Nasih v Nguyen

[2018] NSWDC 153

District Court

New South Wales

Medium Neutral Citation:	Nasih v Nguyen [2018] NSWDC 153
Hearing dates:	8 June 2018
Date of orders:	15 June 2018
Decision date:	15 June 2018
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	1. Defendant’s Notice of Motion filed on 25 May 2018 is dismissed. 2. Order the defendant to pay the plaintiff’s costs.
Catchwords:	MOTOR ACCIDENTS – whether Statement of Claim filed out of time – suspension of time under s 109(2) Motor Accidents Compensation Act 1999 – certificate of exemption from assessment – whether application for exemption and issue of certificate operates to suspend time for commencing proceedings
Legislation Cited:	Motor Accidents Compensation Act 1999
Cases Cited:	Paice v Hill [2009] NSWCA 156
Category:	Procedural and other rulings
Parties:	Sanaa Nasih (plaintiff) Yen Ngec Thi Nguyen (defendant)
Representation:	Counsel: M Cleary (plaintiff) D O’Dowd (defendant)   Solicitors: Stephen Smart & Associates (plaintiff) Hall & Wilcox (defendant)
File Number(s):	2018/110096

Judgment

Introduction

1. This case raises a limitation point which has apparently not been decided in the 19 years since the commencement of the Motor Accidents Compensation Act 1999 (the Act).

2. The plaintiff sued the defendant by a Statement of Claim filed on 9 April 2018, alleging that the defendant was the driver of a motor vehicle which collided with the plaintiff who was a pedestrian. Negligence is alleged. The accident occurred on 11 January 2015. By s 109(1)(a) of the Act a claimant is not entitled to commence proceedings in respect of a claim more than three years after the date of the motor accident to which the claim relates. The plaintiff commenced her proceedings on 9 April 2018 which is more than three years after the date of the motor accident. Section 109(2) of the Act provides:

“Time does run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until two months after a certificate as to the assessment or exemption from assessment is issued.”

3. By a Motion filed on 25 May 2018 the defendant seeks the dismissal of the Statement of Claim pursuant to s 109 of the Act.

4. The plaintiff has not sought leave of the court to commence the proceedings out of time, as she could have done under s 109(1). Rather, the plaintiff argues that she is within time because of the operation of s 109(2).

The Legislation

5. Section 3 of the Act defines “claim” to mean “a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle”.

6. The Act is designed to promote the early resolution of claims. A claimant is obliged to provide as much information as possible to the insurer and the insurer is obliged to consider and if appropriate make an attempt to settle the case. If the claim cannot be settled, then the parties are directed to have the…