Bano v Lucic

District Court

New South Wales

Medium Neutral Citation:

Bano v Lucic [2013] NSWDC 224

Hearing dates:

20/08/2013 & 24/10/2013

Decision date:

19 November 2013

Jurisdiction:

Civil

Before:

Levy SC DCJ

Decision:

See paragraph [48] for orders

[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 - contested application by plaintiff seeking leave to proceed with motor vehicle accident claim filed out of time - whether delay fully and satisfactorily explained - whether relevant prejudice demonstrated; COSTS - which party should pay costs

Legislation Cited:

Motor Accidents Compensation Act 1999, s 66(2), s 72, s 73, s 109

Cases Cited:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Ellis v Reko Pty Limited [2010] NSWCA 319
Smith v Grant [2006] NSWCA 244
Walker v Howard [2009] NSWCA 408

Category:

Interlocutory applications

Parties:

Farida Bano (Plaintiff)
Adrijana Lucic (Defendant)

Representation:

Mr P Khandhar (Plaintiff)
Mr ID Cullen (Defendant)
Brydens (Plaintiff)
McInnes Wilson (Defendant)

File Number(s):

2013/15542

Publication restriction:

None

Judgment

Table of Contents

Notice of Motion	[1] - [4]
Issues	[5] - [7]
Evidence	[8] - [9]
Facts	[10] - [30]
Issue 1 - Whether delay satisfactorily explained	[31] - [36]
Issue 2 - Whether relevant prejudice exists	[37] - [42]
Disposition	[43]
Costs	[44] - [47]
Orders	[48]

Notices of Motion

1. On 20 August 2013, there were two notices of motion listed for the determination of procedural issues arising pursuant to the Motor Accidents Compensation Act 1999 ["MAC Act"] concerning the plaintiff's statement of claim filed on 17 January 2013 relating to a motor vehicle accident involving the parties that occurred on 18 November 2008.

1. On 20 August 2013, the parties were not ready to proceed. The hearing of the respective motions was then stood over to 24 and 25 October 2013.

1. The first notice of motion was filed by the defendant, Adrijana Lucic, on 13 March 2013, seeking dismissal of the plaintiff's proceedings as being a late claim for which no full or satisfactory explanation had been provided, within the meaning of s 73 of the MAC Act.

1. The second notice of motion was filed by the plaintiff, Farida Bano, on 24 May 2013, pursuant to s 109 of the MAC Act, seeking an order nunc pro tunc, for leave to maintain her proceedings that were filed late.

Issues

1. By the time of the resumed hearing on 24 October 2013, the issues for determination had been substantially shortened. The subsequent reserved day was no longer needed as the issues arising under s 109 of the MAC Act no longer required adjudication.

1. The remaining issues were first, whether the…