Daly v Thiering [2013] NSWCA 25

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Daly v Thiering [2013] NSWCA 25 Hearing dates: 30 January 2013 Decision date: 20 February 2013 Before: McColl JA at [1] Macfarlan JA at [2] Hoeben JA at [3] Decision: Leave to appeal is granted. The appeal is dismissed. The applicant to pay the first and second respondents' costs of the appeal. [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: STATUTORY INTERPRETATION - interpretation of statute determined as a separate question - Motor Accidents (Lifetime Care and Support) Act 2006 and Motor Accidents Compensation Act 1999 - whether participant in Lifetime Care and Support Scheme entitled to damages pursuant to s 128 Motor Accidents Compensation Act 1999 - whether Lifetime Care and Support Authority or motor vehicle tortfeasor/CTP insurer liable to pay for attendant care services provided gratuitously pursuant to s 128 Motor Accidents Compensation Act 1999 - motor vehicle tortfeasor/CTP insurer remains liable to make such payments in certain circumstances - liability of Lifetime Care and Support Authority to make payments to person providing gratuitous attendant care to participant in scheme - possible limitations on such an obligation - question of fact as to whether Lifetime Care and Support Authority has such an obligation. Legislation Cited: Motor Accidents Compensation Act 1999 Motor Accidents (Lifetime Care and Support) Act 2006 Motor Accidents Lifetime Care and Support Schemes Legislation Amendment Act 2012 Cases Cited: Griffiths v Kerkemeyer [1997] HCA 45; 139 CLR 161 Thiering & v Daly & [2011] NSWSC 1345 Thiering v Daly (No 2) [2011] NSWSC 1585 Texts Cited: Mason & Carter's Restitution Law in Australia, 2nd ed, LexisNexis Butterworths: Sydney (2008), p 824 Category: Principal judgment Parties: John Daly - Applicant Alexander Thiering - First Respondent Rose Matilda Thiering - Second Respondent Lifetime Care and Support Authority of NSW - Third Respondent Representation: Counsel: Mr KP Rewell SC/Mr DM Wilson/Ms J Gumbert - Applicant Mr EG Romaniuk/Ms EE Grotte - First and Second Respondents Submitting Appearance - Third Respondent Solicitors: Moray & Agnew - Applicant Slater & Gordon - First and Second Respondents WorkCover Legal Group - Submitting Appearance - Third Respondent File Number(s): 2012/68384 Decision under appeal Citation: Thiering v Daly & [2011] NSWSC 1345 Thiering v Daly (No 2) [2011] NSWSC 1585 Before: Garling J File Number(s): 2010/22260