Hawchar v Marshall - [2020] NSWDC 719

District Court

New South Wales

Medium Neutral Citation: Hawchar v Marshall [2020] NSWDC 719
Hearing dates: 12 November 2020
Date of orders: 20 November 2020
Decision date: 20 November 2020
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1) Notice of Motion filed on 21 July 2020 is dismissed.
(2) Order the plaintiff to pay the defendant’s costs of the Motion.

Catchwords:
LIMITATION OF ACTIONS – motor vehicle accident claim – application by plaintiff for leave to commence proceedings outside the limitation period under the Motor Accidents Compensation Act – whether a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay – a full and satisfactory explanation for delay not provided due to gaps in explanation
MOTOR ACCIDENTS – whether the total damages likely to be awarded if the claim succeeds are over the monetary threshold in s 109(3)(b) of the Motor Accidents Compensation Act

Legislation Cited:
Motor Accidents Act 1988 (NSW)
Motor Accidents Compensation Act 1999 (NSW), ss 66, 92, 109

Cases Cited:
Karambelas v Zaknic (No. 2) [2014] NSWCA 433
Walker v Howard [2009] NSWCA 408; 78 NSWLR 161

Category: Procedural and other rulings
Parties: Samir Youssef Hawchar (Plaintiff)
Timothy Peter Marshall (Defendant)
Representation:
Counsel:
G Bateman (Plaintiff)
G Reynolds (Defendant)
Solicitors:
State Law Group (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2020/213648

Judgment

Introduction

The plaintiff was a passenger in a motor vehicle involved in an accident on 1 February 2017. He filed a Statement of Claim in this court on 21 July 2020 seeking damages for injuries and loss.
Section 109 of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”) imposes a three year limitation period, after the date of the motor accident, for court proceedings to be taken. The three year period in this case expired on 1 February 2020, so the plaintiff’s Statement of Claim was filed more than five months late. The plaintiff now requires the leave of the court to commence his proceedings.
By a Notice of Motion filed on 21 July 2020 the plaintiff seeks that leave.

The Law

Section 109 of the Act provides:

“109 TIME LIMITATIONS ON COMMENCEMENT OF COURT PROCEEDINGS
(1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:
(a) the date of the motor accident to which the claim relates, or
(b) if the claim is made in respect of the death of a person--the date of death,

except with the leave of the court in which the proceedings are to be taken.
(2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued.
(3) The leave of the court must not be granted unless:
(a) the claimant provides a full and satisfactory explanation to the court for the delay, and
(b) the total damages of all…

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 Hawchar v Marshall

Details

AGLC: Hawchar v Marshall [2020] NSWDC 719
Case: [2020] NSWDC 719
Decision Date: 20 November 2020

CaseChat Overview and Summary

Hawchar, the plaintiff, sought leave to commence a motor vehicle accident claim against Marshall, the defendant, outside the limitation period as prescribed under the Motor Accidents Compensation Act. The plaintiff's application was dismissed by the court, which held that the plaintiff had not provided a full and satisfactory explanation for the delay in bringing the proceedings, specifically citing gaps in the explanation that left a reasonable person in the plaintiff’s position unjustified in experiencing such a delay.

The central legal issue before the court was whether the plaintiff could be excused from the statutory limitation period due to a reasonable explanation for the delay, and if the total damages likely to be awarded, if the claim were to succeed, exceeded the monetary threshold outlined in section 109(3)(b) of the Motor Accidents Compensation Act. The court examined the plaintiff's explanation for the delay and found it insufficient due to its incomplete nature. Additionally, the court assessed whether the potential damages met the monetary threshold for an extended limitation period, although it did not find it necessary to fully explore this aspect due to the resolution of the primary issue.

The court's reasoning was grounded in the statutory requirements for excusing a delay in commencing proceedings. It was established that the plaintiff had not provided a satisfactory explanation for the delay, with particular emphasis on the gaps in the explanation provided. Consequently, the plaintiff was not entitled to an extension of the limitation period. The court also noted that the plaintiff did not establish that the total damages likely to be awarded would exceed the monetary threshold, but this was not a decisive factor in the outcome.

The orders made by the court were that the notice of motion filed by the plaintiff on 21 July 2020 was dismissed. Additionally, the plaintiff was ordered to pay the defendant's costs of the motion. This decision underscores the necessity for a complete and coherent explanation for any delay in bringing a claim, particularly in the context of statutory limitation periods.

Orders

Orders of the court

(1) Notice of Motion filed on 21 July 2020 is dismissed.

(2) Order the plaintiff to pay the defendant’s costs of the Motion.

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:	Hawchar v Marshall [2020] NSWDC 719
Hearing dates:	12 November 2020
Date of orders:	20 November 2020
Decision date:	20 November 2020
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Notice of Motion filed on 21 July 2020 is dismissed. (2) Order the plaintiff to pay the defendant’s costs of the Motion.
Catchwords:	LIMITATION OF ACTIONS – motor vehicle accident claim – application by plaintiff for leave to commence proceedings outside the limitation period under the Motor Accidents Compensation Act – whether a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay – a full and satisfactory explanation for delay not provided due to gaps in explanation MOTOR ACCIDENTS – whether the total damages likely to be awarded if the claim succeeds are over the monetary threshold in s 109(3)(b) of the Motor Accidents Compensation Act
Legislation Cited:	Motor Accidents Act 1988 (NSW) Motor Accidents Compensation Act 1999 (NSW), ss 66, 92, 109
Cases Cited:	Karambelas v Zaknic (No. 2) [2014] NSWCA 433 Walker v Howard [2009] NSWCA 408; 78 NSWLR 161
Category:	Procedural and other rulings
Parties:	Samir Youssef Hawchar (Plaintiff) Timothy Peter Marshall (Defendant)
Representation:	Counsel: G Bateman (Plaintiff) G Reynolds (Defendant) Solicitors: State Law Group (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2020/213648