Mortimer v Moon - [2011] NSWDC 53

District Court

New South Wales

Medium Neutral Citation: Mortimer v Moon [2011] NSWDC 53
Hearing dates: 16 February 2011
Decision date: 25 February 2011
Jurisdiction: Civil
Before: Judge Peter Johnstone
Decision:
Summons dismissed with costs

Catchwords: TORT - motor accident - failure to commence proceedings within 3 years - failure to comply with a notice requiring commencement of proceedings within 3 months - claim deemed to have been withdrawn - application for reinstatement of the claim, and, if reinstated, for leave to commence proceedings out of time
Legislation Cited: Motor Accidents Compensation Act 1999
Cases Cited: Ellis v Reko Pty Limited [2010] NSWCA 319 Walker v Howard [2009] NSWCA 408
Category: Principal judgment
Parties: Cran Mortimer (Plaintiff)
Hea Won Chi Moon (Defendant)
Representation: Mr K Ryan (Plaintiff)
Mr W Fitzsimmons (Defendant)
Symons Cottee Lawyers (Plaintiff)
Curwoods Layers (Defendant)

File Number(s): 2010/117689
Publication restriction: None

Judgment

The plaintiff was injured in a motor accident on 10 April 2006. He made a claim for damages under the Motor Accidents Compensation Act 1999 (the MAC Act), which the insurer denied.

The plaintiff should have commenced proceedings for damages within 3 years, that is, by 10 April 2009, but failed to do so: s 109 of the MAC Act . He is therefore out of time.

By Notice received on 22 December 2010 under s 110 of the MAC Act , the plaintiff was required by the insurer to commence proceedings within 3 months, that is, by 22 March 2011. The plaintiff failed to do. He is therefore taken to have withdrawn his claim.

The issues for determination

By Summons filed on 12 May 2010 and subsequently amended on 5 October 2010 the plaintiff seeks orders of the court for the reinstatement of his claim, and, if reinstated, for leave to commence proceedings out of time.

The court may reinstate a claim if satisfied that the claimant has a full and satisfactory explanation for the failure to comply with the notice: s 110(5) of the MAC Act .

The court must not grant leave to a claimant to commence proceedings more than 3 years after the motor accident unless:

(a) the claimant provides a full and satisfactory explanation for the delay: s 109(3)(a)of the MAC Act; and

(b) the total damages likely to be awarded surpass a prescribed threshold: s 109(3)(b) of the MAC Act .

The defendant opposes the orders sought. It contends that the plaintiff failed to provide to the court a full and satisfactory explanation for the delay in commencing proceedings. Alternatively, the defendant says that the plaintiff does not have a full and satisfactory explanation for the failure to comply with the s 110 Notice. (The defendant does not rely on s 109(3)(b) of the MAC Act .)

A reference to a "full and satisfactory explanation" is dealt with in s 66(2) of the MAC Act , which provides:

"In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for…

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.

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Details

Case: [2011] NSWDC 53
Decision Date: 25 February 2011

CaseChat Overview and Summary

In the Supreme Court of Victoria, Mortimer, the plaintiff, sought to reinstate a motor accident claim against Moon, the defendant, which had been deemed withdrawn due to failure to comply with a notice requiring the plaintiff to commence proceedings within three months. Mortimer sought leave to commence proceedings outside of the three-year limitation period. The court was tasked with determining whether the claim could be reinstated and whether Mortimer was entitled to commence proceedings out of time.

The primary legal issue was whether the court should exercise its discretion to reinstate the claim and grant leave to commence proceedings outside the limitation period. The court considered the circumstances under which the claim was initially withdrawn and the reasons for the delay in bringing the proceedings. It was necessary to assess whether Mortimer had a satisfactory explanation for the delay and whether there were any circumstances that warranted the exercise of the court's discretion.

The court found that Mortimer did not provide a satisfactory explanation for the delay in commencing the proceedings. The plaintiff had not demonstrated any exceptional circumstances that would justify the exercise of the court's discretion to reinstate the claim and allow the proceedings to be commenced outside the limitation period. Consequently, the court dismissed Mortimer's application for reinstatement and leave to commence proceedings out of time. The summons was dismissed with costs awarded against Mortimer.

Orders

Orders of the court

Summons dismissed with costs

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:	Mortimer v Moon [2011] NSWDC 53
Hearing dates:	16 February 2011
Decision date:	25 February 2011
Jurisdiction:	Civil
Before:	Judge Peter Johnstone
Decision:	Summons dismissed with costs
Catchwords:	TORT - motor accident - failure to commence proceedings within 3 years - failure to comply with a notice requiring commencement of proceedings within 3 months - claim deemed to have been withdrawn - application for reinstatement of the claim, and, if reinstated, for leave to commence proceedings out of time
Legislation Cited:	Motor Accidents Compensation Act 1999
Cases Cited:	Ellis v Reko Pty Limited [2010] NSWCA 319 Walker v Howard [2009] NSWCA 408
Category:	Principal judgment
Parties:	Cran Mortimer (Plaintiff) Hea Won Chi Moon (Defendant)
Representation:	Mr K Ryan (Plaintiff) Mr W Fitzsimmons (Defendant) Symons Cottee Lawyers (Plaintiff) Curwoods Layers (Defendant)
File Number(s):	2010/117689
Publication restriction:	None