Parker v Nominal Defendant - [2013] NSWDC 15

District Court

New South Wales

Medium Neutral Citation: Parker v Nominal Defendant [2013] NSWDC 15
Hearing dates: 22/02/2013
Decision date: 05 March 2013
Before: Levy SC DCJ
Decision:
1.The notice of motion filed by the defendant on 15 October 2012 is dismissed;
2.The defendant is to pay the plaintiff's costs of the dismissed motion on the ordinary basis unless otherwise ordered;
3.Liberty to apply on 7 days notice if further orders are required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - motor vehicle accident - application by Nominal Defendant for dismissal of proceedings for claimed non-compliance with procedural requirements of Motor Accidents Compensation Act 1999, s 34A and s 73 - delayed claim - due inquiry and search
Legislation Cited: Motor Accidents Compensation Act 1999, s 34A, s 73
Cases Cited: Blandford v Fox (1944) 45 SR (NSW) 24
Cavanagh v Nominal Defendant [1958] HCA 57; (1958) 100 CLR 375
Figliuzzi v Yonan [2005] NSWCA 290
Nominal Defendant v Meakes [2012] NSWCA 66
Smith v Grant [2006] NSWCA 244
Walker v Howard [2009] NSWCA 408
Category: Interlocutory applications
Parties: Alison Parker (Plaintiff/Respondent)
The Nominal Defendant (Defendant/Applicant)
Representation: Mr K Andrews with Mr AJ Parker (Plaintiff/Respondent)
Mr A Davis (Defendant/Applicant)
Slater & Gordon (Plaintiff/Respondent)
Moray & Agnew (Defendant/Applicant)

File Number(s): 2012/272627
Publication restriction: None

Judgment

Table of Contents

Notice of Motion

[1] - [4]

Evidence

[5]

Factual background

[6] - [21]

Applicable principles

[22] - [25]

Consideration of the due inquiry and search issue

[26] - [33]

Consideration of plaintiff's explanation for the delay

[34] - [42]

Disposition

[43]

Costs

[44]

Orders

[45]

Notice of motion

In these proceedings the plaintiff claims that on 19 September 2009 she sustained injury in a motor vehicle accident due to the negligence of the driver of a motor vehicle which cannot be identified after due inquiry and search. The plaintiff's claim is a late claim, as it was not made within 6 months of the accident.

The Nominal Defendant filed the present notice of motion on 15 October 2012, by which it seeks dismissal of the plaintiff's claim, pursuant to s 34A(3) and s 73(5) of the Motor Accidents Compensation Act 1999 ["MAC Act"]

The relief sought pursuant to s 34A(3) of the MAC Act is based on an alleged failure of the plaintiff to pursue due inquiry and search, as is required by s 34 of that Act.

The relief sought pursuant to s 73(5) of the MAC Act is founded upon an alleged failure on the part of the plaintiff to provide a full and satisfactory explanation for the delay in making her claim.

Evidence

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 Nominal Defendant

Details

AGLC: Parker v Nominal Defendant [2013] NSWDC 15
Case: [2013] NSWDC 15
Decision Date: 05 March 2013

CaseChat Overview and Summary

In the case of Parker v Nominal Defendant, the plaintiff, Parker, initiated proceedings against the Nominal Defendant following a motor vehicle accident. The Nominal Defendant applied for the dismissal of the proceedings on the basis of non-compliance with the procedural requirements of the Motor Accidents Compensation Act 1999, specifically sections 34A and 73, due to a delay in filing the claim. The dispute came before the court to determine whether the delay in filing the claim was justified and whether the Nominal Defendant had conducted a due inquiry and search as required by law.

The central legal issues before the court were whether the Nominal Defendant had complied with the statutory requirements for the timely filing of a motor accident claim, and whether the delay in filing was reasonable and justifiable under the circumstances. The court had to assess the evidence presented by both parties regarding the defendant's efforts to locate and serve the plaintiff and the reasons for the delay.

The court found that the Nominal Defendant had not demonstrated that they had conducted a due inquiry and search in attempting to locate and serve the plaintiff as required by the Motor Accidents Compensation Act. The defendant's evidence was insufficient to satisfy the statutory requirements, and the delay in filing the claim was not justified. Consequently, the court dismissed the Nominal Defendant's application for dismissal of the proceedings. The defendant was ordered to pay the plaintiff's costs of the dismissed motion on the ordinary basis unless otherwise ordered. The court also granted liberty to apply on seven days' notice if further orders were required.

The final orders included the dismissal of the notice of motion filed by the defendant, an order for the defendant to pay the plaintiff's costs of the dismissed motion on the ordinary basis unless otherwise ordered, and liberty to apply on seven days' notice if further orders were required. These orders reflect the court's determination that the Nominal Defendant had not met the statutory requirements for timely filing of the motor accident claim and had not justified the delay.

Orders

Orders of the court

1.The notice of motion filed by the defendant on 15 October 2012 is dismissed;

2.The defendant is to pay the plaintiff's costs of the dismissed motion on the ordinary basis unless otherwise ordered;

3.Liberty to apply on 7 days notice if further orders are required.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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 Nominal Defendant [2013] NSWDC 15
Hearing dates:	22/02/2013
Decision date:	05 March 2013
Before:	Levy SC DCJ
Decision:	1.The notice of motion filed by the defendant on 15 October 2012 is dismissed; 2.The defendant is to pay the plaintiff's costs of the dismissed motion on the ordinary basis unless otherwise ordered; 3.Liberty to apply on 7 days notice if further orders are required. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - motor vehicle accident - application by Nominal Defendant for dismissal of proceedings for claimed non-compliance with procedural requirements of Motor Accidents Compensation Act 1999, s 34A and s 73 - delayed claim - due inquiry and search
Legislation Cited:	Motor Accidents Compensation Act 1999, s 34A, s 73
Cases Cited:	Blandford v Fox (1944) 45 SR (NSW) 24 Cavanagh v Nominal Defendant [1958] HCA 57; (1958) 100 CLR 375 Figliuzzi v Yonan [2005] NSWCA 290 Nominal Defendant v Meakes [2012] NSWCA 66 Smith v Grant [2006] NSWCA 244 Walker v Howard [2009] NSWCA 408
Category:	Interlocutory applications
Parties:	Alison Parker (Plaintiff/Respondent) The Nominal Defendant (Defendant/Applicant)
Representation:	Mr K Andrews with Mr AJ Parker (Plaintiff/Respondent) Mr A Davis (Defendant/Applicant) Slater & Gordon (Plaintiff/Respondent) Moray & Agnew (Defendant/Applicant)
File Number(s):	2012/272627
Publication restriction:	None

Notice of Motion	[1] - [4]
Evidence	[5]
Factual background	[6] - [21]
Applicable principles	[22] - [25]
Consideration of the due inquiry and search issue	[26] - [33]
Consideration of plaintiff's explanation for the delay	[34] - [42]
Disposition	[43]
Costs	[44]
Orders	[45]