Dijakovic v Perez

Case [2015] NSWCA 174


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Dijakovic v Perez [2015] NSWCA 174
Hearing dates:30 April 2015
Decision date: 29 June 2015
Before: Gleeson JA at [1];
Leeming JA at [129];
McCallum J at [134]
Decision:

(1)Leave to appeal be granted.
(2)The appeal be allowed.
(3)The orders made by the District Court on 30 May 2014 be set aside.
(4)In lieu thereof:
(a)grant leave to the plaintiff pursuant to s 109 of the Motor Accidents Compensation Act 1999 (NSW) to commence the proceedings;
(b)the plaintiff’s cost of the notice of motion filed 14 March 2014 be the plaintiff’s costs in the proceedings.
(5)The respondent to pay the applicant’s/appellant’s costs of the application for leave to appeal and the appeal.

Catchwords: MOTOR ACCIDENTS COMPENSATION – failure to commence proceedings for damages within three years of accident – requirement of leave – Motor Accidents Compensation Act 1999 (NSW), s 66(2) and s 109(3) – whether evidence established a “full and satisfactory” explanation for the delay – whether monetary threshold likely to be met – primary judge erred in concluding otherwise
Legislation Cited: Motor Accidents Act 1988 (NSW) s 43A
Motor Accidents Compensation Act 1999 (NSW) s 3, 60, 66, 82, 85A, 89A, 89C, 90, 91, 109
Cases Cited: 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 [2014] NSWCA 409
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364
Brierley v Ellis [2014] NSWCA 230; 67 MVR 282
Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379
Eades v Gunestepe [2012] NSWCA 204; 61 MVR 328 Harika v Tupaea [2003] NSWCA 332; 58 NSWLR 675
House v The King [1936] HCA 40; 55 CLR 499
Karambelas v Zaknic (No 2) [2014] NSWCA 433
Mancini v Thompson [2002] NSWCA 38
Russo v Aiello [2003] HCA 53; 215 CLR 643
Sinclair v Darwich [2010] NSWCA 195; 77 NSWLR 166
Walker v Howard [2009] NSWCA 408; 78 NSWLR 161
Category:Principal judgment
Parties: Mark Ivan John Dijakovic (Applicant)
Alfonso Ricard Sarralde Perez (Respondent)
Representation:

Counsel:
R Sheldon SC / E Welsh (Applicant)
M A Cleary (Respondent)

Solicitors:
Brydens Compensation Lawyers (Applicant)
Moray & Agnew Lawyers (Respondent)
File Number(s):2014/188627; 2014/256119
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Civil
Date of Decision:
30 May 2014
Before:
Olsson DCJ
File Number(s):
2013/375029

Judgment

  1. GLEESON JA: The applicant, Mr Dijakovic, was injured in a motor vehicle accident that occurred at Croydon on 21 October 2009. The respondent, Mr Perez, was the driver of the other vehicle involved. The accident occurred as Mr Dijakovic approached an intersection at which the traffic lights were green and an oncoming vehicle, driven by Mr Perez, made a right turn in front of him and Mr Dijakovic “T-boned” the turning vehicle. Mr Perez (by his CTP insurer) has admitted liability in respect of the accident. At the time of the accident Mr Dijakovic was…

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AGLC
Dijakovic v Perez [2015] NSWCA 174
Case
[2015] NSWCA 174
Decision Date

CaseChat Overview and Summary

The appeal concerned a claim for damages arising from a motor accident, brought by the plaintiff, Mr. Dijakovic, against the defendant, Mr. Perez. The primary judge in the District Court had refused the plaintiff leave to commence proceedings out of time, as required by section 109(3) of the *Motor Accidents Compensation Act 1999* (NSW), and had also concluded that the plaintiff had not established a "full and satisfactory" explanation for the delay in commencing proceedings, nor that the monetary threshold for such claims was likely to be met. The matter came before the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge had erred in finding that the plaintiff had failed to provide a "full and satisfactory" explanation for the delay in commencing proceedings, and whether the primary judge had erred in concluding that the monetary threshold for the claim was unlikely to be met. These determinations were crucial for the plaintiff to be granted leave to proceed with his damages claim under section 109(3) of the Act, which requires such leave if proceedings are not commenced within three years of the accident, as stipulated by section 66(2).

The Court of Appeal found that the primary judge had erred in both respects. Gleeson and Leeming JJA, with whom McCallum J agreed, held that the primary judge had misapplied the principles governing the grant of leave under section 109(3). The Court determined that the explanation for the delay was, in fact, "full and satisfactory" and that the primary judge had incorrectly assessed the likelihood of the monetary threshold being met. Consequently, the Court allowed the appeal, set aside the District Court's orders, and granted the plaintiff leave to commence proceedings. The plaintiff was also awarded costs.

Orders

Orders of the court

(1)Leave to appeal be granted.

(2)The appeal be allowed.

(3)The orders made by the District Court on 30 May 2014 be set aside.

(4)In lieu thereof:

(a)grant leave to the plaintiff pursuant to s 109 of the Motor Accidents Compensation Act 1999 (NSW) to commence the proceedings;

(b)the plaintiff’s cost of the notice of motion filed 14 March 2014 be the plaintiff’s costs in the proceedings.

(5)The respondent to pay the applicant’s/appellant’s costs of the application for leave to appeal and the appeal.

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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