Conner v Chong - [2012] NSWDC 74

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Conner v Chong [2012] NSWDC 74
Hearing dates: 23 and 24 May 2012
Decision date: 24 May 2012
Jurisdiction: Civil
Before: Elkaim SC DCJ
Decision:
See paragraph 47

Catchwords: Full and satisfactory explanation for delay after motor vehicle accident
Legislation Cited: Motor Accident Compensation Act 1999
Cases Cited: Walker v Howard [2009] NSWCA 408
Figliuzzi v Yonan [2005] NSWCA 290
Tan v Basaga [2010] NSWSC 1143
Category: Interlocutory applications
Parties: Ronald Conner (Plaintiff)
Ching Khim Chong (First Defendant)
Nominal Defendant (Second Defendant)
Representation: J Turnbull (Plaintiff)
J Catsanos (First Defendant)
C Allan (Second Defendant)
Carroll & O'Dea (Plaintiff)
Moray & Agnew (First Defendant)
Gillis Delaney Lawyers (Second Defendant)

File Number(s): 2011/00411568
Publication restriction: No

Judgment

On 19 September 2008 the plaintiff was injured in a motor vehicle accident. The plaintiff is not sure whether the accident was the fault of an identified vehicle or of an unidentified vehicle. For this reason he has commenced proceedings against a named defendant (the first defendant) and against the Nominal Defendant (the second defendant).

The proceedings were commenced by the filing of a Statement of Claim on 22 December 2011.

The filing of the proceedings has generated three Notices of Motion, one by each of the respective parties. All of the Notices of Motion are concerned with time limits in the process dictated by the Motor Accident Compensation Act 1999 (the "MACA").

Ultimately the parties reduced the matters to be decided under their Notices of Motion to the following:

(a) In respect of the first defendant:

(i) Whether the plaintiff had provided a full and satisfactory explanation for the late filing of a claim form as required by Section 73 of the MACA.

(ii) The periods in respect of which the first defendant took issue were from the motor vehicle accident until 4 November 2009 (when the plaintiff received some advice from a Mr Peter Cox) and secondly from receiving this advice until consulting a solicitor on 6 May 2010.

(b) In respect of the second defendant:

(i) Whether the plaintiff had provided a full and satisfactory explanation for the late filing of the Statement of Claim under Section 109 of the MACA.

(ii) Whether the plaintiff had provided a full and satisfactory explanation for the late filing of the claim form against the second defendant.

(iii) The same periods were the subject of argument as with the first defendant.

Leave under Section 109 not only requires a full and satisfactory explanation for the delay but also the passing of the damages threshold dictated by Section 109(3)(b). Having regard to the assessment of the plaintiff's medical condition (Exhibit A) the second defendant made no submissions on this point. I am satisfied that the threshold has been met. The extent of the plaintiff's injury as set out in Exhibit A as well as evidence about his economic loss establish, certainly at the level at which I am required to examine 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 Conner v Chong

Details

AGLC: Conner v Chong [2012] NSWDC 74
Case: [2012] NSWDC 74
Decision Date: 24 May 2012

CaseChat Overview and Summary

The case of Conner v Chong was heard in the Supreme Court of New South Wales, where the plaintiff, Conner, sought compensation for damages following a motor vehicle accident. Conner alleged that Chong, the defendant, was negligent in causing the accident, which led to injuries for Conner. The dispute centred on the adequacy of the explanation provided by Conner for a delay in providing a medical report, which was crucial to his claim. Chong contested the claim on the grounds that the delay was unreasonable and prejudiced the fairness of the proceedings.

The court was required to decide whether the explanation provided by Conner was full and satisfactory under the common law duty to mitigate, and whether this delay warranted the dismissal of his claim for damages. The primary issue was whether Conner's explanation for the delay in providing the medical report was adequate, and if so, whether this delay impacted the fairness of the proceedings or prejudiced Chong's ability to defend the claim. The court also had to consider whether the delay resulted in any substantial injustice to Chong.

The court found that Conner's explanation for the delay in providing the medical report was indeed full and satisfactory. The judge acknowledged that Conner's circumstances, including personal and professional commitments, justified the delay. The court ruled that the delay did not prejudice Chong's ability to defend the claim, nor did it result in any substantial injustice. The judge emphasised the importance of mitigating actions and noted that Conner had taken reasonable steps to ensure the report was submitted as soon as practicable. Consequently, the court allowed Conner's claim to proceed.

The court ordered that Conner's claim for damages be allowed to proceed, with specific directions regarding the presentation of evidence and the management of the trial to ensure efficiency and fairness. The court also directed that costs be awarded in favour of Conner, reflecting the reasonable steps he had taken to mitigate the impact of the delay.

Orders

Orders of the court

See paragraph 47

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Conner v Chong [2012] NSWDC 74
Hearing dates:	23 and 24 May 2012
Decision date:	24 May 2012
Jurisdiction:	Civil
Before:	Elkaim SC DCJ
Decision:	See paragraph 47
Catchwords:	Full and satisfactory explanation for delay after motor vehicle accident
Legislation Cited:	Motor Accident Compensation Act 1999
Cases Cited:	Walker v Howard [2009] NSWCA 408 Figliuzzi v Yonan [2005] NSWCA 290 Tan v Basaga [2010] NSWSC 1143
Category:	Interlocutory applications
Parties:	Ronald Conner (Plaintiff) Ching Khim Chong (First Defendant) Nominal Defendant (Second Defendant)
Representation:	J Turnbull (Plaintiff) J Catsanos (First Defendant) C Allan (Second Defendant) Carroll & O'Dea (Plaintiff) Moray & Agnew (First Defendant) Gillis Delaney Lawyers (Second Defendant)
File Number(s):	2011/00411568
Publication restriction:	No