Cole-Herring v Bourke

[2018] NSWDC 41

District Court

New South Wales

Medium Neutral Citation:	Cole-Herring v Bourke [2018] NSWDC 41
Hearing dates:	2 March 2018
Date of orders:	06 March 2018
Decision date:	06 March 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Notice of motion dismissed. (2) Costs to be plaintiff’s costs in the cause. (3) Matter stood over to the Case Managed List before the Judicial Registrar on Friday 9 March 2018 for future directions.
Catchwords:	TORT – motor vehicle claim – application by defendant for claim to be dismissed for breach of s 72 of the Motor Accidents Compensation Act 1999 (NSW) – whether plaintiff had provided a full and satisfactory explanation for delay – no issue of principle
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 66, 72 and 73
Cases Cited:	Curnow v Roman Catholic Trust Corp Diocese of Melbourne [2006] VSC 364 Diaz v Truong (2002) 37 MVR 158 Karambelas v Zaknic (No 2) (2014) 69 MVR 127 Nominal Defendant v Browne (2013) 64 MVR 214 Smith v Grant (2006) 67 NSWLR 735 Walker v Howard (2009) 78 NSWLR 161
Category:	Procedural and other rulings
Parties:	Plaintiff: Emily Rose Cole-Herring Defendant: Joshua David Bourke
Representation:	Counsel: Plaintiff: Mr A Canceri Defendant: Mr R Perla   Solicitors: Plaintiff: CMC Lawyers Defendant: Moray & Agnew
File Number(s):	2017/361265
Publication restriction:	None

Judgment

Introduction

1. The defendant by notice of motion filed on 21 December 2017 seeks orders as follows:

1. The plaintiff’s statement of claim be dismissed for breach of s 72 of the Motor Accidents Compensation Act 1999 (NSW).

2. The plaintiff to pay the defendant’s costs.

3. Such other orders as this honourable court deems fit.

2. The evidence relied upon by the parties was as follows:

1. The affidavit of Julian Edward Kenda affirmed on 26 February 2018 (Exhibit A – relied upon by the defendant/applicant);

2. The affidavit of Emily Rose Cole-Herring dated 1 March 2018 (Exhibit 1 – relied upon by the plaintiff/respondent);

3. The affidavit of Silvia Thompson sworn 15 February 2018 (Exhibit 2 – relied upon by the plaintiff/respondent).

3. The plaintiff was cross-examined on her affidavit.

The plaintiff’s evidence

4. The plaintiff commenced proceedings by statement of claim filed on 29 November 2017 for injuries sustained in a motor vehicle accident occurring on the Barrier Highway in Cobar. She was the passenger in the motor vehicle when the defendant crossed to the incorrect side of the road resulting in a T-bone collision with the vehicle in which the plaintiff was travelling.

5. The plaintiff’s injuries were serious. She was transported by ambulance to Cobar Base Hospital and airlifted to Dubbo Hospital on the day of the accident and discharged from Dubbo Hospital on 14 April 2014 in a back-brace which she was required to wear for six weeks.

6. The plaintiff’s prior medical history was, for a person her age, one of very serious ill health. She was just out of her teenage years when she became unwell in 2009. In November 2009, two weeks before her 21st birthday, she was diagnosed with acute lymphoblastic leukaemia.…