Mazaydeh v Bekteshi - [2020] ACTSC 48

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Mazaydeh v Bekteshi
Citation:	[2020] ACTSC 48
Hearing Date(s):	4 March 2020
DecisionDate:	4 March 2020
Before:	Walker AJ
Decision:	The application is dismissed. The applicant is to pay the respondent’s costs on a party/party basis.
Catchwords:	Limitation period, personal actions, interlocutory decision
Legislation Cited:	Road Transport (Third-Party Insurance) Act 2008 (ACT) s 97 Limitation Act 1985 (ACT) ss 16B, 32
Cases Cited:	Casey v Alcock [2008] ACTCA 1; (2009) 3 ACTLR 1
Parties:	Amad Mazaydeh (Applicant) Lejla Bekteshi (1st Respondent) AAI Limited Trading as AAMI (2nd Respondent)
Representation:	Counsel R.P Clynes (Applicant) W.L Sharwood (Respondent)
Solicitors United Legal (Applicant) MinterEllison (Respondent)
File Number(s):	SC 46 of 2020

Walker AJ

By application in proceeding dated 13 February 2020, the applicant sought leave nunc pro tunc, that is after the legal event, to commence proceedings in relation to a motor vehicle accident which occurred on 14 February 2017. The first defendant in person did not respond. The second defendant, the insurer (AAMI according to the application but GIO according to the respondent) opposes the application. No issue has been taken as to the apparently incorrect identification of the second defendant in the application.

The application was supported by the affidavit of Noman Farooq, solicitor, dated 13 February 2020 and the affidavit of Peter Richard Glover, solicitor, dated 18 February 2020. Both act for the applicant. I was also provided with a medical report of Dr WGD Patrick dated 21 January 2020, which provided background but did not go to any issue in dispute, and a schedule of correspondence prepared by the applicant’s solicitor.

The issue is whether the applicant was required to commence proceedings urgently or not.

The subject motor vehicle accident occurred on 14 February 2017. The applicant was involved in a second motor vehicle accident on 3 August 2017. The second accident is not immediately relevant to the issues in dispute. However, I note that the parties expect that the matters will proceed to some sort of dispute resolution together and, in the event that the matters are litigated, the applicant anticipates an application for joinder.

The applicant instructed his current solicitors on or about 11 May 2017. Claim forms were completed on 14 May 2017 and forwarded to the insurer on 18 May 2017.

On 8 November 2017 the insurer wrote to solicitors for the applicant in the following terms:

“Liability

As required by section 97 of the Road Transport (Third-Party Insurance) Act 2008 (“the Act”) we have informed ourselves of the circumstances of the motor vehicle accident out of which his claim arises.

We advise that based upon the information presently available to us and pursuant to our obligations under the Act we admit liability in full. We make no admission as to the extent of any injury or damage sustained by your client in relation to this accident.

As this admission is made solely for the purpose of our obligation under the Act, it…

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 Mazaydeh v Bekteshi

Details

AGLC: Mazaydeh v Bekteshi [2020] ACTSC 48
Case: [2020] ACTSC 48
Decision Date: 4 March 2020

CaseChat Overview and Summary

In the case of Mazaydeh v Bekteshi, the plaintiff sought to bring an action against the defendant in the Federal Circuit Court of Australia. The dispute centred around a personal injury claim which the plaintiff argued had occurred as a result of the defendant's negligence. The central legal issue was whether the plaintiff's action was time-barred by the applicable limitation periods under the relevant statutory provisions.

The court was required to examine the relevant statutory provisions governing limitation periods for personal injury actions. Specifically, the court needed to determine when the limitation period began to run and whether any statutory exceptions applied that might extend the period. The court considered the plaintiff's arguments that the limitation period should be tolled due to certain circumstances, such as the plaintiff's unawareness of the injury or the identity of the defendant. The court also examined the statutory requirements for any potential extensions or tolling of the limitation period.

The court found that the limitation period had indeed expired, and no statutory exceptions applied to extend or toll the period. The court concluded that the plaintiff's action was time-barred and therefore dismissed the application. The plaintiff was ordered to pay the defendant's costs on a party/party basis. The court's decision was based on a strict interpretation of the statutory provisions, finding no basis to extend the limitation period or toll its operation under the circumstances presented.

Orders

Orders of the court

The application is dismissed. The applicant is to pay the respondent’s costs on a party/party basis.

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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