Hooker v Gilling [2007] NSWCA 99

New South Wales Court of Appeal

CITATION: Hooker v Gilling [2007] NSWCA 99 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 April 2007

JUDGMENT DATE: 1 May 2007

JUDGMENT OF: Ipp JA at 1; McColl JA at 2; Basten JA at 72

DECISION: 1. Grant leave to appeal; 2. Notice of Appeal to be filed within fourteen days; 3. Appeal allowed; 4. Set aside the orders made by O'Toole DCJ on 26 May 2006 striking out paragraphs 6, 7, 8, 10 and 11 of the Amended Statement of Claim; 5. Grant the claimant leave to amend the Amended Statement of Claim to plead the progressive injury claim; 6. Each party to pay his and her own costs of the application for leave to appeal and the appeal and to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.

CATCHWORDS: MOTOR VEHICLES – Motor Accidents Compensation Act 1999 – section 3 – definition of "injury" – does not include a progressive injury claim. STATUTES – interpretation – amending Act purporting to clarify original Act may be taken into account in interpretation of original Act. PROCEDURE – Pleading – Statement of Claim – requirement to state case with sufficient clarity so defendant can understand case being put. PROCEDURE – application for leave to appeal – preparation of White Book – concurrent hearing – written submissions should be suitable for use on appeal

Civil Procedure Act 2005 Limitation Act 1969 Motor Accidents Act 1988 LEGISLATION CITED: Motor Accidents Compensation Act 1999 Motor Accidents Compensation Amendment Act 2006 Suitors' Fund Act 1951 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005