Kheyo v Iglesias - [2020] NSWDC 323

District Court

New South Wales

Medium Neutral Citation: Kheyo v Iglesias [2020] NSWDC 323
Hearing dates: 16 June 2020
Date of orders: 17 June 2020
Decision date: 17 June 2020
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraph 72

Catchwords: TORTS – motor accident – statutory requirement to bring a claim within 6 months of date of accident – claimant’s inability to identify other driver until after expiry of time limitation – late claim against defendant – whether “full and satisfactory” explanation – relevance of delay in inquiry by claimant’s solicitor
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 66,72, 73
Cases Cited: Brierley v Ellis [2014] NSWCA 230
Hunter v Roberts [2019] NSWCA 116
Karambelas v Zaknic (No. 2) [2014] NSWCA 433
Mancini v Thompson [2002] NSWCA 38
Smith v Grant [2006] NSWCA 244
Walker v Howard (2009) 78 NSWLR 161
Category: Principal judgment
Parties: Mr J Kheyo (Plaintiff)
Mr F Iglesias (Defendant)
Representation:
Counsel:
Mr J Malouf for the Plaintiff
Mr W Reynolds for the Defendant
Solicitors:
Gerard Malouf & Partners for the Plaintiff
Moray & Agnew Lawyers for the Defendant

File Number(s): 2020/83686
Publication restriction: Nil

Judgment

INTRODUCTION

The plaintiff (the respondent to the application) alleges that he was involved in a motor accident on 18 September 2017 in which he was a front seat passenger. By his statement of claim dated 16 March 2020, he has brought a claim for damages for personal injury arising from the accident. By s 72 of the Motor Accidents Compensation Act1999 (NSW) (the ‘MAC Act’) the period of time in which he was required to bring a claim expired on 18 March 2018. In that period, the plaintiff duly brought a claim against the Nominal Defendant, since he was unable to identify the driver of the vehicle that collided with the vehicle in which he was a passenger. However, after that claim was brought, and after the limitation period had expired for bringing claims, he discovered the identity of the other driver. He then brought a new claim against the defendant on 4 May 2018, a period just over 7 weeks after the time the legislation required him to bring the claim against the defendant. The insurer for the defendant, GIO, sought explanation for the delay and, after multiple explanations and answers to requests for information were supplied to it, rejected the claim. The respondent thereafter commenced this proceeding.
By a notice of motion dated 8 May 2020, the defendant (the applicant) seeks an order pursuant to s 73(5) of the MAC Act for the proceeding to be dismissed. That application is opposed.
The ultimate issue in this application is whether the plaintiff provided ‘full and satisfactory explanation’ for his delay in making the claim. The defendant says that such explanation, or explanations in the aggregate, as has or have been given for the delay in bringing the claim against the defendant, are neither full nor satisfactory.

FACTUAL BACKGROUND

The respondent is now 56 years of age. He…

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 Kheyo v Iglesias

Details

AGLC: Kheyo v Iglesias [2020] NSWDC 323
Case: [2020] NSWDC 323
Decision Date: 17 June 2020

CaseChat Overview and Summary

The case of Kheyo v Iglesias involved a motor accident where the plaintiff, Kheyo, was seeking damages from the defendant, Iglesias, for injuries sustained in the collision. The dispute centred on the statutory requirement that a motor accident claim must be brought within six months of the accident occurring. The case was heard in the Supreme Court of New South Wales. Kheyo's claim was filed after the statutory six-month period had expired, but she argued that she could not identify the other driver until after this period had lapsed. This raised the issue of whether the statutory requirement could be excused due to her inability to identify the other driver in time.

The primary legal issue before the court was whether the plaintiff's explanation for the delay in bringing the claim was "full and satisfactory". The court considered the statutory requirement for promptness in filing claims and the circumstances that might justify a departure from this requirement. The court also examined the role and responsibility of the plaintiff's solicitor in promptly investigating the identity of the other driver. The court had to balance the statutory mandate for timely claims against the equitable principle that justice should be done in individual cases.

The court found that the plaintiff's explanation for the delay was not "full and satisfactory". It noted that the plaintiff's solicitor had been given information that could have led to the identification of the other driver well within the statutory period, but had not pursued this inquiry with due diligence. The court held that the delay was not sufficiently justified by the plaintiff's circumstances. Consequently, the court dismissed the claim as being time-barred by the statutory limitation period.

The court ordered that the plaintiff's claim be dismissed, and there be no order as to costs. The decision underscored the importance of adhering to statutory timelines for filing claims and the need for claimants and their solicitors to act with reasonable promptness and diligence in identifying and pursuing claims against the appropriate parties.

Orders

Orders of the court

See paragraph 72

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:	Kheyo v Iglesias [2020] NSWDC 323
Hearing dates:	16 June 2020
Date of orders:	17 June 2020
Decision date:	17 June 2020
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 72
Catchwords:	TORTS – motor accident – statutory requirement to bring a claim within 6 months of date of accident – claimant’s inability to identify other driver until after expiry of time limitation – late claim against defendant – whether “full and satisfactory” explanation – relevance of delay in inquiry by claimant’s solicitor
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 66,72, 73
Cases Cited:	Brierley v Ellis [2014] NSWCA 230 Hunter v Roberts [2019] NSWCA 116 Karambelas v Zaknic (No. 2) [2014] NSWCA 433 Mancini v Thompson [2002] NSWCA 38 Smith v Grant [2006] NSWCA 244 Walker v Howard (2009) 78 NSWLR 161
Category:	Principal judgment
Parties:	Mr J Kheyo (Plaintiff) Mr F Iglesias (Defendant)
Representation:	Counsel: Mr J Malouf for the Plaintiff Mr W Reynolds for the Defendant Solicitors: Gerard Malouf & Partners for the Plaintiff Moray & Agnew Lawyers for the Defendant
File Number(s):	2020/83686
Publication restriction:	Nil