Hickey's Transport Pty Limited v Ken Gordon [2008] NSWCA 167

New South Wales Court of Appeal

CITATION: Hickey's Transport Pty Limited v Ken Gordon [2008] NSWCA 167

HEARING DATE(S): 15 July 2008

JUDGMENT DATE: 8 August 2008

JUDGMENT OF: Ipp JA at 1; McColl JA at 94

DECISION: 1. The application for leave to appeal is granted .2. The appeal is upheld. 3. The orders made by Hungerford ADCJ are set aside. 4. Mr Gordon's application to reinstate his claim is dismissed. 5. Mr Gordon to pay the costs of the application for leave to appeal and the appeal and the costs of the hearing before Hungerford ADCJ. 6. Mr Gordon is granted a certificate under the Suitor's Fund Act 1951, if otherwise qualified.

CATCHWORDS: MOTOR ACCIDENTS COMPENSATION - dismissal then reinstatement of claim under Motor Accidents Compensation Act 1999 section 110 - whether "full and satisfactory explanation" for delay - relevant factors - mistake by solicitors. - PRACTICE AND PROCEDURE - appeal - review of findings of fact by trial judge sitting alone - findings based on credibility of witnesses.

Legal Profession Act 2004 LEGISLATION CITED: Motor Accidents Compensation Act 1999 Uniform Civil Procedure Rules 2005 Suitor's Fund Act 1951

CATEGORY: Principal judgment

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Great Australian Gold Mining Company v Martin [1877] 5 Ch D 1 CASES CITED: McNamara v Fitzgibbon [2005] NSWCA 274 Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735 State Rail Authority of NSW v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588

PARTIES: Hickey's Transport Pty Limited - Claimant/Appellant Ken Gordon - Opponent/Respondent