THE NOMINAL DEFENDANT v GABRIEL & ANOR [2007] NSWCA 52

Reported Decision: 71 NSWLR 150

New South Wales Court of Appeal

CITATION: THE NOMINAL DEFENDANT v GABRIEL & ANOR [2007] NSWCA 52

HEARING DATE(S): 1 February 2007

JUDGMENT DATE: 23 March 2007

JUDGMENT OF: Hodgson JA at 1; Basten JA at 16; Campbell JA at 43

DECISION: By majority; (1) Leave to appeal granted, and appeal allowed.; (2) Set aside the orders made by his Honour Judge Naughton QC on 13 March 2006.; (3) Notice of Motion filed by the plaintiff on 30 November 2005 dismissed.; (4) Respondent to pay costs of the appellant of the appeal and of the hearing in the court below.; (5) Respondent to have a certificate under the Suitors Fund Act 1951.

CATCHWORDS: TORTS – NEGLIGENCE – Road Accident cases – admission of liability made by insurer out of court pursuant to section 81 Motor Accidents Compensation Act 1999 – exemption granted enabling claim to be pursued in court – insurer files defence denying liability – whether that defence liable to be struck out by reason of the earlier section 81 admission - PROCEDURE – striking out defence – motor accident claim – admission of liability under section 81 Motor Accidents Compensation Act 1999 – defence in court proceedings denies liability – whether defence liable to be struck out - EVIDENCE – confessions and admissions – whether admission able to be "withdrawn" - TRAFFIC LAW – Transport accident legislation – liability – admission by insurer – withdrawal – Motor Accidents Compensation Act 1999, section 81

Civil Procedure Act 2005 Evidence Act 1995 Freedom of Information Act 1989 Motor Accidents Act 1988 LEGISLATION CITED: Motor Accidents Compensation Act 1999 Suitors Fund Act 1951 Supreme Court Act 1970 Transport Accidents Compensation Act 1987 Uniform Civil Procedure Rules 2005