Insurance Australia Ltd (ABN 11000016722) trading as NRMA Insurance v Checchia [2010] NSWCA 193

New South Wales Court of Appeal

CITATION: Insurance Australia Ltd (ABN 11000016722) trading as NRMA Insurance v Checchia [2010] NSWCA 193

HEARING DATE(S): On the Papers

JUDGMENT DATE: 9 August 2010

JUDGMENT OF: Macfarlan JA

DECISION: Direct that the appellant's submissions filed on 26 March 2010 (as supplemented by the amended attachment supplied on 31 May 2010) stand as the appellant's submissions on the appeal.

CATCHWORDS: PROCEDURE - civil - written submissions on appeal - whether compliant with Uniform Civil Procedure Rules r 51.36 - to comply with r 51.36(2), "statement in narrative form" to be separately identifiable

LEGISLATION CITED: Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

PARTIES: Insurance Australia Ltd (ABN 11000016722) t/as NRMA Insurance (Appellant) John Checchia (Respondent)

FILE NUMBER(S): CA 2009/298480

SOLICITORS: Moray & Agnew (Appellant) Young & Muggleton (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 15423/2007

LOWER COURT JUDICIAL OFFICER: Rothman J

LOWER COURT DATE OF DECISION: 29 September 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Checchia v Insurance Australia Ltd t/as NRMA Insurance [2009] NSWSC 1005

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/298480

MACFARLAN JA

9 AUGUST 2010 INSURANCE AUSTRALIA LTD (ABN 11000016722) T/AS NRMA INSURANCE v CHECCHIA Judgment 1 HIS HONOUR: This matter is listed for hearing on 13 October 2010 with an estimate of one day plus. The respondent has contended before the Registrar that the appellant's written submissions filed on 26 March 2010 do not comply with the requirements of Uniform Civil Procedure Rules r 51.36. The Registrar afforded to the parties the opportunity to make written submissions as to that contention, with a view to the issue being determined on the papers. Regrettably the written submissions that were lodged by the parties were placed in the Court file without being referred to a judge for determination. As a result delay has occurred in resolving the issue. 2 I have read the appellant's submissions on the appeal, which were filed on 26 March 2010, and have read the submissions lodged by the parties in connection with the issue as to compliance of those submissions with r 51.36. It would not be an efficient use of judicial time for me to deal with the detail of the latter submissions. It is sufficient for me to say that my view is that the submissions filed on 26 March 2010 did not comply with r 51.36, at least for the reason that the body of the written submissions exceeded 20 pages in length (r 51.36(1)(f)). The appellant contended that the written submissions incorporated the "statement in narrative form" referred to in r 51.36(2), which is permitted also to be 20 pages in length, and that it was therefore permissible for such submissions to be in the order of 40 pages in length. I do not agree. In my view r 51.36(2) contemplates that the statement will be identifiable as such, even though incorporated into the written submissions. I do not consider that fusion of the statement with the written submissions in such a way that the former loses its separate identity constitutes compliance with r 51.36(2) or extends the length of the written submissions that the appellant is permitted to file to 40 pages. 3 Nevertheless the submissions as filed appear to me to be in a form that will assist the Court on the hearing of the appeal, particularly when they are taken with the amendments that have been made to an attachment to those submissions. Leave to depart from the requirements of r 51.36 should have been sought by the appellant prior to, or at the time of filing of, its submissions in March 2010. Nevertheless, I consider that it is appropriate to direct that the appellant's submissions filed on 26 March 2010 (as supplemented by the amended attachment supplied on 31 May 2010) stand as the appellant's submissions on the appeal. I so direct. Any application for costs may be made to the Registrar or to the Court at the hearing of the appeal. **********