Annetts v Bone - [2014] NSWDC 285

District Court

New South Wales

Case Name:	Annetts v Bone and ANOR
Medium Neutral Citation:	[2014] NSWDC 285
Hearing Date(s):	16 July and 26 September 2014
Decision Date:	4 December 2014
Jurisdiction:	Civil
Before:	Colefax SC DCJ
Decision:	Leave granted to Plaintiff to commence and continue proceedings more than 3 years after the date of the motor vehicle accident, following the provision of a full and satisfactory explanation for the delay.
Catchwords:	Motor vehicle accident - delays in submitting claim form and commencing proceedings – full and satisfactory explanation for delays
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 40 (2), 66, 73 (1) and (5), and 109
Cases Cited:	Ellis v Reko Pty Limited [2010] NSWCA 319; Figliuzzi v Yonan [2005] NSWCA 290; cf Brisbane South Regional Health Authority v Taylor [1996] HCA 25.
Category:	Procedural and other rulings
Parties:	Ronald George Annetts (Plaintiff/ Respondent/ Applicant) Robert Leslie Bone (1st Defendant/Applicant/Respondent) F.L.Green Distribution Pty Limited (2nd Defendant/Applicant/Respondent)
Representation:	Counsel: Mr Morgan (Plaintiff) Mr Turnbull (Defendants)
File Number(s):	2013/340018 and 2014/52662

JUDGMENT

On 13 September 2002 the plaintiff, Ronald George Annetts, was injured in a motor vehicle collision which involved three motor vehicles. One of those motor vehicles was driven by the plaintiff (in the course of his employment). Another vehicle was owned by the second defendant and driven by the first defendant. The final vehicle had two occupants, both of whom were killed in that collision.
The plaintiff did not sustain any physical injury as a result of the collision but it would appear he sustained some degree of psychological or psychiatric injury in the nature of depression and post-traumatic stress disorder.
The plaintiff did not submit a claim form within the six months following the collision as required by the Motor Accidents Compensation Act 1999 (NSW) (“the Act”); nor did he file a Statement of Claim within three years of the collision as was also required by the Act.
Rather, a claim form was submitted on 1 February 2013 and a Statement of Claim filed in this court on 11 November 2013 (matter No. 13/340018).
In these circumstances the court presently has before it two applications.
First, a Notice of Motion filed by the defendants on 8 January 2014 in the proceedings initiated by the Statement of Claim. By that Notice of Motion the defendants, amongst other things, seek an order dismissing the proceedings pursuant to section 73(5) of the Act (i.e. because of the delay in the making of the claim).
Secondly, a Summons filed by the plaintiff on 19 January 2014 (being proceedings No. 14/52662). At the time the Summons was filed, the plaintiff only sought an order pursuant to section 109 of the Act (i.e. an application for leave to commence proceedings more than three years after the date of the relevant accident).
Both the Notice of Motion and the Summons were listed for hearing on 16 July 2014.
On that occasion I granted leave to the plaintiff to amend 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 Annetts v Bone

Details

AGLC: Annetts v Bone [2014] NSWDC 285
Case: [2014] NSWDC 285
Decision Date: 4 December 2014

CaseChat Overview and Summary

Annetts, the plaintiff, sought leave to commence and continue proceedings more than three years after a motor vehicle accident against Bone, the defendant. The application was heard in the Supreme Court of New South Wales. The primary issue for the court was whether the plaintiff had provided a full and satisfactory explanation for the delay in submitting a claim form and initiating proceedings, thereby warranting an extension of the statutory time limits.

The court considered the principles set out in previous cases, which require a plaintiff to provide a plausible and convincing explanation for any delay in initiating proceedings. The plaintiff argued that personal and health-related issues, as well as difficulties in locating the defendant, constituted a full and satisfactory explanation for the delay. The court assessed the sufficiency of the explanation by examining the nature and duration of the delays, the reasons provided, and the plaintiff's diligence in pursuing the claim once aware of the accident. The court held that the plaintiff's explanation, while not ideal, was nonetheless satisfactory as it demonstrated that the plaintiff had been impeded by unforeseen and uncontrollable circumstances.

The court concluded that the plaintiff had provided a full and satisfactory explanation for the delay and granted leave for the proceedings to continue. The explanation included details of the plaintiff's health issues and the difficulties in locating the defendant, which were considered to be sufficient to justify the delay. The court also noted the plaintiff's prompt action in pursuing the claim once the issues were resolved. As a result, the plaintiff was permitted to commence and continue the proceedings despite the delay.

Orders

Orders of the court

Leave granted to Plaintiff to commence and continue proceedings more than 3 years after the date of the motor vehicle accident, following the provision of a full and satisfactory explanation for the delay.

Background

Background to the litigation

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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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