Rodrigo Diaz - 1st claimant Asotoelau Pritchard - 2nd claimant Tu Trinh Truong by her tutor Loan Mai - opponent
JUDGMENT OF:
Giles JA at 1; Hodgson JA at 62; Foster AJA at 109
LOWER COURT JURISDICTION :
District Court
LOWER COURT FILE NUMBER(S) :
DC1154/01
LOWER COURT JUDICIAL OFFICER :
Coorey DCJ
COUNSEL:
Mr. H. Shore for claimants Dr. A.S. Morrison SC with Mr. P.J. Nolan for opponent
SOLICITORS:
Dibbs Barker Gosling, Sydney for claimants Stacks, Sydney for opponent
CATCHWORDS:
LIMITATION OF ACTIONS - Motor vehicle accidents - Leave to commence proceedings out of time - Full and satisfactory explanation for the delay - Whether by claimant or persons acting on her behalf - Provision of particulars - Denial of liability - Whether proceedings can be commenced notwithstanding non-supply of particulars.
1. Leave to appeal granted. 2. Appeal dismissed. 3. Claimants to pay opponent's costs of the application for leave and appeal, and to have a Suitors Fund certificate if otherwise entitled.
CA 40101/02 DC 1154/01
GILES JA HODGSON JA FOSTER AJA
Monday 19 August 2002
Rodrigo DIAZ & ANOR. v. Tu TrinhTRUONG
by her tutor Loan MAI
Judgment
1 GILES JA: On 2 October 1997 the opponent was injured when struck by a motor vehicle owned by the second claimant and driven by the first claimant. By s 52(4) of the Motor Accidents Act 1988, she was not entitled to commence proceedings in respect of her claim for damages more than three years after that date except with the leave of the court in which the proceedings were to be taken. Her proceedings were not commenced within the three year period. On 15 February 2001 she filed a notice of motion in the District Court applying for leave to commence proceedings against the claimants by the filing of a statement of claim within 28 days. The notice of motion was heard by Coorey DCJ on 25 July 2001. On 19 October 2001, for reasons then published, his Honour granted leave.
2 By a summons filed in this Court on 14 February 2002 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.
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Details
AGLC
Diaz v Truong [2002] NSWCA 265
Case
[2002] NSWCA 265
Decision Date
CaseChat Overview and Summary
The case of *Diaz v Truong* concerned an application for leave to commence proceedings out of time following a motor vehicle accident. The claimants sought to bring their action despite the expiry of the limitation period.
The primary legal issues before the court were whether the claimants had provided a "full and satisfactory explanation" for the delay in commencing proceedings, and whether proceedings could be commenced notwithstanding the non-supply of particulars to the defendant.
The court considered the requirements of the relevant limitation legislation, particularly concerning the need for a full and satisfactory explanation for any delay, whether that delay was attributable to the claimant or those acting on their behalf. The court also examined the interplay between the provision of particulars and the ability to commence proceedings.
The Court of Appeal granted leave to appeal but ultimately dismissed the appeal, ordering the claimants to pay the opponent's costs.
Orders
Orders of the court
1. Leave to appeal granted. 2. Appeal dismissed. 3. Claimants to pay opponent's costs of the application for leave and appeal, and to have a Suitors Fund certificate if otherwise entitled.