Al-Ebadi v Guo - [2017] NSWDC 107

District Court

New South Wales

Medium Neutral Citation: Al-Ebadi v Guo [2017] NSWDC 107
Hearing dates: 9, 10 and 13 March 2017
Date of orders: 14 March 2017
Decision date: 14 March 2017
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1) Leave granted to the plaintiff to commence proceedings out of time under s 109(1) of the Motor Accidents Compensation Act 1999.
(2)   Defendant’s notice of motion dismissed.
(3)   Plaintiff’s solicitor to pay the costs of the preparation and first day of the hearing of the application, otherwise costs of the application to be costs in the proceedings.
(4)   Stand over the matter for directions on Thursday, 16 March 2017 at 10am before the Judicial Registrar.
(5)   Exhibits returned forthwith (and returned in court).

Catchwords: MOTOR ACCIDENT – leave to commence proceedings outside limitation period – one month delay – diary error by solicitors – full and satisfactory explanation – earlier motor vehicle accident – “damages likely to be awarded” – “if the claim succeeds”
Legislation Cited: Motor Accidents Compensation Act 1999, s 3, s 66, s 83, s 109
Cases Cited: Dijakovic v Perez [2015] NSWCA 174
Eades v Gunestepe [2012] NSWCA 204
Holt v Wynter (2000) 49 NSWLR 128
Reeves v Reeves [2002] NSWCA 181
Sinclair v Darwich [2010] NSWCA 195
Category: Procedural and other rulings
Parties: Majid Al-Ebadi (plaintiff)
Bin Guo (defendant)
Representation:
Counsel:
Mr D Hanna (plaintiff)
Mr W Fitzsimmons (defendant)
Solicitors:
Danawe Lawyers (plaintiff)
McInnes Wilson Lawyers (defendant)

File Number(s): 2016/183046
Publication restriction: None

Judgment

A. GENERALLY

Majid Al-Ebadi was involved in a motor vehicle accident on 22 December 2012. Due to an oversight by his solicitor, proceedings were commenced 30 days after the limitation period had expired. Mr Al-Ebadi seeks a grant of leave under s 109 of the Motor Accidents Compensation Act 1999 (“MACA”) to enable him to commence proceedings out of time, whereas the insurer seeks dismissal of the proceedings. The insurer previously admitted a breach of duty.
Mr Al-Ebadi was also involved in an earlier motor vehicle accident on 15 June 2011, which also resulted in proceedings (“the first proceedings”) by Mr Al-Ebadi for damages. Mr Al-Ebadi received compensation in a settlement of those proceedings in April 2013.

B. THE ISSUES

Mr Al-Ebadi is not entitled to commence proceedings without leave of the Court. Section 109(3) provides:

“(3) The leave of the court must not be granted unless:
(a) the claimant provides a full and satisfactory explanation to the court for the delay, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident.”

The insurer disputes the fulfilment of the requirements of both these subsections. Thus, the issues can be summarised as:

Was there a full explanation of the delay?

Was there a satisfactory explanation of the delay?

What is the…

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.

Continue reading Al-Ebadi v Guo

Details

AGLC: Al-Ebadi v Guo [2017] NSWDC 107
Case: [2017] NSWDC 107
Decision Date: 14 March 2017

CaseChat Overview and Summary

The plaintiff, Al-Ebadi, sought leave to commence motor accident proceedings against the defendant, Guo, outside the limitation period. The delay in filing was due to a one-month oversight by the plaintiff's solicitors, attributed to a diary error. The nature of the dispute involved the validity of the plaintiff's claim, which was potentially impacted by an earlier motor accident, and the assessment of damages if the claim were to succeed.

The central legal issue before the court was whether the plaintiff could be granted leave to commence proceedings outside the statutory limitation period, as provided under section 109(1) of the Motor Accidents Compensation Act 1999. The court had to determine if the explanation for the delay was full and satisfactory, considering the circumstances of the case. Additionally, the court needed to weigh the potential damages in relation to the earlier motor accident against the current claim.

The court granted the plaintiff leave to commence the proceedings outside the limitation period. The reasoning included the solicitors' explanation for the delay, which was deemed to be a full and satisfactory account of the circumstances. The court considered the "damages likely to be awarded" in the event of a successful claim and the impact of the earlier motor accident on the current claim. The defendant's motion was dismissed, and costs were ordered to be paid by the plaintiff's solicitor for the preparation and the first day of the hearing of the application. The matter was to be stood over for directions.

The orders included granting the plaintiff leave to commence proceedings out of time, dismissing the defendant's notice of motion, directing the plaintiff's solicitor to pay specific costs, and setting a date for further directions. Exhibits were to be returned forthwith and presented in court.

Orders

Orders of the court

(1) Leave granted to the plaintiff to commence proceedings out of time under s 109(1) of the Motor Accidents Compensation Act 1999.

(2) Defendant’s notice of motion dismissed.

(3) Plaintiff’s solicitor to pay the costs of the preparation and first day of the hearing of the application, otherwise costs of the application to be costs in the proceedings.

(4) Stand over the matter for directions on Thursday, 16 March 2017 at 10am before the Judicial Registrar.

(5) Exhibits returned forthwith (and returned in court).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Al-Ebadi v Guo [2017] NSWDC 107
Hearing dates:	9, 10 and 13 March 2017
Date of orders:	14 March 2017
Decision date:	14 March 2017
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Leave granted to the plaintiff to commence proceedings out of time under s 109(1) of the Motor Accidents Compensation Act 1999. (2) Defendant’s notice of motion dismissed. (3) Plaintiff’s solicitor to pay the costs of the preparation and first day of the hearing of the application, otherwise costs of the application to be costs in the proceedings. (4) Stand over the matter for directions on Thursday, 16 March 2017 at 10am before the Judicial Registrar. (5) Exhibits returned forthwith (and returned in court).
Catchwords:	MOTOR ACCIDENT – leave to commence proceedings outside limitation period – one month delay – diary error by solicitors – full and satisfactory explanation – earlier motor vehicle accident – “damages likely to be awarded” – “if the claim succeeds”
Legislation Cited:	Motor Accidents Compensation Act 1999, s 3, s 66, s 83, s 109
Cases Cited:	Dijakovic v Perez [2015] NSWCA 174 Eades v Gunestepe [2012] NSWCA 204 Holt v Wynter (2000) 49 NSWLR 128 Reeves v Reeves [2002] NSWCA 181 Sinclair v Darwich [2010] NSWCA 195
Category:	Procedural and other rulings
Parties:	Majid Al-Ebadi (plaintiff) Bin Guo (defendant)
Representation:	Counsel: Mr D Hanna (plaintiff) Mr W Fitzsimmons (defendant) Solicitors: Danawe Lawyers (plaintiff) McInnes Wilson Lawyers (defendant)
File Number(s):	2016/183046
Publication restriction:	None