Christopher Costello v Mark Arragon

[2004] NSWCA 240

CITATION:	Christopher COSTELLO v Mark ARRAGON [2004] NSWCA 240
HEARING DATE(S):	5 July 2004
JUDGMENT DATE:	19 July 2004
JUDGMENT OF:	Mason P at 1; McColl JA at 55
DECISION:	Grant leave to appeal. Appeal dismissed with costs.
CATCHWORDS:	Motor Accidents Act 1988 - claim for damages sustained in motor accident - limitation period expired - proceedings not commenced within time so leave of the court required - whether plaintiff provided a full and satisfactory explanation for delay - whether plaintiff had been given and accepted advice not to proceed with car accident claim. (ND)
PARTIES :	Christopher COSTELLO Mark ARRAGON
FILE NUMBER(S):	CA 40716/03
COUNSEL:	Claimant: K Rewell SC/ A Capelin Opponent: C Hoeben SC
SOLICITORS:	Claimant: Dibbs Barker Gosling Opponent: Firths, The Compensation Lawyers

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1736/03
LOWER COURT JUDICIAL OFFICER :	Herron ADCJ

CA 40716 of 2003
DC 1736 of 2003

MASON P
McCOLL JA

Monday 19 July 2004

Christopher COSTELLO v Mark ARRAGON

JUDGMENT

1 MASON P: The Court heard full argument in relation to an application for leave to appeal on the basis that it could address the appeal if leave were granted.

2 The claimant (hereafter “the defendant”) and the opponent (hereafter “the plaintiff”) were the drivers of motor vehicles involved in an accident on 28 February 1999. The plaintiff sustained injuries, particularly to his back, and he wishes to claim damages under the Motor Accidents Act 1988 (the MA Act).

3 The limitation period expired on 28 February 2002 (cf s52(4)). Since proceedings were not commenced within time the plaintiff required the leave of the court. This could not be granted unless the plaintiff provided a full and satisfactory explanation to the court for the delay (s52(4B)(a)). (There was no issue as to the likely damages exceeding the threshold stipulated in s52(4B)(b).)

4

Section 40(2) of the MA Act provides:

In this Part, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.

See generally Russo v Aiello [2003] HCA 53, 77 ALJR 1775, Buller v Black (2003) 56 NSWLR 425.

5 The plaintiff’s first application for leave was dismissed by Freeman DCJ on 27 March 2003 on the basis that there was no material before the court from Messrs Creaghe & Lisle, the solicitors who had carriage of the plaintiff’s legal affairs from immediately after the accident until late 2001.

6 A fresh application was heard by Herron ADCJ. The evidence that had been placed before Judge Freeman was supplemented by a further affidavit of…