Parker v MacLoughlin - [2022] NSWDC 532

District Court

New South Wales

Medium Neutral Citation: Parker v MacLoughlin [2022] NSWDC 532
Hearing dates: 28 October 2022
Date of orders: 8 November 2022
Decision date: 08 November 2022
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1) Grant leave to the plaintiff nunc pro tunc to commence these proceedings by the Statement of Claim already filed.
(2) Order the plaintiff to pay the defendant’s costs of the plaintiff’s Notice of Motion filed on 30 June 2022.

Catchwords:
MOTOR ACCIDENT LEGISLATION – late claims – whether claimant has a full and satisfactory explanation for delay in commencing proceedings – whether a reasonable person in the position of the claimant would have been justified in experiencing the same delay
CIVIL PROCEDURE – commencement of proceedings – application for leave to commence action
COSTS – party/party – exceptions to general rule that costs follow the event – party seeking indulgence or dispensation of the court

Legislation Cited:
Motor Accidents Compensation Act 1999 (NSW), ss 66, 72, 73, 109

Cases Cited:
Karambelas v Zaknic (No. 2) [2014] NSWCA 433
Walker v Howard [2009] NSWCA 408; (2009) 78 NSWLR 161

Category: Procedural rulings
Parties: Darren Hilton Parker (Plaintiff)
Toni MacLoughlin (Defendant)
Representation:
Counsel:
C T Barry KC with J Hallion (Plaintiff)
K Rewell SC (Defendant)
Solicitors:
G & S Law Group (Plaintiff)
McInnes Wilson Lawyers (Defendant)

File Number(s): 2022/190804

Judgment

Introduction

The plaintiff Mr Darren Parker was the rider of a motorcycle involved in an accident on 2 July 2009. Mr Parker was knocked unconscious in the accident and has no memory of what happened. There was no physical collision with another vehicle.
By s 72 of the Motor Accidents Compensation Act 1999 (NSW) (the Act) Mr Parker had to lodge a claim with the CTP insurer within six months of the date of the accident. He was late in lodging the claim. By s 109 of the Act Mr Parker had to commence court proceedings in respect of his claim within three years of the accident. He was late in commencing proceedings.
On 30 June 2022 Mr Parker filed a Statement of Claim and a Notice of Motion seeking leave to commence proceedings out of time.
The defendant is effectively the CTP insurer of the driver of the vehicle (Ms MacLoughlin) alleged to have caused the accident.
Mr Parker relied upon:

His affidavit dated 19 October 2022 (PX 1) and its annexures (PX 2).

The affidavit of his wife Mrs Kylie Parker dated 20 October 2022.

His Statutory Declaration dated 3 June 2020 (PX 4).

Mrs Parker’s Statutory Declaration dated 11 March 2021 (PX 5).

The defendant called no evidence.
Senior Counsel for Mr Parker provided a chronology (MFI 1) and written submissions (MFI 2), as did Senior Counsel for the defendant (MFI 3). Mrs Parker was cross-examined, but Mr Parker was not. Both parties then made oral submissions through their counsel.

The Law

Section 72 of the Act provides as follows:

“72 Time for and notice of making of claims

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 Parker v MacLoughlin

Details

AGLC: Parker v MacLoughlin [2022] NSWDC 532
Case: [2022] NSWDC 532
Decision Date: 08 November 2022

CaseChat Overview and Summary

In the case of Parker v MacLoughlin, the plaintiff, Mr Parker, sought leave to commence proceedings against the defendant, Mr MacLoughlin, in relation to a motor accident that occurred on 25 March 2019. The plaintiff's initial Statement of Claim was filed on 23 June 2022, outside the three-year limitation period prescribed by the Motor Accident Act 1994. The plaintiff applied for leave to commence the action nunc pro tunc, asserting that he had a full and satisfactory explanation for the delay in filing his claim and that a reasonable person in his position would have been justified in experiencing the same delay. The primary legal issue before the court was whether the plaintiff had provided an adequate explanation for the delay and whether the court should exercise its discretion to grant leave to commence the action outside the statutory limitation period.

The court considered the evidence provided by the plaintiff regarding his explanation for the delay. The plaintiff alleged that he had experienced significant trauma and stress following the accident, which impeded his ability to attend to his legal affairs. The court examined the circumstances surrounding the accident, the plaintiff's medical history, and the nature of the injuries sustained. The court also considered the defendant's opposition to the application, which raised concerns about the potential prejudice to the defendant if the claim was allowed to proceed. After carefully weighing the evidence and arguments presented by both parties, the court concluded that the plaintiff had provided a satisfactory explanation for the delay in filing his claim and that a reasonable person in his position would have been justified in experiencing the same delay.

The court granted leave to the plaintiff to commence the action nunc pro tunc, effectively validating the Statement of Claim as if it had been filed within the statutory limitation period. The court recognised the plaintiff's trauma and stress following the accident as significant factors contributing to the delay. However, the court also noted the defendant's concerns about potential prejudice and ordered the plaintiff to pay the defendant's costs associated with the Notice of Motion filed on 30 June 2022. This decision highlights the court's willingness to consider compassionate factors in determining whether to grant leave to commence proceedings outside the statutory limitation period, while also emphasising the importance of fairness and the potential impact on the opposing party.

Orders

Orders of the court

(1) Grant leave to the plaintiff nunc pro tunc to commence these proceedings by the Statement of Claim already filed.

(2) Order the plaintiff to pay the defendant’s costs of the plaintiff’s Notice of Motion filed on 30 June 2022.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Parker v MacLoughlin [2022] NSWDC 532
Hearing dates:	28 October 2022
Date of orders:	8 November 2022
Decision date:	08 November 2022
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Grant leave to the plaintiff nunc pro tunc to commence these proceedings by the Statement of Claim already filed. (2) Order the plaintiff to pay the defendant’s costs of the plaintiff’s Notice of Motion filed on 30 June 2022.
Catchwords:	MOTOR ACCIDENT LEGISLATION – late claims – whether claimant has a full and satisfactory explanation for delay in commencing proceedings – whether a reasonable person in the position of the claimant would have been justified in experiencing the same delay CIVIL PROCEDURE – commencement of proceedings – application for leave to commence action COSTS – party/party – exceptions to general rule that costs follow the event – party seeking indulgence or dispensation of the court
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 66, 72, 73, 109
Cases Cited:	Karambelas v Zaknic (No. 2) [2014] NSWCA 433 Walker v Howard [2009] NSWCA 408; (2009) 78 NSWLR 161
Category:	Procedural rulings
Parties:	Darren Hilton Parker (Plaintiff) Toni MacLoughlin (Defendant)
Representation:	Counsel: C T Barry KC with J Hallion (Plaintiff) K Rewell SC (Defendant) Solicitors: G & S Law Group (Plaintiff) McInnes Wilson Lawyers (Defendant)
File Number(s):	2022/190804