Eades v Gunestepe [2012] NSWCA 204

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Eades v Gunestepe [2012] NSWCA 204 Hearing dates: 29 May 2012 Decision date: 04 July 2012 Before: Basten JA; at [1] Hoeben JA; at [13] Tobias AJA; at [65] Decision: (1) Leave to appeal is granted. (2) The appeal is dismissed. (3) The applicant is to pay the respondent's costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: LIMITATION - motor accident - leave required to commence proceedings out of time under s 109 Motor Accidents Compensation Act 1999 - nature of appeal from lower court decision - whether decision pursuant to s 109 properly described as "discretionary" - monetary threshold requirement for extension of time - need to determine predictively range of contributory negligence - meaning of words "likely to be awarded" in s 109 - which party bears the onus of establishing a range for contributory negligence - whether "real chance" of contributory negligence being assessed at 24 percent or lower - whether monetary threshold under s 109 can include non-economic loss even though an assessment of permanent impairment has not been made by a Medical Assessor. Legislation Cited: Australian Road Rules, 1999, r 57 Motor Accidents Act, 1988, s43A Motor Accidents Compensation Act 1999 (NSW) s 109, s 131- Supreme Court Act 1970 (NSW). Cases Cited: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 Costa v The Public Trustee of NSW [2008] NSWCA 223 House v The King [1936] HCA 40; 55 CLR 499 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Reeves v Reeves [2002] NSWCA 181; 36 MVR 488 Rita Harika v Stanley Tupaea [2003] NSWCA 332; 58 NSWLR 675 Sinclair v Darwich [2010] NSWCA 195; 77 NSWLR 166 The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 at 421 The Queen v Carroll [2002] HCA 55; 213 CLR 635 Turkmani v Visvalingram & Ors [2009] NSWCA 211; 53 MVR 176 Warren v Coombes [1979] HCA 9; 142 CLR 531 Texts Cited: American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th ed. Category: Principal judgment Parties: Noel Samuel James Eades - Applicant Kadriye Gunestepe - Respondent Representation: Counsel: Mr RA Cavanagh SC/Mr A Bowen - Applicant Mr P Webb QC/Mr C Sandrasegra/Ms K Balendra - Respondent Solicitors: Lee & Lyons - Applicant Kheir Lawyers - Respondent File Number(s): 2010/398385 Decision under appeal Date of Decision: 2011-09-16 00:00:00 Before: Toner SC DCJ File Number(s): 2010/398385