Agyeman-Badu v The Nominal Defendant - [2012] NSWDC 35

District Court

New South Wales

Medium Neutral Citation: Agyeman-Badu v The Nominal Defendant [2012] NSWDC 35
Hearing dates: 29 March 2012
Decision date: 13 April 2012
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Plaintiff's application for leave to commence proceedings pursuant to s 109 Motor Accidents Compensation Act 1999 (NSW) refused.
(2) Defendant's application for these proceedings to be dismissed for failure to provide a full and satisfactory explanation (ss 72 and 73 Motor Accidents Compensation Act 1999 (NSW)) granted.
(3) Plaintiff to pay defendant's costs.
(4) Liberty to apply in relation to costs.
(5) Exhibits retained for 28 days.

Catchwords: LIMITATION OF ACTIONS - Motor Accidents Compensation Act 1999, s 109 - plaintiff's application for leave to commence proceedings pursuant to s 109 - whether statement of claim was in fact filed in time - meaning of "issued" in s 109 - leave to commence required - defendant's claim of prejudice - whether a fair trial in all the circumstances was possible - held: application for leave dismissed - defendant's application to dismiss proceedings for failure to give a full and satisfactory explanation for delay - plaintiff unaware of the Nominal Defendant scheme - further delay by plaintiff for three months after consulting a lawyer due to uncertainty about accident site and failure of plaintiff to contact her lawyers - held: explanation neither full nor satisfactory for the three month period following the plaintiff's consultation of lawyers
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 70, 72, 73, 92(1)(a), 109
Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Commonwealth v Smith [2005] NSWCA 478
Diaz v Truong [2002] NSWCA 265
Ellis v Reko Pty Ltd [2010] NSWCA 319
Figliuzzi v Yonan [2005] NSWCA 290
GIO General Ltd v Smith [2011] NSWSC 802
Harris v Nominal Defendant [2009] NSWDC 372
Holt v Wynter (2000) 49 NSWLR 128
Laidlaw v Touma [2002] NSWCA 190
Mancini v Thompson [2002] NSWCA 38
Nominal Defendant v Harris (2011) 57 MVR 492
Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347
Smith v Grant (2006) 67 NSWLR 735
Russo v Aiello (2003) 215 CLR 643
Tan v Basaga [2010] NSWSC 1143
Walker v Howard (2009) 78 NSWLR 161
Texts Cited: -
Category: Procedural and other rulings
Parties: Plaintiff: Ama Amaniampong Agyeman-Badu
Defendant: The Nominal Defendant
Representation: Plaintiff: Mr R B Petrie
Defendant: Mr D Ronzani
Plaintiff: PK Simpsons & Co
Defendant: Moray & Agnew

File Number(s): 2011/251665
Publication restriction: None

Judgment

Introduction

The plaintiff and defendant bring notices of motion seeking the following relief:

(a) The plaintiff seeks (notice of motion filed on 2 March 2012) leave to commence proceedings pursuant to s 109 Motor Accidents Compensation Act 1999 (NSW) ("the Act").

(b) The defendant seeks (notice of motion filed on 25 August 2011) orders dismissing these proceedings.

It is convenient to deal with the plaintiff's notice of motion first, as the issues of fact and law are narrow.

The plaintiff's notice of motion

The statement of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWDC 35
Decision Date: 13 April 2012

CaseChat Overview and Summary

The case of Agyeman-Badu v The Nominal Defendant involved a plaintiff seeking leave to commence proceedings for damages under the Motor Accidents Compensation Act 1999. The plaintiff had initially missed the statutory deadline for filing a statement of claim, but sought leave to commence the proceedings under section 109 of the Act. The defendant opposed the application on the grounds of prejudice and questioned the adequacy of the plaintiff's explanation for the delay.

The court needed to determine whether the plaintiff's statement of claim was filed in a timely manner, which hinged on the interpretation of the term "issued" in section 109 of the Act. The court also had to weigh the defendant's claims of prejudice against the possibility of a fair trial, considering the full circumstances of the case. The plaintiff argued that the delay was due to unfamiliarity with the Nominal Defendant scheme and subsequent uncertainty about the accident site. However, the court found that the plaintiff's explanation was not full or satisfactory, particularly for the three months following legal consultation.

In its decision, the court dismissed the plaintiff's application for leave to commence proceedings, finding that the delay was not adequately justified. The court granted the defendant's application to dismiss the proceedings due to the lack of a full and satisfactory explanation for the delay. The plaintiff was ordered to pay the defendant's costs, with liberty reserved for the defendant to apply regarding costs, and exhibits were retained for 28 days. This outcome underscores the importance of timely filings and the requirement for a satisfactory explanation under the Motor Accidents Compensation Act 1999.

Orders

Orders of the court

(1) Plaintiff's application for leave to commence proceedings pursuant to s 109 Motor Accidents Compensation Act 1999 (NSW) refused.

(2) Defendant's application for these proceedings to be dismissed for failure to provide a full and satisfactory explanation (ss 72 and 73 Motor Accidents Compensation Act 1999 (NSW)) granted.

(3) Plaintiff to pay defendant's costs.

(4) Liberty to apply in relation to costs.

(5) Exhibits retained for 28 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Agyeman-Badu v The Nominal Defendant [2012] NSWDC 35
Hearing dates:	29 March 2012
Decision date:	13 April 2012
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff's application for leave to commence proceedings pursuant to s 109 Motor Accidents Compensation Act 1999 (NSW) refused. (2) Defendant's application for these proceedings to be dismissed for failure to provide a full and satisfactory explanation (ss 72 and 73 Motor Accidents Compensation Act 1999 (NSW)) granted. (3) Plaintiff to pay defendant's costs. (4) Liberty to apply in relation to costs. (5) Exhibits retained for 28 days.
Catchwords:	LIMITATION OF ACTIONS - Motor Accidents Compensation Act 1999, s 109 - plaintiff's application for leave to commence proceedings pursuant to s 109 - whether statement of claim was in fact filed in time - meaning of "issued" in s 109 - leave to commence required - defendant's claim of prejudice - whether a fair trial in all the circumstances was possible - held: application for leave dismissed - defendant's application to dismiss proceedings for failure to give a full and satisfactory explanation for delay - plaintiff unaware of the Nominal Defendant scheme - further delay by plaintiff for three months after consulting a lawyer due to uncertainty about accident site and failure of plaintiff to contact her lawyers - held: explanation neither full nor satisfactory for the three month period following the plaintiff's consultation of lawyers
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 70, 72, 73, 92(1)(a), 109
Cases Cited:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Commonwealth v Smith [2005] NSWCA 478 Diaz v Truong [2002] NSWCA 265 Ellis v Reko Pty Ltd [2010] NSWCA 319 Figliuzzi v Yonan [2005] NSWCA 290 GIO General Ltd v Smith [2011] NSWSC 802 Harris v Nominal Defendant [2009] NSWDC 372 Holt v Wynter (2000) 49 NSWLR 128 Laidlaw v Touma [2002] NSWCA 190 Mancini v Thompson [2002] NSWCA 38 Nominal Defendant v Harris (2011) 57 MVR 492 Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 Smith v Grant (2006) 67 NSWLR 735 Russo v Aiello (2003) 215 CLR 643 Tan v Basaga [2010] NSWSC 1143 Walker v Howard (2009) 78 NSWLR 161
Texts Cited:	-
Category:	Procedural and other rulings
Parties:	Plaintiff: Ama Amaniampong Agyeman-Badu Defendant: The Nominal Defendant
Representation:	Plaintiff: Mr R B Petrie Defendant: Mr D Ronzani Plaintiff: PK Simpsons & Co Defendant: Moray & Agnew
File Number(s):	2011/251665
Publication restriction:	None