Mano v Rasho - [2016] NSWDC 126

District Court

New South Wales

Medium Neutral Citation: Mano v Rasho [2016] NSWDC 126
Hearing dates: 27 May 2016; 9 June 2016
Date of orders: 09 June 2016
Decision date: 09 June 2016
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
Motion dismissed

Catchwords: CIVIL – Motor accident claim – Plaintiff failed to make a claim within 6 months of accident as required by Motor Accidents Compensation Act 1999, s 72(1) – Defendant moved to strike out proceedings – Plaintiff seeks to provide full and satisfactory explanation for her delay: ss 73(1) and 66(2) – Recent immigrant – Married Assyrian woman from Iraq whose culture required her to obey her husband – Husband refused permission to make a claim until ten months after the motor accident – Held: a full and satisfactory explanation given plaintiff’s cultural background
Legislation Cited: Civil Procedure Act 2005
Motor Accidents Compensation Act 1999
Cases Cited: Aiden Shipping Company Ltd v Interbulk Ltd [1986] AC 965
Buller v Black [2003] NSWCA 45
FPM Constructions v The Council of the City of the Blue Mountains [2005] NSWCA 340
Knight v FP Special Assets Ltd (1992) 174 CLR 178
NSW Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8
Walker v Howard [2009] NSWCA 408
Category: Procedural and other rulings
Parties: Samiya Dawood Mano (Plaintiff/ Respondent)
Merlatia Rasho (Defendant /Applicant)
Representation:
Counsel:
Ms S Warren (Plaintiff/ Respondent)
Mr D Hanna (Defendant /Applicant)
Solicitors:
Gajic Lawyers (Plaintiff/ Respondent)
Curwoods Legal Services Pty Ltd (Defendant /Applicant)

File Number(s): 2016/16849
Publication restriction: No

Judgment

HIS HONOUR: On 18 January 2016 the plaintiff filed a statement of claim, claiming damages for personal injury which she alleges she sustained when she was involved in a motor accident on 22 December 2013. The plaintiff alleges that at the relevant time she was a passenger in a motor vehicle owned and driven by the defendant. On 10 March 2016 the defendant filed a notice of motion seeking that the statement of claim be dismissed for a breach of s 72 of the Motor Accidents Compensation Act 1999 (MACA).
Section 72(1) of MACA provides this:

"A claim must be made within six months after the relevant date for the claim. The relevant date is the date of the motor accident to which the claim relates, unless the claim is made in respect of the death of a person, in which case the relevant date is the date of the person's death."

Section 73(1) of MACA 1999 provides this:

"A claim may be made more than six months after the relevant date for the claim under s 72 (in this section called a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer."

In deciding this case, I have carefully borne in mind what fell from Giles JA, with whom Ipp JA, concurred in Buller v Black [2003] NSWCA 45 at [95] and that which fell from Allsop…

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 Mano v Rasho

Details

AGLC: Mano v Rasho [2016] NSWDC 126
Case: [2016] NSWDC 126
Decision Date: 09 June 2016

CaseChat Overview and Summary

In the case of Mano v Rasho, the plaintiff brought a claim for motor accident compensation against the defendant. The plaintiff had failed to make the claim within the six-month period required by section 72(1) of the Motor Accidents Compensation Act 1999. The defendant moved to strike out the proceedings on the basis that the plaintiff had not provided a full and satisfactory explanation for the delay as required by sections 73(1) and 66(2) of the Act. The plaintiff sought to argue that her delay in making the claim was due to her cultural background as a recent immigrant from Iraq, where she was required to obey her husband. The husband had refused to give permission for the plaintiff to make a claim until ten months after the accident.

The court was required to determine whether the plaintiff had provided a full and satisfactory explanation for her delay in making the claim. The court considered the plaintiff's cultural background and the requirement for her to obey her husband. The court found that the plaintiff had provided a full and satisfactory explanation for her delay, taking into account her cultural background and the fact that she was unable to make the claim without her husband's permission.

The court dismissed the defendant's motion to strike out the proceedings. The court found that the plaintiff's cultural background and the requirement for her to obey her husband provided a full and satisfactory explanation for her delay in making the claim. The court held that the plaintiff's explanation was reasonable and that the delay was not attributable to any fault on her part. The court concluded that the plaintiff had met the requirements of sections 73(1) and 66(2) of the Act and that the motion to strike out the proceedings should be dismissed.

The court's decision highlights the importance of taking into account cultural background and individual circumstances when considering claims for motor accident compensation. The court recognised that the plaintiff's cultural background and the requirement for her to obey her husband were significant factors that contributed to her delay in making the claim. The court's decision also emphasises the importance of providing a full and satisfactory explanation for any delay in making a claim, and the need for the court to consider individual circumstances when determining whether such an explanation has been provided.

Orders

Orders of the court

Motion dismissed

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:	Mano v Rasho [2016] NSWDC 126
Hearing dates:	27 May 2016; 9 June 2016
Date of orders:	09 June 2016
Decision date:	09 June 2016
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Motion dismissed
Catchwords:	CIVIL – Motor accident claim – Plaintiff failed to make a claim within 6 months of accident as required by Motor Accidents Compensation Act 1999, s 72(1) – Defendant moved to strike out proceedings – Plaintiff seeks to provide full and satisfactory explanation for her delay: ss 73(1) and 66(2) – Recent immigrant – Married Assyrian woman from Iraq whose culture required her to obey her husband – Husband refused permission to make a claim until ten months after the motor accident – Held: a full and satisfactory explanation given plaintiff’s cultural background
Legislation Cited:	Civil Procedure Act 2005 Motor Accidents Compensation Act 1999
Cases Cited:	Aiden Shipping Company Ltd v Interbulk Ltd [1986] AC 965 Buller v Black [2003] NSWCA 45 FPM Constructions v The Council of the City of the Blue Mountains [2005] NSWCA 340 Knight v FP Special Assets Ltd (1992) 174 CLR 178 NSW Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8 Walker v Howard [2009] NSWCA 408
Category:	Procedural and other rulings
Parties:	Samiya Dawood Mano (Plaintiff/ Respondent) Merlatia Rasho (Defendant /Applicant)
Representation:	Counsel: Ms S Warren (Plaintiff/ Respondent) Mr D Hanna (Defendant /Applicant) Solicitors: Gajic Lawyers (Plaintiff/ Respondent) Curwoods Legal Services Pty Ltd (Defendant /Applicant)
File Number(s):	2016/16849
Publication restriction:	No