Keen v Nominal Defendant - [2011] NSWDC 173

District Court

New South Wales

Medium Neutral Citation: Keen v Nominal Defendant [2011] NSWDC 173
Hearing dates: 27 October and 4 November 2011
Decision date: 10 November 2011
Jurisdiction: Civil
Before: Judge Peter Johnstone
Decision:
Plaintiff's motion allowed
Motion of second proposed defendant dismissed

Catchwords: TORT - motor accident - failure to make a claim within 6 months - whether the plaintiff provided a full and satisfactory explanation for the delay
Legislation Cited: Motor Accidents Compensation Act 1999
Cases Cited: Ellis v Reko Limited [2010] NSWCA 319
Walker v Howard [2009] NSWCA 408
Category: Interlocutory applications
Parties: Wayne Barry Robert Keen (Plaintiff)
Nominal Defendant (First Defendant)
Kerry Robert Bullen (Proposed Second Defendant)
Representation: Mr A Campbell of counsel (Plaintiff)
Mr Hickey (First Defendant)
Mr J Gracie of counsel (Proposed Second Defendant)
Benjamin & Robinson (Plaintiff)
Curwoods Lawyers (First Defendant)
Rankin Nathan Lawyers (Proposed Second Defendant)

File Number(s): 2009/338517
Publication restriction: None

REASONS FOR Judgment

The plaintiff was injured in a motor accident on 23 December 2008. He commenced these proceedings against the Nominal Defendant on 10 December 2009 , alleging that the accident was caused by the driver of an unidentified vehicle.

A year and a half later, on 30 June 2011, the plaintiff filed a motion seeking leave to file an Amended Statement of Claim joining Mr Bullen as a second defendant to the proceedings.

The proposed second defendant opposes the plaintiff's motion. He filed a counter motion on 31 August 2011 seeking dismissal of the plaintiff's motion. He says that the plaintiff is not entitled to commence or maintain proceedings against him because the plaintiff did not give notice of any claim against him within 6 months of the motor accident, and has not provided a full and satisfactory explanation for that delay: s 72 and s 73 of the Motor Accidents Compensation Act 1999 (the MAC Act) .

The issues for determination

A claim in respect of injury received in a motor accident must be made within 6 months of the accident: s 72(1) of the MAC Act . If court proceedings are commenced on a late claim, the insurer may apply to the court to have the proceedings dismissed on the ground of delay: s 73(5) of the MAC Act . A claim may, however, be made more than 6 months after the accident if the claimant provides a full and satisfactory explanation for the delay in making the claim: s 73(1) of the MAC Act .

The plaintiff made a claim against the Nominal Defendant within the prescribed 6 month time limit by lodging a Personal Injury Claim Form with the Nominal Defendant on 26 February 2009. But the plaintiff did not make a claim against the proposed second defendant, Mr Bullen, until 30 April 2010, that is, some 16 months after the accident.

At the hearing of the motions on 27 October 2011, the plaintiff relied upon affidavits made by his lawyers: an affidavit made by Mario Piperides of 30 August 2011 and an…

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.

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Details

Case: [2011] NSWDC 173
Decision Date: 10 November 2011

CaseChat Overview and Summary

In Keen v Nominal Defendant, the plaintiff sought to bring a proceeding against the defendant for injuries sustained in a motor accident. The defendant raised a preliminary objection to the proceeding, asserting that the plaintiff had failed to comply with the statutory requirement of making a claim within six months of the accident. The issue before the court was whether the plaintiff had provided a full and satisfactory explanation for the delay in making the claim. The court considered the evidence and submissions provided by the parties before determining the matter.

The court examined the statutory provision governing the limitation period for claims arising from motor accidents, and noted that a plaintiff must provide a full and satisfactory explanation for any delay in making a claim. The court considered the plaintiff's evidence and submissions, and found that the plaintiff had provided a reasonable explanation for the delay. The court was satisfied that the delay was not attributable to any fault or neglect on the part of the plaintiff, and that there were no other factors that would render the claim unjust or inequitable. The court accordingly allowed the plaintiff's motion and dismissed the defendant's objection.

The court found that the plaintiff had provided a reasonable explanation for the delay in making the claim, and that the delay was not attributable to any fault or neglect on the part of the plaintiff. The court was satisfied that the delay did not prejudice the defendant's ability to defend the claim, and that there were no other factors that would render the claim unjust or inequitable. The court therefore allowed the plaintiff's motion and dismissed the defendant's objection.

The orders of the court were that the plaintiff's motion was allowed, and that the defendant's objection was dismissed. The court further ordered that the proceeding be listed for further mention to facilitate the progress of the matter. The court did not make any orders as to costs.

Orders

Orders of the court

Plaintiff's motion allowed

Motion of second proposed defendant dismissed

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Keen v Nominal Defendant [2011] NSWDC 173
Hearing dates:	27 October and 4 November 2011
Decision date:	10 November 2011
Jurisdiction:	Civil
Before:	Judge Peter Johnstone
Decision:	Plaintiff's motion allowed Motion of second proposed defendant dismissed
Catchwords:	TORT - motor accident - failure to make a claim within 6 months - whether the plaintiff provided a full and satisfactory explanation for the delay
Legislation Cited:	Motor Accidents Compensation Act 1999
Cases Cited:	Ellis v Reko Limited [2010] NSWCA 319 Walker v Howard [2009] NSWCA 408
Category:	Interlocutory applications
Parties:	Wayne Barry Robert Keen (Plaintiff) Nominal Defendant (First Defendant) Kerry Robert Bullen (Proposed Second Defendant)
Representation:	Mr A Campbell of counsel (Plaintiff) Mr Hickey (First Defendant) Mr J Gracie of counsel (Proposed Second Defendant) Benjamin & Robinson (Plaintiff) Curwoods Lawyers (First Defendant) Rankin Nathan Lawyers (Proposed Second Defendant)
File Number(s):	2009/338517
Publication restriction:	None