Aeiveri v Boland

[2012] NSWDC 141

District Court

New South Wales

Case Title:

Aeiveri v Boland

Medium Neutral Citation:

[2012] NSWDC 141

Hearing Date(s):

07/09/2012

Decision Date:

10 September 2012

Jurisdiction:

Civil

Before:

Levy SC DCJ

Decision:

1.Pursuant to s 109 of the Motor Accidents Compensation Act 1999, leave is granted to the plaintiff to commence proceedings to claim damages for personal injury arising from his involvement in a motor vehicle accident on 22 November 2007;

2.The plaintiff is to pay his own costs incurred in the filing of this summons up to 5 June 2012;

3.The defendant is to pay the plaintiff's costs of the summons after 5 June 2012, on the ordinary basis;

4.The exhibits may be returned.

[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 OF ACTIONS - motor vehicle accident claim - application by plaintiff for leave to file out of time proceedings pursuant to s 109 of the Motor Accidents Compensation Act 1999 - whether explanation for delay is full and satisfactory

Legislation Cited:

Motor Accidents Compensation Act 1999, s 109, s 131, s 134

Cases Cited:

Figliuzzi v Yonan [2005] NSWCA 290
Tan v Basaga [2010] NSWSC 1143

Texts Cited:

Category:

Principal judgment

Parties:

Asker Aeiveri (Plaintiff)
Hope Boland (Defendant)

Representation

- Counsel:

Mr J de Greenlaw (Plaintiff)
Mr N Ghabar (Defendant)

- Solicitors:

Adams & Co Lawyers (Plaintiff)
McCourts (Defendant)

File number(s):

2012/177322

Publication Restriction:

None

JUDGMENT

Table of Contents

Summons	[1]
Evidence	[2]
Facts	[3] - [12]
Legislation	[13]
Submissions and Issues	[14] - [17]
Consideration of Issue 1 - Satisfactory explanation	[18] - [25]
Consideration of Issue 2 - Likely quantum	[26] - [32]
Disposition	[33]
Costs	[34] - [36]
Orders	[37]

Summons

1. In this summons filed on 5 June 2012, the plaintiff seeks the leave of the court, pursuant to s 109 of the Motor Accidents Compensation Act 1999, to commence proceedings out of time, claiming damages for personal injuries he sustained in a motor vehicle accident that occurred on 22 November 2007.

Evidence

1. The evidence in support of the application was in the form of an affidavit from the plaintiff sworn on 7 July 2012, and three affidavits from his solicitor, respectively sworn on 5 June 2012, 19 June 2012 and 5 September 2012. In addition, the plaintiff was cross-examined on his affidavits.

Facts

1. The plaintiff is aged 40 years. His first language is Kurdish. His second language is Persian. He emigrated from Iran in 1992 and eventually settled in Australia in 1994. He said he was not completely conversant in English and has to translate his thoughts back through his original languages when answering complex questions. He gave his evidence without the…