Maile v Rafiq [2005] NSWCA 410

New South Wales Court of Appeal

Maile v Rafiq [2005] NSWCA 410 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 28 October 2005

JUDGMENT DATE: 24 November 2005

JUDGMENT OF: Tobias JA at 1; Brownie AJA at 111

DECISION: (a) Grant leave to appeal upon condition that the claimant file a Notice of Appeal within 7 days of the date of these orders; (b) Appeal allowed; (c) Set aside the order made by Judge Sidis on 23 September 2004 dismissing the claimant's Notice of Motion filed on 5 August 2004; (d) Grant leave to the claimant to file amended Notice of Grounds of Defence in the form of the draft amended notice dated 19 August 2004; (e) The opponent to pay the claimant's costs of the summons for leave to appeal and of the appeal but to have a certificate under the Suitors' Fund Act 1951, if otherwise qualified

CATCHWORDS: PROCEDURE – Leave to amend defence – Motor accident – Where defendant's compulsory third party insurer admitted breach of duty – Where breach of duty admitted in defence – Where defendant unable to be interviewed until after defence filed – Leave sought to amend so as to deny liability and plead contributory negligence – Whether interests of justice required withdrawal of admission – Prejudice to plaintiff – Actual or presumptive – Whether adequate explanation for making of admission – Whether admission contrary to actual facts – Motor Accident's Compensation Act 1999 s 81

Motor Accidents Act 1988 LEGISLATION CITED: Motor Accidents Compensation Act 1999 Suitors' Fund Act 1951

Barker v Gifford [2005] ACTSC 55 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Celestino v Celestino (Federal Court of Australia, 16 August 1990, unreported) Clough and Rogers v Frog (1974) 48 ALJR 481 Cropper v Smith (1884) 26 ChD 700 CASES CITED: Drabsch v Switzerland General Insurance Co Ltd (16 October 1996, unreported) Hannaford v Cochrane (14 September 1995, unreported) Ness v Graffen (2003) 60 NSWLR 549 Reinicke v Neilson [2004] ACTSC 5 Wyer v Hunt [2005] ACTSC 15