Brierley v Ellis [2014] NSWCA 230

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Brierley v Ellis [2014] NSWCA 230 Hearing dates: 25 February 2014 Decision date: 17 July 2014 Before: Basten JA at [1]; Meagher JA at [2]; Gleeson JA at [60] Decision: (1) Grant leave to appeal. (2) Appeal allowed. (3) Set aside orders of the District Court made on 22 March 2013. (4) In place thereof, (a) dismiss the defendant's motion of 27 September 2012 seeking to dismiss the proceedings pursuant to s 73(7) of the Motor Accidents Compensation Act 1999 (NSW); (b) order the defendant to pay the plaintiff's costs of the defendant's motion. (5) Order the respondent to pay the applicant/appellant's costs of the application for leave to appeal and 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: MOTOR ACCIDENT COMPENSATION - whether primary judge erred in not being satisfied that plaintiff/appellant had provided a "full and satisfactory explanation" within s 66(2) of Motor Accidents Compensation Act 1999 (NSW) for delay in making a motor accident claim - explanation for delay given by hearsay evidence which was not objected to - principles relevant to admissibility of and weight to be given to that evidence Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 3, 33, 72, 73 Cases Cited: Buller v Black [2003] NSWCA 45; 56 NSWLR 425 Clyne v Law Society of New South Wales (Court of Appeal (NSW), 4 September 1987, unrep) Diaz v Truong [2002] NSWCA 265; 37 MVR 158 Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1979] HCA 2; 143 CLR 134 Lyu v Jeon [2012] NSWCA 446 Metropolitan Railway Co v Jackson (1877) 3 App Cas 193 Russo v Aiello [2003] HCA 53; 215 CLR 643 Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 Category: Principal judgment Parties: Patrick Brierley (Applicant/Appellant) Isaac Ellis (Respondent) Representation: Counsel: B Dooley SC (Applicant/Appellant) K P Rewell SC (Respondent) Solicitors: Carroll & O'Dea (Applicant/Appellant) Hunt & Hunt (Respondent) File Number(s): 2013/119818 Decision under appeal Jurisdiction: 9101 Citation: Brierley v Ellis (District Court of New South Wales, Gibb DCJ, 22 March 2013, unrep) Date of Decision: 2013-03-22 00:00:00 Before: Gibb DCJ File Number(s): 2012/129042