Ibrahim v Frity - [2023] NSWDC 169

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Ibrahim v Frity [2023] NSWDC 169
Hearing dates: 24 May 2023
Date of orders: 30 May 2023
Decision date: 30 May 2023
Jurisdiction: Civil
Before: Ainslie-Wallace ADCJ
Decision:
See orders at paragraph [27]

Catchwords:
PRACTICE AND PROCEDURE – application by plaintiff to adjourn motion for leave to commence proceedings to be heard with the substantive matter – defendant’s application for dismissal of the proceedings

Legislation Cited:
Motor Accidents Compensation Act 1999 (NSW), s 109, s 134
Motor Accidents Compensation (Determination of Loss) Amendment Order 2015

Cases Cited:
Dijakovic v Perez [2015] NSWCA 174
Eades v Gunestepe [2012] NSWCA 204
Harika v Tupaea [2003] NSWCA 332; 58 NSWLR 675
Hooker v Gilling [2007] NSWCA 99
Sinclair v Darwich [2010] NSWCA 195
State of NSW v Gillett [2012] NSWCA 83
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514

Category: Procedural rulings
Parties: Plaintiff: Micheal Ibrahim
Defendant: Christo Salah Frity
Representation:
Counsel:
Plaintiff: Mr K Andrews
Defendant: Mr M Nesbeth
Solicitors:
Plaintiff: AJB Stevens
Defendant: Sparke Helmore Lawyers

File Number(s): 2022/320180
Publication restriction: None

Judgment

On 28 May 2016 the plaintiff’s car having stopped at a pedestrian crossing was hit in the rear by a car driven by the defendant. The accident was reported to the police on 25 July 2016. On 31 August 2016 an insurance claim form was lodged with QBE Insurance which confirmed receipt of the claim on 6 October 2016.
On 18 January 2018 the insurer accepted liability for the accident.
On 23 November 2020 the insurer made application for assessment by the Personal Injury Commission (“PIC”). Three preliminary conferences between the parties and the PIC took place and an assessment hearing was conducted on 26 November 2021. The certificate of determination of that hearing was produced on 7 October 2022. The award was rejected by the plaintiff.
The plaintiff commenced proceedings on 26 October 2020 when a statement of claim was filed in the District Court. A statement of particulars was filed on 25 November 2022.
On 20 December 2022 the defendant filed a notice of motion seeking an order that the proceedings be dismissed pursuant to s 109 of the Motor Accidents Compensation Act 1999 (“the Act”).
On 7 March 2023 the plaintiff filed a notice of motion in the following terms:

The defendant’s notice of motion filed on 20 December 2022 be stood over to be heard with the substantive proceedings with evidence in one being evidence in the other.

The plaintiff be granted leave pursuant to s 109 of the Act to extend time for bringing these proceedings.

Order 2 be stood over to be heard at the time of the substantive proceedings.

The defendant opposed the orders sought by the plaintiff.
During the hearing of the motion, it was agreed that the plaintiff’s application to adjourn both motions to the hearing of the substantive proceedings be heard first. It was also foreshadowed that if that application was unsuccessful, the plaintiff…

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 Ibrahim v Frity

Details

AGLC: Ibrahim v Frity [2023] NSWDC 169
Case: [2023] NSWDC 169
Decision Date: 30 May 2023

CaseChat Overview and Summary

The case of Ibrahim v Frity involved the plaintiff seeking an adjournment of a motion for leave to commence proceedings, which was to be heard concurrently with the substantive matter. The defendant opposed the adjournment and also sought dismissal of the proceedings on the grounds of delay and an alleged lack of prospects of success. The case was heard in the Federal Circuit Court of Australia.

The legal issues before the court included whether the plaintiff's application for an adjournment should be granted and whether the defendant's application to dismiss the proceedings should be upheld. The court had to consider the principles of procedural fairness, the relevance of delay, and the prospects of success of the plaintiff's claims.

The court ruled that the plaintiff's application for an adjournment should be dismissed. It found that the plaintiff had not provided sufficient justification for the adjournment, and there was no evidence that the adjournment would result in a fairer hearing. Regarding the defendant's application to dismiss the proceedings, the court held that the delay in bringing the proceedings did not necessarily warrant dismissal. However, the court found that the plaintiff had an inadequate prospect of success on the merits, leading to the dismissal of the proceedings. The court emphasised the need for a plaintiff to bring their claims with reasonable promptness and the importance of the merits of the case.

The orders made by the court included the dismissal of the plaintiff's application for an adjournment and the dismissal of the proceedings on the basis of an inadequate prospect of success. The court did not grant the defendant's costs application.

Orders

Orders of the court

See orders at paragraph [27]

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:	Ibrahim v Frity [2023] NSWDC 169
Hearing dates:	24 May 2023
Date of orders:	30 May 2023
Decision date:	30 May 2023
Jurisdiction:	Civil
Before:	Ainslie-Wallace ADCJ
Decision:	See orders at paragraph [27]
Catchwords:	PRACTICE AND PROCEDURE – application by plaintiff to adjourn motion for leave to commence proceedings to be heard with the substantive matter – defendant’s application for dismissal of the proceedings
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), s 109, s 134 Motor Accidents Compensation (Determination of Loss) Amendment Order 2015
Cases Cited:	Dijakovic v Perez [2015] NSWCA 174 Eades v Gunestepe [2012] NSWCA 204 Harika v Tupaea [2003] NSWCA 332; 58 NSWLR 675 Hooker v Gilling [2007] NSWCA 99 Sinclair v Darwich [2010] NSWCA 195 State of NSW v Gillett [2012] NSWCA 83 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Category:	Procedural rulings
Parties:	Plaintiff: Micheal Ibrahim Defendant: Christo Salah Frity
Representation:	Counsel: Plaintiff: Mr K Andrews Defendant: Mr M Nesbeth Solicitors: Plaintiff: AJB Stevens Defendant: Sparke Helmore Lawyers
File Number(s):	2022/320180
Publication restriction:	None