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
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…
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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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.