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 161Category: Procedural and other rulings Parties: Plaintiff: Emily Rose Cole-Herring
Defendant: Joshua David BourkeRepresentation: Counsel:
Solicitors:
Plaintiff: Mr A Canceri
Defendant: Mr R Perla
Plaintiff: CMC Lawyers
Defendant: Moray & Agnew
File Number(s): 2017/361265 Publication restriction: None
Judgment
Introduction
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The defendant by notice of motion filed on 21 December 2017 seeks orders as follows:
The plaintiff’s statement of claim be dismissed for breach of s 72 of the Motor Accidents Compensation Act 1999 (NSW).
The plaintiff to pay the defendant’s costs.
Such other orders as this honourable court deems fit.
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The evidence relied upon by the parties was as follows:
The affidavit of Julian Edward Kenda affirmed on 26 February 2018 (Exhibit A – relied upon by the defendant/applicant);
The affidavit of Emily Rose Cole-Herring dated 1 March 2018 (Exhibit 1 – relied upon by the plaintiff/respondent);
The affidavit of Silvia Thompson sworn 15 February 2018 (Exhibit 2 – relied upon by the plaintiff/respondent).
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The plaintiff was cross-examined on her affidavit.
The plaintiff’s evidence
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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.
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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.
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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.…
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- AGLC
- Cole-Herring v Bourke [2018] NSWDC 41
- Case
- [2018] NSWDC 41
- Decision Date
CaseChat Overview and Summary
The court was required to determine if the explanation provided by the plaintiff was sufficient to meet the statutory requirements and if the delay was justified. The central issue was whether the delay in filing the claim was adequately justified and whether the explanation provided was comprehensive and satisfactory under the relevant legislative framework.
The court found that there was no issue of principle that needed to be resolved, as the explanation provided by the plaintiff was deemed satisfactory. Consequently, the court dismissed the defendant’s application for the claim to be dismissed. The matter was subsequently stood over to the Case Managed List before the Judicial Registrar for future directions, and the plaintiff was awarded costs.
Orders
Orders of the court
(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.
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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