Hoppe v Holmes

[2007] NSWDC 198

CITATION:	HOPPE v HOLMES [2007] NSWDC 198
HEARING DATE(S):	4 October 2007
EX TEMPORE JUDGMENT DATE:	5 October 2007
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. I grant leave to the applicant to commence proceedings against the respondent pursuant to s 109 of the Motor Accidents Compensation Act 1999 ; 2.The statement of claim is to be filed and served by not later than 4pm on 26 October 2007; 3.Costs of the motion are reserved; 4.The exhibits are returned.
CATCHWORDS:	Limitations - Full and satisfactory explanation - Prejudice
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Transport Act 1986 s 42(2)(e) (Vic)
CASES CITED:	Holt v Wynter (2000) 49 NSWLR 128 Itek Graphix P/Ltd v Elliott (2002) 54 NSWLR 207
PARTIES:	Rhianna Lea HOPPE Jonathon HOLMES
FILE NUMBER(S):	Newcastle Plaint 176/07
COUNSEL:	M F McDermott - Applicant J B Turnbull - Respondent
SOLICITORS:	Rankin Nathan Lawyers - Applicant Holman Webb Lawyers - Respondent

JUDGMENT

1 Rhianna Lea Hoppe was very seriously injured in a motor vehicle accident on 22 October 2000. Her injuries included orthopaedic injuries and brain damage. At the time she was seventeen years old.

2 She has not commenced proceedings against the defendant and she seeks the leave of the court to do so in accordance with s 109 of the Motor Accidents Compensation Act 1999. The vehicle involved in the accident was registered in Victoria and the Transport Accident Commission of Victoria became involved in processing the claim on behalf of the respondent driver.

3 The application for leave to commence proceedings is resisted by the respondent who argued that the applicant had not provided a full and satisfactory explanation for her delay and that it would be prejudiced if proceedings were commenced at this stage. I also need to consider whether it would be fair and reasonable to grant the leave sought.

4 There was affidavit evidence of the applicant and her mother and her current solicitor. None of the deponents were required for cross-examination and therefore their evidence has been accepted.

Full and satisfactory explanation

5 S 66 (2) of the Motor Accidents Compensation Act 1999 requires that the explanation be a full account from the date of the accident to the date of the explanation and that a reasonable person in the applicant’s position would have been justified in experiencing the delay that has occurred in this case. In respect of the quality of the explanation, the respondent argued that there was no evidence of the initial solicitor to explain why he apparently decided to pursue the applicant’s claim under the Victorian Transport Accident Act, rather than exercising the applicant’s rights in New South Wales. It was accepted by the respondent that the applicant ought not to be held responsible for the conduct of her initial solicitor but it was argued that an explanation from the solicitor remained necessary.

6 There was no evidence in the materials before me that the solicitor did indeed make a decision to pursue the plaintiff’s…