Christopher Costello v Mark Arragon

Case [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…

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Christopher COSTELLO v Mark ARRAGON [2004] NSWCA 240
Case
[2004] NSWCA 240
Decision Date

CaseChat Overview and Summary

Christopher Costello (the plaintiff) sought damages for injuries sustained in a motor accident from Mark Arragon (the defendant). The plaintiff's claim was brought outside the limitation period prescribed by the *Motor Accidents Act 1988* (NSW), necessitating an application for the court's leave to proceed. The appeal concerned the plaintiff's application for leave to commence proceedings out of time.

The primary legal issue before the court was whether the plaintiff had provided a full and satisfactory explanation for the delay in commencing proceedings. A related issue was whether the plaintiff had received and accepted advice not to proceed with his motor accident claim, which would bear on the reasonableness of any subsequent delay.

The court considered the plaintiff's explanation for the delay, which involved a period where he had been advised not to proceed with his claim. The court found that while the plaintiff had been given advice not to proceed, this advice did not absolve him of the responsibility to provide a full and satisfactory explanation for the subsequent delay in commencing proceedings. The court applied the principles governing applications for leave to commence proceedings out of time under the *Motor Accidents Act 1988*, emphasizing the need for a comprehensive and convincing explanation for the delay.

The court granted leave to appeal but ultimately dismissed the appeal, ordering the plaintiff to pay the defendant's costs.

Orders

Orders of the court

Grant leave to appeal. Appeal dismissed with costs.

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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