Lawrence v Mills

[2012] NSWDC 4

District Court

New South Wales

Medium Neutral Citation:

Lawrence v Mills [2012] NSWDC 4

Hearing dates:

25 November and 6 December 2011

Decision date:

03 February 2012

Jurisdiction:

Civil

Before:

Judge Peter Johnstone

Decision:

Plaintiff's motion allowed

Defendant's motion dismissed

Catchwords:

TORT - motor accident - failure to make a claim within 6 months - failure to commence proceedings within 3 years - whether a full and satisfactory explanation for the delay provided - whether the likely total damages to be awarded surpass the prescribed threshold

Legislation Cited:

Motor Accidents Compensation Act 1999

Cases Cited:

Ellis v Reko Pty Limited [2010] NSWCA 319 Hayek v Trujillo [2007] NSWCA 139
Hickey Transport Pty Ltd v Gordon [2008] NSWCA 167
McNamara v Fitzgibbon [2005] 274
Russo v Aiello [2003] HCA 53
Sinclair v Darwich [2010] NSWCA 195
Walker v Howard [2009] NSWCA 408

Category:

Interlocutory applications

Parties:

Mark Lawrence (Plaintiff)
Matthew John Mills (Defendant

Representation:

Ms E Welsh of counsel (Plaintiff)
Mr J Guihot of counsel (Defendant)
Brydens Law Office (Plaintiff)
Lee & Lyons, Lawyers (Defendant)

File Number(s):

2011/145932

Publication restriction:

None

REASONS FOR Judgment

1. The plaintiff was injured in a motor accident on 29 September 2004 when the vehicle being driven by the defendant collided with the vehicle he was driving. He commenced these proceedings for damages on 4 May 2011 alleging that the accident was caused by the defendant's negligence.

1. The defendant filed a motion seeking dismissal the plaintiff's proceedings, contending that the plaintiff was not entitled to commence or maintain the proceedings due to delay, being the late claim and the late commencement of proceedings. The plaintiff filed a counter motion seeking the court's leave to proceed.

1. The defendant contends that the plaintiff did not lodge his claim form until 20 June 2006, some 21 months after the accident. 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 Motor Accidents Compensation Act 1999 (the MAC Act) . If court proceedings are commenced on a late claim, an application may be made to have the proceedings dismissed, and the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay: s 73(5) and s 73(7) of the MAC Act .

1. The plaintiff did not commence these proceedings until over 6 years after the accident. A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after a motor accident, except with the leave of the court, which must not grant leave unless the claimant:

(a) provides a full and satisfactory explanation for the delay: s 109(3)(a) of the MAC Act ; and

(b) demonstrates that the total damages of all kinds likely to be awarded are not less than 25% of the maximum amount that may be awarded for non-economic loss under s 134 as at the date of the motor accident: s 109(3)(b) of the MAC Act .

1. A reference…