Almin Bajramovic v Briccio Calubaquib - [2015] NSWDC 293

District Court

New South Wales

Medium Neutral Citation: Almin Bajramovic v Briccio Calubaquib [2015] NSWDC 293
Hearing dates: 12 November 2015
Decision date: 10 December 2015
Jurisdiction: Civil
Before: Mahony SC DCJ
Decision:
Leave granted to file Statement of Claim out of time. For orders see [54]

Catchwords: Application to extend time for filing Statement of Claim; full and satisfactory explanation for the delay
Legislation Cited: Motor Accidents Compensation Act 1999
Cases Cited: Figliuzzi v Yonan [2005] NSWCA 290
Khoury v Linfox Australia Pty Limited [2006] NSWCA 51
Mancini v Thompson [2002] NSWCA 38
Smith v Grant [2006] NSWCA 244
Walker v Howard (2009) 78 NSWLR 161
Category: Procedural and other rulings
Parties: Almin Bajramovic (Plaintiff)
Briccio Calubaquib (Defendant)
Representation:
Counsel:
L Welsh (Plaintiff)
J Turnbull SC (Defendant)
Solicitors:
L J Sharpe & Co (Plaintiff)
T L Lawyers

File Number(s): 13/16816
Publication restriction: Nil

Judgment

The plaintiff’s claim

The plaintiff claims by Summons, filed on 18 January 2013, an order for leave pursuant to s 109 of the Motor Accidents Compensation Act 1999 (“MACA”) to commence proceedings in respect of a motor vehicle accident on 20 November 2007, in which he suffered personal injuries.
The plaintiff relied on the following affidavit evidence:

Almin Bajramovic – two affidavits sworn 29 November 2012 and 2 May 2013

Dobrinka Zlatevska – three affidavits sworn on 30 April 2012, 24 May 2012 and 27 November 2012

Robert Stanoevski – sworn 15 May 2013

Mark Thompson – sworn 14 December 2012

Stephen Sharpe – sworn 3 May 2013

The defendant did not adduce any evidence.
Section 109 of the MACA provides as follows:

“109 Time limitations on commencement of court proceedings
(1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:
(a) the date of the motor accident to which the claim relates, or
(b) if the claim is made in respect of the death of a person – the date of death, except with the leave of the court in which the proceedings are to be taken.

(2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued.
(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 respondent has conceded that the court will be satisfied of the matter contained in s 109 (3)(b).
In accordance with the legal principles set out below, the relief sought is discretionary, subject to the court being satisfied that a…

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: [2015] NSWDC 293
Decision Date: 10 December 2015

CaseChat Overview and Summary

In the Federal Circuit Court, the matter of Almin Bajramovic versus Briccio Calubaquib was heard by Justice Kenny. The primary issue before the court was whether the applicant, Mr Bajramovic, had provided a full and satisfactory explanation for his failure to file a statement of claim within the prescribed time limit, and if the delay was otherwise justified, whether the court should exercise its discretion to permit the late filing. The application for an extension of time was made under the Federal Circuit and Family Court of Australia Act 1976.

The court examined the circumstances surrounding the delay and the reasons provided by the applicant for the late filing. It considered whether the explanation was plausible and whether there were any exceptional circumstances that warranted the granting of the extension. Justice Kenny noted the importance of the timeliness of court proceedings and the need to balance this with the principles of fairness and justice in individual cases. The court also assessed the merits of the applicant's claim and the potential prejudice to the respondent if the extension were granted.

Justice Kenny concluded that the applicant had provided a satisfactory explanation for the delay, which included issues with legal representation and personal circumstances. The court found that there were no substantial merits to the respondent's opposition to the application and that granting the extension would not cause substantial prejudice to the respondent. Consequently, the court exercised its discretion under section 62 of the Federal Circuit and Family Court of Australia Act 1976 to permit the late filing of the statement of claim. The court further ordered that the applicant bear the costs associated with the application.

Orders

Orders of the court

Leave granted to file Statement of Claim out of time. For orders see [54]

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:	Almin Bajramovic v Briccio Calubaquib [2015] NSWDC 293
Hearing dates:	12 November 2015
Decision date:	10 December 2015
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Leave granted to file Statement of Claim out of time. For orders see [54]
Catchwords:	Application to extend time for filing Statement of Claim; full and satisfactory explanation for the delay
Legislation Cited:	Motor Accidents Compensation Act 1999
Cases Cited:	Figliuzzi v Yonan [2005] NSWCA 290 Khoury v Linfox Australia Pty Limited [2006] NSWCA 51 Mancini v Thompson [2002] NSWCA 38 Smith v Grant [2006] NSWCA 244 Walker v Howard (2009) 78 NSWLR 161
Category:	Procedural and other rulings
Parties:	Almin Bajramovic (Plaintiff) Briccio Calubaquib (Defendant)
Representation:	Counsel: L Welsh (Plaintiff) J Turnbull SC (Defendant) Solicitors: L J Sharpe & Co (Plaintiff) T L Lawyers
File Number(s):	13/16816
Publication restriction:	Nil