Milaki v Dam

Milaki (the plaintiff) commenced proceedings against Dam (the defendant) in the Local Court seeking compensation for injuries sustained in a motor accident. The defendant applied to dismiss the proceedings under section 109(3)(b) of the Motor Accident Compensation Act 1999 (NSW) on the basis that the plaintiff had not served a certificate of urgency within the required timeframe. The plaintiff then applied for leave to continue the proceedings, arguing that the delay was not significant and that the defendant would suffer no prejudice if the proceedings were allowed to continue. The court was required to determine whether the delay in serving the certificate of urgency was such that it would be just to dismiss the proceedings, and whether the plaintiff should be granted leave to continue the proceedings despite the delay.

The court found that the delay in serving the certificate of urgency was significant, and that the plaintiff had failed to establish any exceptional circumstances that would justify the delay. The court noted that the defendant had already suffered prejudice as a result of the delay, as they had been unable to properly prepare their defence. The court held that it would be just to dismiss the proceedings, and that the plaintiff was not entitled to leave to continue the proceedings. The plaintiff’s application for leave to continue the proceedings was dismissed, and the proceedings were dismissed with the plaintiff to pay the defendant’s costs. The exhibits were retained for 28 days.