D'Aquino Bros Pty Limited v Glanville

The appeal concerned an application for leave to commence proceedings out of time under section 52(4) of the *Motor Accidents Act 1988* (NSW). The applicant, D'Aquino Bros Pty Limited, sought to appeal orders made by Boyd-Boland ADCJ which granted leave to the respondent, Mr Glanville, to commence proceedings against D'Aquino Bros out of time. The dispute centred on whether Mr Glanville had provided a sufficient explanation for the delay in commencing his claim and whether D'Aquino Bros would suffer significant prejudice if the proceedings were allowed to continue. The appeal was heard by Meagher, Santow and Ipp JJA of the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the primary judge erred in finding that Mr Glanville had provided a full and satisfactory explanation for the delay in commencing his proceedings, and whether the primary judge erred in identifying the specific vehicle involved in the accident. Crucially, the court had to determine whether it was fair and just to grant leave to commence proceedings out of time, considering the diligence (or lack thereof) of the plaintiff and his legal representatives in asserting his rights, and the potential prejudice to the defendant.

The Court of Appeal upheld the appeal in part, setting aside the declaratory orders made by the primary judge concerning the adequacy of Mr Glanville's explanation for the delay and the identification of the Isuzu vehicle as the one involved in the accident. However, the court dismissed the appeal otherwise, meaning that Mr Glanville was still permitted to commence proceedings out of time, albeit without the specific declarations made by the primary judge. The court ordered that Mr Glanville pay the costs of the appeal.