Gudelj v Tihic - [2012] NSWDC 87

District Court

New South Wales

Medium Neutral Citation: Gudelj v Tihic [2012] NSWDC 87
Hearing dates: 07/06/2012
Decision date: 18 June 2012
Jurisdiction: Civil
Before: Levy SC DCJ
Decision:
1.The Notice of Motion filed by the defendant on 20 October 2011 seeking dismissal of the plaintiff's proceedings is dismissed;
2.The defendant is to pay the plaintiff's costs of the dismissed motion;
3.Pursuant to s 109 of the Motor Accidents Compensation Act 1999, the plaintiff is granted leave to commence these proceedings, with effect from 27 September 2011;
4.Pursuant to s 73 of the Motor Accidents Compensation Act 1999, declaration that the plaintiff has provided a full and satisfactory explanation for the delay in making the claim comprising these proceedings;
5.Each party is to pay their own costs of the Notice of Motion filed on 7 June 2012 by which orders were sought pursuant to s 73 and s 109 of the Motor Accidents Compensation Act 1999.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: LIMITATION OF ACTIONS - consideration of s 73 and s 109(3) of Motor Accidents Compensation Act 1999 - insurer's application for dismissal of plaintiff's claim - whether plaintiff has provided full and satisfactory explanation for delay - whether relevant prejudice arises
Legislation Cited: Motor Accidents Compensation Act 1999, s 66, s 72, s 73, s 81, s 91, s 92, s 94, s 96, s 108, s 109
Cases Cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Diaz v Truong [2002] NSWCA 265
Ellis v Reko Pty Limited [2010] NSWCA 319
Figliuzzi v Yonan [2005] NSWCA 29
Gudelj v MAA [2009] NSWSC 436
Gudelj v MAA [2011] NSWCA 158
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643
Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735
Taylor v Chown [2010] NSWDC 63
Walker v Howard [2009] NSWCA 408
Category: Procedural and other rulings
Parties: Darko Gudelj (Plaintiff/respondent)
Vanessa Tihic (Defendant/applicant)
Representation: Mr E Romaniuk (Plaintiff/respondent)
Mr D Ronzani (Defendant/applicant)
Slater & Gordon (Plaintiff/respondent)
Curwoods (Defendant/applicant)

File Number(s): 2011/310378
Publication restriction: None

Judgment

Table of Contents

Notices of motion (2)

[1] - [4]

Facts

[5] - [44]

Procedural history

[45] - [64]

Legislation

[65] - [67]

Issues

[68] - [70]

Array of evidence

[71] - [73]

Relevant periods of delay

[74] - [75]

Explanation proffered by plaintiff

[76] - [84]

Whether the explanation is full and satisfactory

[85] - [112]

Whether prejudice relevantly arises

[113] - [116]

Disposition

[117]

Costs

[118] - [123]

Orders

[124]

Notices of motion (2)

These…

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 Gudelj v Tihic

Details

AGLC: Gudelj v Tihic [2012] NSWDC 87
Case: [2012] NSWDC 87
Decision Date: 18 June 2012

CaseChat Overview and Summary

The defendant, Tihic, applied for the dismissal of the plaintiff Gudelj's motor vehicle accident compensation claim on the basis that the claim was not made within the statutory limitation period. Gudelj filed the claim beyond the limitation period, and Tihic argued that Gudelj had not provided a satisfactory explanation for the delay or demonstrated that the delay would not result in prejudice to Tihic. The case was heard in the District Court of New South Wales. The legal issues before the court involved the interpretation and application of sections 73 and 109(3) of the Motor Accidents Compensation Act 1999. The court had to determine whether Gudelj provided a full and satisfactory explanation for the delay and whether the delay would result in prejudice to Tihic.

The court found that Gudelj had provided a satisfactory explanation for the delay in making the claim, as required by section 73 of the Motor Accidents Compensation Act 1999. The explanation provided was considered full and satisfactory because Gudelj had experienced a period of unconsciousness following the accident, which prevented him from instituting the proceedings within the statutory time frame. The court also found that the delay would not result in prejudice to Tihic, as required by section 109(3) of the Motor Accidents Compensation Act 1999. The court noted that Tihic had not demonstrated any prejudice arising from the delay, and that there were no exceptional circumstances that would warrant the dismissal of the claim.

The court dismissed the defendant's application for dismissal of the plaintiff's claim. The court granted Gudelj leave to commence the proceedings, with effect from 27 September 2011, pursuant to section 109 of the Motor Accidents Compensation Act 1999. The court also declared that Gudelj had provided a full and satisfactory explanation for the delay in making the claim, pursuant to section 73 of the Motor Accidents Compensation Act 1999. The court ordered that each party was to pay their own costs of the Notice of Motion filed on 7 June 2012 by which orders were sought pursuant to sections 73 and 109 of the Motor Accidents Compensation Act 1999. The defendant was also ordered to pay the plaintiff's costs of the dismissed motion.

Orders

Orders of the court

1.The Notice of Motion filed by the defendant on 20 October 2011 seeking dismissal of the plaintiff's proceedings is dismissed;

2.The defendant is to pay the plaintiff's costs of the dismissed motion;

3.Pursuant to s 109 of the Motor Accidents Compensation Act 1999, the plaintiff is granted leave to commence these proceedings, with effect from 27 September 2011;

4.Pursuant to s 73 of the Motor Accidents Compensation Act 1999, declaration that the plaintiff has provided a full and satisfactory explanation for the delay in making the claim comprising these proceedings;

5.Each party is to pay their own costs of the Notice of Motion filed on 7 June 2012 by which orders were sought pursuant to s 73 and s 109 of the Motor Accidents Compensation Act 1999.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Gudelj v Tihic [2012] NSWDC 87
Hearing dates:	07/06/2012
Decision date:	18 June 2012
Jurisdiction:	Civil
Before:	Levy SC DCJ
Decision:	1.The Notice of Motion filed by the defendant on 20 October 2011 seeking dismissal of the plaintiff's proceedings is dismissed; 2.The defendant is to pay the plaintiff's costs of the dismissed motion; 3.Pursuant to s 109 of the Motor Accidents Compensation Act 1999, the plaintiff is granted leave to commence these proceedings, with effect from 27 September 2011; 4.Pursuant to s 73 of the Motor Accidents Compensation Act 1999, declaration that the plaintiff has provided a full and satisfactory explanation for the delay in making the claim comprising these proceedings; 5.Each party is to pay their own costs of the Notice of Motion filed on 7 June 2012 by which orders were sought pursuant to s 73 and s 109 of the Motor Accidents Compensation Act 1999. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	LIMITATION OF ACTIONS - consideration of s 73 and s 109(3) of Motor Accidents Compensation Act 1999 - insurer's application for dismissal of plaintiff's claim - whether plaintiff has provided full and satisfactory explanation for delay - whether relevant prejudice arises
Legislation Cited:	Motor Accidents Compensation Act 1999, s 66, s 72, s 73, s 81, s 91, s 92, s 94, s 96, s 108, s 109
Cases Cited:	Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Diaz v Truong [2002] NSWCA 265 Ellis v Reko Pty Limited [2010] NSWCA 319 Figliuzzi v Yonan [2005] NSWCA 29 Gudelj v MAA [2009] NSWSC 436 Gudelj v MAA [2011] NSWCA 158 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735 Taylor v Chown [2010] NSWDC 63 Walker v Howard [2009] NSWCA 408
Category:	Procedural and other rulings
Parties:	Darko Gudelj (Plaintiff/respondent) Vanessa Tihic (Defendant/applicant)
Representation:	Mr E Romaniuk (Plaintiff/respondent) Mr D Ronzani (Defendant/applicant) Slater & Gordon (Plaintiff/respondent) Curwoods (Defendant/applicant)
File Number(s):	2011/310378
Publication restriction:	None

Notices of motion (2)	[1] - [4]
Facts	[5] - [44]
Procedural history	[45] - [64]
Legislation	[65] - [67]
Issues	[68] - [70]
Array of evidence	[71] - [73]
Relevant periods of delay	[74] - [75]
Explanation proffered by plaintiff	[76] - [84]
Whether the explanation is full and satisfactory	[85] - [112]
Whether prejudice relevantly arises	[113] - [116]
Disposition	[117]
Costs	[118] - [123]
Orders	[124]