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Choukor v Spiroski

Choukor v Spiroski

Case [2016] NSWDC 358 13 December 2016

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District Court

New South Wales

Medium Neutral Citation: Choukor v Spiroski [2016] NSWDC 358
Hearing dates: 5 December 2016
Date of orders: 13 December 2016
Decision date: 13 December 2016
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) That the Notice of Motion filed by the defendant on 20 July 2016 is dismissed.
(2) That the defendant is to pay the plaintiff’s costs of the Notice of Motion filed 20 July 2016;
(3) The parties have liberty to apply on two business days’ notice to vary the order in (2) above.

Catchwords: Motor accident claim – tort - negligence – failure by the plaintiff to make a claim within 6 months after the date of the accident – whether the plaintiff has a full and satisfactory explanation for the delay in making the claim
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Buller v Black [2003] NSWCA 45
Dijakovic v Perez [2015] NSWCA 174
Ellis v Reko Pty Ltd [2010] NSWCA 319
Figliuzzi v Yonan [2005] NSWCA 290
Karambelas v Zaknic (No 2) [2014] NSWCA 433
Lyu v Jeon [2012] NSWCA 446
Nominal Defendant v Browne [2013] NSWCA 197
Smith v Grant [2006] NSWCA 244
Walker v Howard [2009] NSWCA 408; 78 NSWLR 161
Category: Principal judgment
Parties: Fatima Choukor (Plaintiff)
Riste Spiroski (Defendant)
Representation:
Counsel:
M Daley (Plaintiff)
B Wilson (Defendant)
Solicitors:
Cameron Gillingham Boyd (Plaintiff)
Holman Webb Lawyers (Defendant)

File Number(s): 2016/00159417

Judgment

Before the court is a Notice of Motion filed 20 July 2016 by the defendant for orders that the proceedings be dismissed pursuant to Section 73(5) of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”). The application arises out of proceedings commenced by the plaintiff on 24 May 2016.
The plaintiff asserts that on 27 April 2013 a vehicle which she was driving had a collision with a motor vehicle driven by the defendant in the vicinity of the intersection of Queens Road and Croydon Road, Hurstville in Sydney in New South Wales. The plaintiff alleges in the Statement of Claim the accident was caused by the negligence of the defendant.
The plaintiff also alleges that she suffered serious injuries in the accident. Evidence shows that the injuries include a serious injury to the plaintiff’s right eye which has left her with permanently impaired vision in that eye. The Part 15, Rule 12 Statement filed on 24 May 2016 claims that the plaintiff has serious ongoing disabilities including loss of vision to the right eye, pain and stiffness to the neck, back and right shoulder and depression.
By his Defence dated 20 July 2016 the defendant has denied liability. It appears that there will be an issue between the parties at the final hearing as to who was at fault in relation to the accident.
The issue in the Notice of Motion is whether the plaintiff has provided a full and satisfactory explanation for a delay by her in making a claim in relation to 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 Choukor v Spiroski

Details

AGLC: Choukor v Spiroski [2016] NSWDC 358
Case: [2016] NSWDC 358
Decision Date: 13 December 2016

CaseChat Overview and Summary

The parties in Choukor v Spiroski were the plaintiff, Choukor, and the defendant, Spiroski. The plaintiff brought a claim against the defendant following a motor accident, seeking compensation for injuries sustained. The defendant sought to have the claim dismissed on the basis that the plaintiff had not complied with the requirement to lodge a claim within six months of the accident. The case was heard in the Federal Circuit Court of Australia.

The central legal issue was whether the plaintiff had provided a full and satisfactory explanation for the delay in lodging the claim. The court was required to determine whether the plaintiff's explanation for the delay was reasonable and whether the delay had prejudiced the defendant's ability to defend the claim. The court also had to consider whether the delay had caused any injustice to the plaintiff.

The court found that the plaintiff had provided a reasonable explanation for the delay in lodging the claim and that the delay had not prejudiced the defendant or caused any injustice to the plaintiff. The court noted that the plaintiff had suffered significant injuries and had undergone extensive medical treatment, which had delayed the lodgement of the claim. The court held that the plaintiff's explanation for the delay was satisfactory and that the defendant's motion to dismiss the claim should be dismissed. The court also ordered that the defendant pay the plaintiff's costs of the motion.

The final orders of the court were that the defendant's Notice of Motion filed on 20 July 2016 was dismissed, that the defendant pay the plaintiff's costs of the motion, and that the parties have liberty to apply on two business days' notice to vary the order in (2) above.

Orders

Orders of the court

(1) That the Notice of Motion filed by the defendant on 20 July 2016 is dismissed.

(2) That the defendant is to pay the plaintiff’s costs of the Notice of Motion filed 20 July 2016;

(3) The parties have liberty to apply on two business days’ notice to vary the order in (2) above.

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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Citations

AGLC Citation

Choukor v Spiroski [2016] NSWDC 358

Cases citing this decision · 3 of 4 shown

Fitzpatrick v Cervo
[2020] NSWDC 619 Para 23

…plicable to whether a plaintiff has provided a full and satisfactory explanation for the delay in making a motor accident claim in Choukor v Spiroski [2016] NSWDC 358 at [21]-[28]. As in the present case, in Choukor the defendant was the moving party on the motion seeking orders under s 73(5) of MACA. I concluded t…
Mohammed Buhora by his Tutor Sheilana Buhora v Iftyaz Ali Khan; Ziabudeen Buhora v Iftyaz Ali Khan; Sheilana Buhora v Iftyaz Ali Khan
[2019] NSWDC 517 Para 47

…In considering this issue, I refer to the statement of principles by me in Choukor v Spiroski [2016] NSWDC 358 at [21]-[28]; by Gibson DCJ in Bird v Connell [2016] NSWDC 376 and by Montgomery DCJ in Margaret Baker v Ross Baker [2017] NSWDC 93. In the case I referred to decided by me of Choukor v Spiroski , I note t…
Choukor v Spiroski (No 2)
[2017] NSWDC 15 Para 5

…16 and took up most of that hearing day. In the judgment dated 13 December 2016 the plaintiff was successful on both of the grounds relied on by her: [2016] NSWDC 358.…

View all 4 citing cases →

Cases cited in this decision · 10 of 10 shown

Dijakovic v Perez
[2015] NSWCA 174 Para 27

…In Dijakovic v Perez [2015] NSWCA 174 Gleeson JA (with whom Leeming JA and McCallum J agreed) stated as follows in paragraphs [15]-[19]:…
Karambelas v Zaknic (No. 2)
[2014] NSWCA 433 Para 26

…In Karambelas v Zaknic (No 2) [2014] NSWCA 433 Meagher JA (with whom Basten JA and Simpson J agreed) stated as follows at paragraphs [16]-[17]:…
Nominal Defendant v Browne
[2013] NSWCA 197 Para 25

…In Nominal Defendant v Browne [2013] NSWCA 197, Basten JA (with whom Barrett and Gleeson JJA agreed) stated as follows in paragraphs [23]-[24]:…
Lyu v Jeon
[2012] NSWCA 446 Para 40

…test requires that the characteristics and circumstances of the claimant must be taken into account when applying the objective standard: Lyu v Jeon [2012] NSWCA 446 at [22]-[23]. I have set out above in the facts, the full circumstances relating to the plaintiff.…
Ellis v Reko Pty Limited
[2010] NSWCA 319 Para 2

…is not sufficient that the court should be asked to draw inferences from correspondence at least where that is not obvious: Ellis v Reko Pty Ltd [2010] NSWCA 319 at [19]. The plaintiff carries the onus of satisfying the court that she has fulfilled the requirements of Section 66 of MACA and that the explanation pr…
Walker v Howard
[2009] NSWCA 408 Para 24

…f cannot provide that explanation but may require the delay to be explained by legal practitioners acting on behalf of the plaintiff: Walker v Howard [2009] NSWCA 408 at [72] and [106].…
Smith v Grant
[2006] NSWCA 244 Para 2

…t she has fulfilled the requirements of Section 66 of MACA and that the explanation proffered by her is both full and satisfactory: Smith v Grant [2006] NSWCA 244 at [14]. It was submitted that the case of Figliuzzi v Yonan [2005] NSWCA 290 is relevant in particular, the defendant relying on paragraph [102] of the…
Figliuzzi v Yonan
[2005] NSWCA 290 Para 2

…ation proffered by her is both full and satisfactory: Smith v Grant [2006] NSWCA 244 at [14]. It was submitted that the case of Figliuzzi v Yonan [2005] NSWCA 290 is relevant in particular, the defendant relying on paragraph [102] of the judgment of Justice Tobias where his Honour stated as follows:…
Buller v Black
[2003] NSWCA 45 Para 23

…d by the plaintiff must be full, not “pick and choose” the information to be given relevant to the delay. It must be complete: see Buller v Black [2003] NSWCA 45 per Mason P at [42]-[46]. Although his Honour dissented in the result in that case there appears to have been agreement with the majority in relation to…
Mancini v Thompson
[2002] NSWCA 38

…the application of the definition in s 66(2) to the circumstances of a late claim, and is not inconsistent with the decision in Mancini v Thompson [2002] NSWCA 38, which makes clear that the focus of the "full" account is on the period of delay to be explained: at [46] - [47] per Rolfe AJA, Beazley and Stein JJA…

Legislation cited in this decision · 2

Evidence Act 1995 (Cth)
1 mention (from Para 2)
Motor Accidents Compensation Act 1999 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Choukor v Spiroski [2016] NSWDC 358
Hearing dates:	5 December 2016
Date of orders:	13 December 2016
Decision date:	13 December 2016
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) That the Notice of Motion filed by the defendant on 20 July 2016 is dismissed. (2) That the defendant is to pay the plaintiff’s costs of the Notice of Motion filed 20 July 2016; (3) The parties have liberty to apply on two business days’ notice to vary the order in (2) above.
Catchwords:	Motor accident claim – tort - negligence – failure by the plaintiff to make a claim within 6 months after the date of the accident – whether the plaintiff has a full and satisfactory explanation for the delay in making the claim
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Buller v Black [2003] NSWCA 45 Dijakovic v Perez [2015] NSWCA 174 Ellis v Reko Pty Ltd [2010] NSWCA 319 Figliuzzi v Yonan [2005] NSWCA 290 Karambelas v Zaknic (No 2) [2014] NSWCA 433 Lyu v Jeon [2012] NSWCA 446 Nominal Defendant v Browne [2013] NSWCA 197 Smith v Grant [2006] NSWCA 244 Walker v Howard [2009] NSWCA 408; 78 NSWLR 161
Category:	Principal judgment
Parties:	Fatima Choukor (Plaintiff) Riste Spiroski (Defendant)
Representation:	Counsel: M Daley (Plaintiff) B Wilson (Defendant) Solicitors: Cameron Gillingham Boyd (Plaintiff) Holman Webb Lawyers (Defendant)
File Number(s):	2016/00159417