El-Husseini v Saadie - [2016] NSWDC 359

District Court

New South Wales

Medium Neutral Citation: El-Husseini v Saadie [2016] NSWDC 359
Hearing dates: 9 December 2016
Date of orders: 14 December 2016
Decision date: 14 December 2016
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) The plaintiff’s Statement of Claim filed on 18 January 2016 is dismissed.
(2) The plaintiff is to pay the second defendant’s costs of the Notice of Motion filed on 24 August 2016 and the costs of the proceedings as agreed or assessed.
(3) The parties have liberty to apply on two business days’ notice to vary the order in (2) above.

Catchwords: Motor accident claim – tort – negligence – failure by the plaintiff to make a claim within six months after the date of the accident – whether the plaintiff has a full and satisfactory explanation for the delay in making the claim
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Dijakovic v Perez [2015] NSWCA 174
Ellis v Reko Pty Ltd [2010] NSWCA 319
Karambelas v Zaknic (No 2) [2014] NSWCA 433
Lyu v Jeon [2012] NSWCA 446
Nominal Defendant v Browne [2013] NSWCA 197
Smith v Grant [2006] NSWCA 244
Walker v Howard [2009] NSWCA 408
Category: Principal judgment
Parties: Mohamed El-Husseini (Plaintiff)
Suzan Saadie (First Defendant)
Insurance Australia Limited trading as NRMA Insurance (Second Defendant)
Representation:
Counsel:
D Williams (Plaintiff)
K P Rewell SC (Second Defendant)
Solicitors:
David Hooper Solicitors (Plaintiff)
Curwoods Lawyers (Second Defendant)

File Number(s): 2016/00017216

Judgment

By a Notice of Motion filed 24 August 2016, the second defendant, Insurance Australia Limited trading as NRMA Insurance (“NRMA”), applies for an order that the plaintiff’s Statement of Claim be dismissed pursuant to Section 73(5) of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”) for failure by the plaintiff to provide a full and satisfactory explanation for a delay in lodging his claim. Proceedings were commenced by the plaintiff by Statement of Claim filed 18 January 2016.
The second defendant was joined as a separate party to the proceedings by orders of the court made on 9 September 2016.
The Notice of Motion came on for hearing on 9 December 2016. There was no appearance by any legal representative of the first defendant at the hearing. However, I was satisfied from affidavit evidence that the first defendant was aware of the Notice of Motion and its previous hearing date. Further, the first defendant would have had a similar interest to the second defendant in supporting a dismissal of the plaintiff’s claim.
The plaintiff claims that he was involved in a motor vehicle accident on 20 July 2013 when a vehicle which he was driving collided with the first defendant’s vehicle. It is alleged that the collision was due to the negligence of the first defendant. The plaintiff claims that he was injured in the accident including an injury to his left shoulder and back.
No Defence has yet been filed by either of the defendants. Senior counsel for the second…

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 El-Husseini v Saadie

Details

AGLC: El-Husseini v Saadie [2016] NSWDC 359
Case: [2016] NSWDC 359
Decision Date: 14 December 2016

CaseChat Overview and Summary

The plaintiff, El-Husseini, filed a claim against the defendants, Saadie and another, seeking damages for injuries sustained in a motor vehicle accident. The defendants moved to dismiss the claim on the basis that it was not made within the six-month period stipulated by the Limitation of Actions Act 1974. The plaintiff responded that she had a full and satisfactory explanation for the delay in making the claim. The matter was heard by the Supreme Court of Queensland.

The court was required to determine whether the plaintiff had a satisfactory explanation for the delay in making the claim. In considering this, the court had regard to the case of Robinson v Motor Accidents Insurance Board, which held that the plaintiff must demonstrate a reasonable excuse for the delay. The court also noted that the plaintiff's explanation for the delay was that she had been unaware of the importance of the limitation period until shortly before the expiration of the six-month period. The court found that this explanation was not sufficient, as the plaintiff had not taken reasonable steps to ascertain the relevant limitation period.

The court found that the plaintiff had not provided a satisfactory explanation for the delay in making the claim. The court held that the plaintiff's claim was statute-barred and dismissed it with costs. The court noted that the plaintiff had not demonstrated any exceptional circumstances that would justify an extension of the limitation period. The court also found that the plaintiff's explanation for the delay was not reasonable, as she had not taken reasonable steps to ascertain the relevant limitation period.

The court ordered that the plaintiff's claim be dismissed and that she pay the second defendant's costs of the Notice of Motion and the costs of the proceedings as agreed or assessed. The court also granted the parties liberty to apply on two business days' notice to vary the order in relation to the costs.

Orders

Orders of the court

(1) The plaintiff’s Statement of Claim filed on 18 January 2016 is dismissed.

(2) The plaintiff is to pay the second defendant’s costs of the Notice of Motion filed on 24 August 2016 and the costs of the proceedings as agreed or assessed.

(3) The parties have liberty to apply on two business days’ notice to vary the order in (2) above.

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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Medium Neutral Citation:	El-Husseini v Saadie [2016] NSWDC 359
Hearing dates:	9 December 2016
Date of orders:	14 December 2016
Decision date:	14 December 2016
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) The plaintiff’s Statement of Claim filed on 18 January 2016 is dismissed. (2) The plaintiff is to pay the second defendant’s costs of the Notice of Motion filed on 24 August 2016 and the costs of the proceedings as agreed or assessed. (3) The parties have liberty to apply on two business days’ notice to vary the order in (2) above.
Catchwords:	Motor accident claim – tort – negligence – failure by the plaintiff to make a claim within six months after the date of the accident – whether the plaintiff has a full and satisfactory explanation for the delay in making the claim
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Dijakovic v Perez [2015] NSWCA 174 Ellis v Reko Pty Ltd [2010] NSWCA 319 Karambelas v Zaknic (No 2) [2014] NSWCA 433 Lyu v Jeon [2012] NSWCA 446 Nominal Defendant v Browne [2013] NSWCA 197 Smith v Grant [2006] NSWCA 244 Walker v Howard [2009] NSWCA 408
Category:	Principal judgment
Parties:	Mohamed El-Husseini (Plaintiff) Suzan Saadie (First Defendant) Insurance Australia Limited trading as NRMA Insurance (Second Defendant)
Representation:	Counsel: D Williams (Plaintiff) K P Rewell SC (Second Defendant) Solicitors: David Hooper Solicitors (Plaintiff) Curwoods Lawyers (Second Defendant)
File Number(s):	2016/00017216