Ellis v Reko Pty Limited

CITATION:	Ellis v Reko Pty Limited [2009] NSWDC 288
JUDGMENT DATE:	4 November 2009
JURISDICTION:	District Court
JUDGMENT OF:	Knox SC DCJ at 1
DECISION:	The Notice of Motion is dismissed. The plaintiff is to pay the defendant’s costs.
CATCHWORDS:	Limitations: s109 Motor Accidents Compensation Act 1999: Full and satisfactory explanation for delay: whether notification of Workers Compensation claim sufficient explanation by itself.
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Workers Compensation Act 1987
CASES CITED:	Brisbane South Regional Health Authority v Taylor [1996] HCA 25 (1996); 186 CLR 541 Holt v Wynter [2000] NSW CA 143; [2000] 49 NSWLR 128 Mancini v Thompson [2002] NSWCA 38 Laidlaw & Anor v Touma 2002 NSWCA 190 Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 Smith v Grant [2006] NSWCA 244 Figliuzzi v Yonan [2005] NSWCA 290 Sauer v Allianz Australia Insurance Ltd [2006] NSW CA 364
PARTIES:	Christopher Ellis Reko Pty Limited
FILE NUMBER(S):	2784/09
COUNSEL:	Plaintiff: Mr R Goodridge Defendant: Mr P Rickard
SOLICITORS:	Firths The Compensation Lawyers Goldbergs Solicitors

DISTRICT COURT OF NSW
CIVIL JURISDICTION
AT SYDNEY

4 November 2009

Judge BJ Knox SC

Christopher Ellis

v

Reko Pty Limited

Counsel

Plaintiff: Mr R Goodridge instructed by Firths – The Compensation Lawyers

Defendant: Mr P Rickard instructed by Goldbergs Solicitors.

Judgment

Proceedings

1. By Notice of Motion dated 26 June, 2009, Christopher Ellis (“the applicant”) has sought leave to commence proceedings against the defendant pursuant to the provisions of s109(3)(1)(a) of the Motor Accidents Compensation Act 1999 (‘the Act’). The defendant opposes the grant of leave.

2. Under s109 of the Act an applicant is disentitled to commence proceedings in respect of a claim more than 3 years after the date of the relevant motor accident except without leave.

Time period

3. Here the relevant accident occurred on 3 March 2003. The relevant limitation period expired on 4 March 2006.

Issue

4. The issue for determination on this motion is whether the applicant has provided a full and satisfactory explanation to the court for the delay. Mr Rickard submits that there is no – let alone any - full and satisfactory explanation of the delay.

5. Leave must not be granted on this motion unless the applicant provides a full and satisfactory explanation of the delay and that the total damages likely to be awarded are not less than 25% of the maximum amount that might be awarded. That latter aspect has not been the subject of either evidence or submissions in this hearing. The parties submit that the first limb of s 109(3) (a) is the only relevant matter for determination and that if I am so satisfied then the second limb would also be satisfied on the remaining evidence.

Background

6. The applicant was born 12 January 1971 and is currently aged 38. On 3 March 2003 he was employed as a storeman in the defendant’s premises at Lisarow in New South Wales. He was required to drive a forklift vehicle in the course…