McDonald v Burchmore

[2022] NSWDC 709

District Court

New South Wales

Medium Neutral Citation:

McDonald v Burchmore [2022] NSWDC 709

Hearing dates:

11 November 2022

Date of orders:

11 November 2022

Decision date:

11 November 2022

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

I extend the limitation period for bringing a claim arising out of the death of the late Lucija Buljevic on 1 October 2016 until the 21 February 2022. By consent, each party will pay her own costs of this application.

Catchwords:

CIVIL – MOTOR ACCIDENT – NOTICE OF MOTION – EXTENSION OF LIMITATION PERIOD – Compensation for relatives - Whether the Plaintiff has provided a “full and satisfactory explanation” pursuant to MACA – Whether the Plaintiff had sufficient knowledge and control of her Solicitor’s conduct.

Legislation Cited:

Compensation to Relatives Act 1897 (NSW)

Motor Accidents Compensation Act 1999 (NSW)

Cases Cited:

Rahman v Al-Maharmeh [2021] NSWCA 31

Smith v Grant [2006] NSWCA 244

Stein v Ryden [2022] NSWCA 212

Texts Cited:

Nil.

Category:

Procedural rulings

Parties:

Plaintiff – Sandra McDonald
Defendant – Gloria Burchmore

Representation:

Counsel:
Plaintiff - Mr Jones, B.
Defendant – No appearance.
Solicitors:
Plaintiff – Stacks Goudkamp
Defendant – No appearance.

File Number(s):

2022/00051024

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Before me is a motion, notice of which was filed on 9 June 2022, but the only prayer for relief is this:

“The plaintiff be granted leave to commence proceedings out of time pursuant to Section 109 of the Motor Accidents Compensation Act 1999”.

2. In fact, the Plaintiff commenced proceedings on 21 February 2022. I assume the Plaintiff seeks leave, nunc pro tunc, to rely on that Statement of Claim. The claim pleaded in the Statement of Claim is a claim under the Compensation to Relatives Act 1897. The Plaintiff is the daughter of the late Lucija Buljevic. She brings the proceedings on behalf of her father, Marko Buljevic, the husband of the late Lucija Buljevic, on her own behalf, and on behalf of her sister, Silvija Buljevic.

3. The proceedings are also brought by the Plaintiff on behalf of her children, Cameron McDonald, and Samuel McDonald, each of whom is a grandchild of the deceased, and also on behalf of the children of her sister Silvija: Klaudija Christine McMahon, Justin Nikola McMahon, Harley Storm McMahon, Jackson Levi Joshua McMahon, and Domanic Axel John McMahon. Of the grandchildren of the deceased, Klaudija and Justin are now, both sui juris. Klaudija is, on my calculation, 21 years old, and Justin is 20 years old. The evidence before me establishes that they have left the care of their mother and are residing together on the South Coast of New South Wales.

4. The proceedings arise out of the death of Lucija Buljevic. On 15 August 2016, she was in the car park of the Coles supermarket in Willarong Road, Caringbah, when she was struck by a vehicle being driven by the Defendant. As a result of that accident, the deceased was severely injured, however, she did not die of her injuries until 1 October…