Kechuol v Bravo - [2014] NSWDC 332

District Court

New South Wales

Medium Neutral Citation: Kechuol v Bravo [2014] NSWDC 332
Hearing dates: 12 September 2014
Date of orders: 12 September 2014
Decision date: 12 September 2014
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1)Grant leave to commence proceedings under s 109 of the Motor Accidents Compensation Act 1999.
(2)Dismiss the defendant’s notice of motion.
(3)Costs of the motions be costs in the proceedings.

Catchwords: MOTOR ACCIDENTS COMPENSATION – negligence – late claim – late commencement of proceedings – full and satisfactory explanation – relevant circumstances – applicant unfamiliar with English – unfamiliar with legal system – relied on her solicitor – delay relatively minor – need for threshold level of damages to be “likely” – “real chance” or “real prospect” – components of damage indicate real chance of satisfying threshold
Legislation Cited: Motor Accidents Compensation Act 1999, s 66, s 73, s 109
Cases Cited: Eades v Gunestepe [2012] NSWCA 204
Ly v Mukdassi [2013] NSWDC 257
Walker v Howard [2009] NSWCA 408
Category: Procedural and other rulings
Parties: Adhel Dau Kechuol (plaintiff)
Ricardo Luis Bravo (defendant)
Representation:
Counsel:
Mr J de Greenlaw (plaintiff)
Mr P Petrushnko (defendant)
Solicitors:
Gerard Malouf & Partners (plaintiff)
McInnes Wilson Lawyers(defendant)

File Number(s): 2014/100626
Publication restriction: None

Judgment

INTRODUCTION

The plaintiff, Adhel Kechuol, was a pedestrian injured by a motor vehicle on 1 September 2010. She was obliged under s 73 of the Motor Accidents Compensation Act 1999 to give notice of a claim within six months of the accident, but notice was given a little over one month late. Further, any action that she commenced was required by s 109 of the Motor Accidents Compensation Act 1999 to be commenced within three years of the accident or by 31 August 2013. These proceedings were commenced on 3 April 2014. The applications relate to these failures to give notice and to commence proceedings in time.

THE STATUTORY PROVISIONS

Ms Kechuol applied under s 109 for leave to commence proceedings and leave to file a statement of claim out of time. The defendant filed a notice of motion seeking that the statement of claim be dismissed under s 73(5) of the Motor Accidents Compensation Act 1999 for failing to comply with the six-month notice requirement and also for failure to comply with s 109. Both of these provisions raise the need for a full and satisfactory explanation for the delay. Section 73(7) provides that the Court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim within the six-month period, and s 109 precludes the Court from granting leave to commence proceedings unless, among other things, the claimant has provided a full and satisfactory explanation for the delay.
Section 66(2) of the Motor Accidents Compensation Act 1999 explains the meaning of a full and satisfactory explanation in the following terms:

“(2) In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with…

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 Kechuol v Bravo

Details

AGLC: Kechuol v Bravo [2014] NSWDC 332
Case: [2014] NSWDC 332
Decision Date: 12 September 2014

CaseChat Overview and Summary

Kechuol, the applicant, sought leave to commence proceedings against Bravo, the respondent, under section 109 of the Motor Accidents Compensation Act 1999, for injuries sustained in a motor accident. The primary dispute was whether the applicant's late commencement of proceedings could be excused due to her unfamiliarity with English and the legal system, and whether the applicant had a real chance of satisfying the threshold level of damages. The case was heard in the District Court of Queensland.

The legal issues before the court were whether the applicant had provided a full and satisfactory explanation for the delay in commencing proceedings, and whether the applicant had a real chance of satisfying the threshold level of damages. The court considered the relevant circumstances of the case, including the applicant's unfamiliarity with English and the legal system, and the fact that she had relied on her solicitor. The court also considered the need for the threshold level of damages to be "likely", and whether this meant a "real chance" or a "real prospect".

The court found that the applicant had provided a full and satisfactory explanation for the delay, as she was unfamiliar with English and the legal system, and had relied on her solicitor. The court also found that the delay was relatively minor, and that the components of damage indicated a real chance of satisfying the threshold. The court dismissed the respondent’s notice of motion and granted leave to commence proceedings. The costs of the motions were ordered to be costs in the proceedings.

The court's orders were to grant leave to commence proceedings under section 109 of the Motor Accidents Compensation Act 1999, dismiss the respondent’s notice of motion, and order that the costs of the motions be costs in the proceedings.

Orders

Orders of the court

(1)Grant leave to commence proceedings under s 109 of the Motor Accidents Compensation Act 1999.

(2)Dismiss the defendant’s notice of motion.

(3)Costs of the motions be costs in the proceedings.

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:	Kechuol v Bravo [2014] NSWDC 332
Hearing dates:	12 September 2014
Date of orders:	12 September 2014
Decision date:	12 September 2014
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)Grant leave to commence proceedings under s 109 of the Motor Accidents Compensation Act 1999. (2)Dismiss the defendant’s notice of motion. (3)Costs of the motions be costs in the proceedings.
Catchwords:	MOTOR ACCIDENTS COMPENSATION – negligence – late claim – late commencement of proceedings – full and satisfactory explanation – relevant circumstances – applicant unfamiliar with English – unfamiliar with legal system – relied on her solicitor – delay relatively minor – need for threshold level of damages to be “likely” – “real chance” or “real prospect” – components of damage indicate real chance of satisfying threshold
Legislation Cited:	Motor Accidents Compensation Act 1999, s 66, s 73, s 109
Cases Cited:	Eades v Gunestepe [2012] NSWCA 204 Ly v Mukdassi [2013] NSWDC 257 Walker v Howard [2009] NSWCA 408
Category:	Procedural and other rulings
Parties:	Adhel Dau Kechuol (plaintiff) Ricardo Luis Bravo (defendant)
Representation:	Counsel: Mr J de Greenlaw (plaintiff) Mr P Petrushnko (defendant) Solicitors: Gerard Malouf & Partners (plaintiff) McInnes Wilson Lawyers(defendant)
File Number(s):	2014/100626
Publication restriction:	None