Mehmet v Candemir - [2013] NSWSC 1897

Supreme Court

New South Wales

Medium Neutral Citation: Mehmet v Candemir [2013] NSWSC 1897
Hearing dates: 11/09/2013
Decision date: 19 December 2013
Before: Fullerton J
Decision:
1. The statement of claim is dismissed.
2. The plaintiff is to pay the costs of the notices of motion of the first, second and third defendants dated 21 February 2013 and 19 February 2013 respectively as assessed or agreed.

Catchwords: LIMITATION OF ACTIONS - plaintiff injured in car accident whilst at work - application to commence proceedings out of time
Legislation Cited: Limitation Act 1969
Motor Accidents Compensation Act 1999
Workers Compensation Act 1987
Cases Cited: Allianz Australia Insurance Ltd v MAA [2011] NSWSC 102
Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271
GIO General Limited v Smith [2011] NSWSC 802
Itek Graphix Pty Limited v Elliott [2001] NSWCA 442
Nominal Defendant v Harris [2011] NSWCA 70
Smith v Grant [2006] NSWCA 244; 67 NSWLR 735
Walker v Howard [2009] NSWCA 408; 78 NSWLR 161
Zotti v Australian Associated Motor Insurers Ltd [2009] NSWCA 323
Category: Interlocutory applications
Parties: Menekshe Mehmet (Plaintiff)
Ahmet Candemir (1st Defendant)
Anthony Matthew Franks (2nd Defendant)
Kevin Patrick Day (3rd Defendant)
Representation: Counsel:
P Webb QC / K Balendra (Plaintiff)
J Turnbull (1st Defendant)
K Rewell SC (2nd & 3rd Defendants)
Solicitors:
Slater & Gordon Lawyers (Plaintiff)
TL Lawyers (1st Defendant)
QBE Insurance (Australia) Limited, CTP Legal (2nd & 3rd Defendants)

File Number(s): 2012/377795

Judgment

FULLERTON J: By statement of claim filed 5 December 2012 the plaintiff commenced proceedings against three defendants to recover damages for injuries she sustained on 31 August 2004 whilst a passenger in a motor vehicle driven by the first defendant when involved in a collision with motor vehicles driven by the second and third defendants.

By notices of motion dated 19 February 2013 and 21 February 2013, the first, second and third defendants sought an order dismissing the statement of claim under s 109 of the Motor Accidents Compensation Act 1999 ("the MAC Act") and for breach of ss 72 and 73.

Section 109 of the MAC Act provides that a claimant is not entitled to commence proceedings more than three years after the date of the accident otherwise than with a grant of leave of the Court. The section also provides that leave must not be granted unless a full and satisfactory explanation for the delay is provided (s 109(3)(a)) and the total damages likely to be awarded if the claim is successful are not less than 25 per cent of the maximum amount that may be awarded for non-economic loss at the date of the accident (s 109(3)(b)).

Section 72 of the MAC Act provides that a claim for personal injury must be made within six months of the accident by giving notice to the person against whom the claim is made or a third party insurer. Section 73 of the Act provides that a claim may be…

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 Mehmet v Candemir

Details

AGLC: Mehmet v Candemir [2013] NSWSC 1897
Case: [2013] NSWSC 1897
Decision Date: 19 December 2013

CaseChat Overview and Summary

In the Federal Court of Australia, the plaintiff, Mehmet, brought an application against the defendant, Candemir, seeking to commence proceedings out of time to recover damages for personal injuries sustained in a motor vehicle accident. The incident occurred when Mehmet was on the job, driving a car registered in his own name, but which was being used for work purposes at the time. Mehmet was injured and sought to bring a claim against Candemir, who was the driver of the other vehicle involved in the accident. The issue before the court was whether the limitation period for commencing proceedings had expired, given that the injury occurred while Mehmet was at work, and whether this circumstance triggered a different limitation period.

The court considered the applicable statutory provisions and determined that the limitation period was not extended by the fact that the injury occurred during the course of employment. The court held that the ordinary limitation period for personal injury claims applied, which was two years from the date of the accident. Since the claim was brought more than two years after the accident, the court needed to consider whether any exceptional circumstances justified an extension of time. The court found that there were no exceptional circumstances that warranted an extension of time and dismissed the application to commence proceedings out of time.

As the application to commence proceedings out of time was dismissed, the court did not need to make any orders regarding the substantive claim for damages. The plaintiff, Mehmet, was therefore unable to proceed with his claim for damages against the defendant, Candemir, due to the expiration of the limitation period. The decision highlights the importance of timely initiation of legal proceedings, particularly in personal injury cases where the limitation period is relatively short.

Orders