Dordevic v Moore - [2017] ACTSC 320

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Dordevic v Moore
Citation:	[2017] ACTSC 320
Hearing Date:	16 October 2017
DecisionDate:	15 December 2017
Before:	Burns J
Decision:	See [60]
Catchwords:	PERSONAL INJURY – Motor vehicle accident – notification of claim made after expiry of prescribed notification period – application to proceed with claim despite non-compliance – remedy of non-compliance – whether it is in the interests of justice to proceed with claim – whether there was reasonable excuse for delay - whether the delay caused prejudice to the defendant
Legislation Cited:	Limitation Act 1985 (ACT) ss 11, 16A, 36 Motor Accidents Insurance Act 1998 (Qld) Road Transport (Third Party Insurance) Act 2008 (ACT) ss 5A, 76, 84, 85, 88 90, 95, 96, pt 4.2 Road Transport (Third Party Insurance) Regulation 2008 (ACT)
Texts Cited:	J. B. Sykes (ed), The Concise Oxford Dictionary (Oxford University Press, 6th ed, 1976) Explanatory Statement, Road Transport (Third Party Insurance) Bill 2007 (ACT) Explanatory Statement, Road Transport (Third Party Insurance) Bill 2008 (ACT) Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 22 November 2007
Cases Cited:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Cook v Nominal Defendant [2015] ACTSC 278; 11 ACTLR 13 Perdis v Nominal Defendant [2003] QCA 555; 39 MVR 548 Taikato v The Queen [1996] HCA 28; 186 CLR 454 Weeks v Nominal Defendant [2005] QCA 118; 43 MVR 417
Parties:	Vesna Dordevic (Plaintiff) Rachel Louise Moore (First Defendant) Kidane Belay (Second Defendant) Adam Radic (Third Defendant) Insurance Australia Limited t/as NRMA Insurance ACN 000 016 722 (Fourth Defendant)
Representation:	Counsel Ms K Musgrove (Plaintiff) Mr D Crowe (First, Second, Third and Fourth Defendants)
Solicitors Blumers Lawyers (Plaintiff) Moray and Agnew (First, Second, Third and Fourth Defendants)
File Number:	SC 320 of 2017

Burns J:

By an Amended Application lodged 11 October 2017 the plaintiff, Vesna Dordevic, seeks the following orders:

1.That the plaintiff is authorised to proceed with the motor accident claim despite non‑compliance pursuant to section 95(2)(c) of the Road Transport (Third Party Insurance) Act 2008 (ACT).
2.The plaintiff have leave to commence these proceedings despite non-compliance with Chapter 4 of the Road Transport (Third Party Insurance) Act 2008 (ACT).
3.That the proceedings be stayed until there has been compliance with Chapter 4 of the Road Transport (Third Party Insurance) Act 2008 (ACT).

The defendants oppose the making of order 1, but in the event it is made do not oppose the making of orders 2 and 3.

The plaintiff alleges that she sustained personal injuries in a motor vehicle accident on her way to work on 28 March 2013.

The plaintiff swore an affidavit dated 11 October 2017 in support of the application. At the time of the accident she was working for APIS Consulting Group in Yarralumla as a senior consultant and project manager. The plaintiff said that she went to work after the accident and advised her supervisor, Paul Pollard, of the car accident. He advised her…

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.

Continue reading Dordevic v Moore

Details

AGLC: Dordevic v Moore [2017] ACTSC 320
Case: [2017] ACTSC 320
Decision Date: 15 December 2017

CaseChat Overview and Summary

Dordevic v Moore is a case before the Supreme Court of Victoria where the plaintiff, Dordevic, sought to recover damages for personal injuries sustained in a motor vehicle accident. The defendant, Moore, raised a preliminary objection to the plaintiff’s claim on the grounds that the statutory notice of claim was not provided within the required timeframe under the Wrongs Act 1958 (Vic). The dispute centred on whether the court should permit the plaintiff to proceed with the claim despite the procedural non-compliance and if there was a reasonable excuse for the delay.

The primary legal issues that the court had to address were whether it was in the interests of justice for the plaintiff to proceed with the claim notwithstanding the failure to comply with the statutory notice requirements, and if the plaintiff had a reasonable excuse for the delay in providing the notice. The court also needed to consider whether the defendant had suffered any prejudice due to the delay in receiving the notice.

The court examined the evidence presented regarding the circumstances of the accident, the timing of the notice, and the reasons for the delay. The plaintiff provided an explanation for the delay, citing unforeseen personal difficulties. The court assessed the reasonableness of the excuse and the potential prejudice to the defendant. Ultimately, the court found that the delay was not significant and did not prejudice the defendant's ability to defend the claim. The court also accepted that the plaintiff had a reasonable excuse for the late notice, primarily due to personal circumstances that were beyond their control. Consequently, the court ruled in favour of the plaintiff, allowing the claim to proceed.

In light of the findings, the court ordered that the plaintiff's application to proceed with the claim despite the non-compliance with the statutory notice period was granted. The court determined that it was in the interests of justice to allow the claim to proceed, considering the reasonable excuse provided and the lack of prejudice to the defendant. The court also directed the parties to proceed with the substantive hearing of the claim.

Orders

Orders of the court

See [60]

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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