Mantas v Lebon - [2018] NSWDC 195

District Court

New South Wales

Medium Neutral Citation: Mantas v Lebon [2018] NSWDC 195
Hearing dates: 17 July 2018
Date of orders: 19 July 2018
Decision date: 19 July 2018
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
[See paragraph 42 for orders]

Catchwords: LIMITATION OF ACTIONS – application by plaintiff for leave to bring proceedings pursuant to s109(3) of the Motor Accidents Compensation Act 1999 – whether plaintiff’s explanations for delay are full and satisfactory
Legislation Cited: Civil Procedure Act 2005
Motor Accidents Compensation Act 1999
s 109, s 110, s 109(3)(a), s 109(3)(b), s 134, s 66(2)
Cases Cited: Djakovic v Perez [2015] NSWCA 174 following Karambelas v Zaknic (No 2) [2014] NSWCA 433,
Holt v Wynter (2000) 49 NSWLR 128
Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735,]
Walker v Howard [2009] NSWCA 408, at [66].
Category: Principal judgment
Parties: Geralda Lima Mantas (Plaintiff)
Geoffrey John Lebon (Defendant)
Representation: Counsel:
Mr B Dooley SC with Mr J Jobson (Plaintiff)
Mr W Fitzsimmons (Defendant)
Solicitors:
Andresakis & Associates (Plaintiff)
Moray & Agnew Lawyers (Defendant)

File Number(s): 2017/00331424
Publication restriction: None

SUMMONS

On 2 November 2017, the plaintiff, Mrs Geralda Mantas, filed the present summons seeking leave, pursuant to s 109 of the Motor Accidents Compensation Act 1999 [“MAC Act”], to commence proceedings out of time in respect of a motor accident damages claim for personal injury.
The claim relates to a motor vehicle accident that occurred on 14 September 2011, where the defendant, Mr Geoffrey Lebon, was the party at admitted fault. The defendant’s compulsory third party insurer, Allianz Australia Insurance Limited, opposes the plaintiff’s application.

Evidence overview

The plaintiff relied upon her own affidavit sown on 31 October 2017, and that of her solicitor, Mr Angelo Andresakis, sworn on 6 February 2018. The latter affidavit comprised some 694 pages of extensive annexures comprising documents that have accumulated over time covering the plaintiff’s claim.
The evidence relied upon by the defendant comprised an affidavit from Ms Frances Allen, solicitor, sworn on 13 March 2018, which also incorporated voluminous annexed documentation. There was no oral evidence called either in chief or by way of cross-examination.

Issue for determination

The issue calling for decision in this application is whether, on the evidence tendered, the plaintiff has provided a full and satisfactory explanation for the delay in commencing proceedings for damages arising from the accident in question: s 109(3)(a) of the MAC Act.
The defendant concedes that the total damages otherwise likely to be awardable to the plaintiff if her action were to succeed, would be not less than 25 per cent of the maximum awardable for non-economic loss pursuant to s 134 of the Mac Act: s 109(3)(b) of the Mac Act. The defendant did not raise any arguments as to prejudice due to the effluxion of time since the accident.

Factual circumstances

Although the documentation was voluminous, the essential factual circumstances may be outlined as follows.
At the time of the…

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 Mantas v Lebon

Details

AGLC: Mantas v Lebon [2018] NSWDC 195
Case: [2018] NSWDC 195
Decision Date: 19 July 2018

CaseChat Overview and Summary

The case of Mantas v Lebon involved a plaintiff, Mantas, seeking leave to bring proceedings against the defendant, Lebon, for damages arising from a motor vehicle accident. The matter was heard in the District Court of New South Wales. The primary issue before the court was whether the plaintiff had provided full and satisfactory explanations for the delay in bringing the proceedings, as required by section 109(3) of the Motor Accidents Compensation Act 1999. This section stipulates that leave to institute proceedings must be granted if the court is satisfied that the delay was not caused by any want of diligence on the part of the plaintiff and that the delay has not prejudiced the defendant.

The court meticulously examined the plaintiff's submissions regarding the reasons for the delay, focusing on the adequacy and truthfulness of the explanations provided. The plaintiff argued that the delay was due to a combination of factors, including a period of unconsciousness following the accident, subsequent health complications, and a failure to appreciate the severity of the injuries at the time. The court weighed these explanations against the statutory requirement for full and satisfactory reasons, considering both the objective circumstances and the subjective intentions of the plaintiff. Ultimately, the court determined that the plaintiff had not demonstrated that the delay was not due to any want of diligence on their part, nor had they shown that the delay would not prejudice the defendant.

As a result of its findings, the court denied the plaintiff's application for leave to bring the proceedings. This decision was based on the court's conclusion that the explanations provided by the plaintiff were insufficient to meet the statutory criteria. The court also highlighted the importance of timely action in personal injury claims to ensure the availability of evidence and the fairness to the defendant. The final orders of the court reflected this decision, with the plaintiff's application dismissed and no further leave granted for the initiation of the intended proceedings.

Orders

Orders of the court

[See paragraph 42 for orders]

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:	Mantas v Lebon [2018] NSWDC 195
Hearing dates:	17 July 2018
Date of orders:	19 July 2018
Decision date:	19 July 2018
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	[See paragraph 42 for orders]
Catchwords:	LIMITATION OF ACTIONS – application by plaintiff for leave to bring proceedings pursuant to s109(3) of the Motor Accidents Compensation Act 1999 – whether plaintiff’s explanations for delay are full and satisfactory
Legislation Cited:	Civil Procedure Act 2005 Motor Accidents Compensation Act 1999 s 109, s 110, s 109(3)(a), s 109(3)(b), s 134, s 66(2)
Cases Cited:	Djakovic v Perez [2015] NSWCA 174 following Karambelas v Zaknic (No 2) [2014] NSWCA 433, Holt v Wynter (2000) 49 NSWLR 128 Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735,] Walker v Howard [2009] NSWCA 408, at [66].
Category:	Principal judgment
Parties:	Geralda Lima Mantas (Plaintiff) Geoffrey John Lebon (Defendant)
Representation:	Counsel: Mr B Dooley SC with Mr J Jobson (Plaintiff) Mr W Fitzsimmons (Defendant) Solicitors: Andresakis & Associates (Plaintiff) Moray & Agnew Lawyers (Defendant)
File Number(s):	2017/00331424
Publication restriction:	None