the majority in Holt v Wynter (2000) 49 NSWLR 128. 2 The prejudice occasioned to the appellant on the issue of quantum must have been significant. It is not possible to see how the appellant could possibly have a fair trial in the circumstances. The judge's finding that the prejudice was not such as to prevent a fair trial cannot stand, as it involved a miscarriage of her discretion and an error in principle. 3 It is unnecessary to consider the issue of a full and satisfactory explanation for the delay in commencing proceedings as the appeal is determined on the prejudice issue. Per Priestley JA dissenting: 1 It was open to Tupman DCJ to grant leave to the respondent to commence proceedings on the basis of the view she expressed about the facts of the case. 2 Her Honour did not make any error falling into the categories set down in House v King (1936) 55 CLR 499 as permitting appellate interference. Orders: 1 Appeal allowed with costs. 2 Respondent to receive a certificate under the Suitor's Fund Act, if otherwise entitled. 3 Set aside orders of Tupman DCJ made on 24 June 2000 and, in lieu thereof, order that the respondent's Notice of Motion before the District Court dismissed with costs.