Dijakovic v Perez

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.