Linda Joy Crawshaw v Natasha Coxon

District Court

New South Wales

Medium Neutral Citation:	Linda Joy Crawshaw v Natasha Coxon [2018] NSWDC 92
Hearing dates:	6 April 2018
Decision date:	13 April 2018
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Leave granted to commence proceedings out of time. For Orders see [46]
Catchwords:	Motor vehicle accident; late claim; full and satisfactory explanation; predictive assessment of damages
Legislation Cited:	Civil Liability Act 2002 Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Al-Ebadi v Guo [2017] NSWDC 107 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Dijakovic v Perez [2015] NSCCA 174 Eades v Gunestepe [2012] NSWCA 204 Harika v Stanley Tupaea (2003) 58 NSWLR 675 Medlin v State Government Insurance Office (1995) 182 CLR 1 Sinclair v Darwich (2010) 77 NSWLR 166
Category:	Procedural and other rulings
Parties:	Linda Joy Crawshaw (Plaintiff) Natasha Coxon (Defendant)
Representation:	A Canceri (Plaintiff) D Hanna (Defendant)
File Number(s):	17/36243018/41161
Publication restriction:	Nil

Judgment on SUMMONS AND notice of motion

Introduction

1. On 7 February 2018 the plaintiff filed a Summons seeking the following relief:

1. “An order pursuant to s 109(1) of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”) granting leave to commence proceedings out of time.

2. An order that the plaintiff’s explanation for the delay in making a claim is full and satisfactory.

3. An order that the defendant pay the plaintiff’s costs of, and incidental to, this Summons and of these proceedings.

4. Such other orders as the court deems fit to make.”

2. The proceedings for which leave was being sought to commence out of time, had in fact been commenced by filing of a Statement of Claim on 30 November 2017. That prompted the defendant to file a Notice of Motion on 22 December 2017 in those proceedings seeking the following prayers for relief:

1. “That these proceedings be dismissed pursuant to s 109 of the MACA.

2. That the plaintiff pay the defendant’s costs of, and incidental to, this Notice of Motion and of these proceedings.”

3. The plaintiff had suffered injuries in a motor vehicle accident on 20 October 2011. The time for bringing proceedings pursuant to the MACA therefore expired on 20 October 2014.

4. The plaintiff served a claim form on the defendant insurer on 9 March 2015. As that claim was out of time, the plaintiff was required to provide to the insurer an explanation for the delay in bringing her claim. She did so by way of statutory declaration made on 21 July 2015.

5. On 7 August 2015 the insurer accepted the plaintiff’s explanation as being full and satisfactory. Further, the claim then proceeded through the MAS procedure to a CARS assessment, which resulted in an award in favour of the plaintiff on 20 October 2017. Pursuant to the MACA, the plaintiff elected not to accept the award, but to proceed to commence court proceedings.

6. Section 109 of the MACA provides as follows:

“109 Time limitations on commencement of court proceedings

(1) A claimant is not entitled to commence proceedings in…