Penney v Morris - [2018] NSWDC 466

District Court

New South Wales

Medium Neutral Citation: Penney v Morris [2018] NSWDC 466
Hearing dates: 15 – 16 May 2018
Date of orders: 16 May 2018
Decision date: 16 May 2018
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
The notice of motion filed 16/04/18 is dismissed. The statement of claim filed 4 April 2018 is dismissed. I order the plaintiff to pay defendant's costs of the proceedings.

Catchwords: TORTS – MOTOR ACCIDENTS CLAIM – 3 YEAR LIMITATION PERIOD – motor vehicle accident on 27 August 2010 – proceedings commenced 4 April 2018 – application by plaintiff nunc pro tunc to commence proceedings – whether plaintiff’s explanation was satisfactory whether plaintiff needed a tutor – whether plaintiff established the monetary threshold
Legislation Cited: Civil Procedure Act 2005
Felons (Civil Proceedings) Act 1981
Guardianship Act 1987
Limitation Act (1969)
Mental Health Act 2007
Motor Accidents Act 1988
Motor Accidents Compensation Act 1999
Trustee and Guardian Act 2009 (NSW)
Uniform Civil Procedure Rules 2005
Cases Cited: Lyu v Jeon [2012] NSWCA 446
Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643
State of New South Wales v Harlum [2007] NSWCA 124
Walker v Howard [2009] NSWCA 408: (2009) 78 NSWLR 161: (2009) 55 MVR 9,
Category: Procedural and other rulings
Parties: Wayne John Penney (Applicant)
Leah Morris (Respondent)
Representation:
Counsel:
Mr R Foord (Applicant)
Mr K Rewell SC (Respondent)
Solicitors:
Denniston & Day Lawyers (Applicant)
Holman Webb Lawyers (Respondent)

File Number(s): 2018/00104611
Publication restriction: Nil

NOTICE OF MOTION

HIS HONOUR: The plaintiff was injured in a motor vehicle collision at the intersection of Borella Road and Young Street, Albury on 27 August 2010. Proceedings were commenced in this Court on the plaintiff's behalf on 4 April 2018, seven years and seven months after that collision occurred. The Motor Accidents Compensation Act 1999 ("MACA") s 109 provides this:

109 Time limitations on commencement of court proceedings
(1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:
(a) the date of the motor accident to which the claim relates, or
(b) if the claim is made in respect of the death of a person—the date of death,
except with the leave of the court in which the proceedings are to be taken.
(2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued.
(3) The leave of the court must not be granted unless:
(a) the claimant provides a full and satisfactory explanation to the court for the delay, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident.
(4) Subsection…

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 Penney v Morris

Details

AGLC: Penney v Morris [2018] NSWDC 466
Case: [2018] NSWDC 466
Decision Date: 16 May 2018

CaseChat Overview and Summary

The case of Penney v Morris involved a claim for damages following a motor vehicle accident that occurred on 27 August 2010. The plaintiff, Penney, commenced proceedings on 4 April 2018, well beyond the three-year statutory limitation period. The plaintiff sought an application nunc pro tunc to extend the commencement date of the proceedings, arguing that the delay was due to cognitive difficulties and required the appointment of a tutor to assist in managing the proceedings. The court had to determine whether the plaintiff's explanation for the delay was satisfactory, whether a tutor was necessary, and if the plaintiff met the monetary threshold for the claim.

The central legal issues revolved around the interpretation and application of the limitation period under the relevant legislation, the necessity of a tutor for the plaintiff, and the sufficiency of the plaintiff's explanation for the delay in initiating proceedings. The court considered the statutory requirement for a motor accident claim to be initiated within three years and assessed whether exceptional circumstances justified an extension. Additionally, the court examined the evidence regarding the plaintiff's cognitive abilities and the need for a tutor, as well as whether the plaintiff had met the statutory monetary threshold for filing the claim.

The court found that the plaintiff's explanation for the delay was not satisfactory, as it did not adequately account for the significant lapse in time between the accident and the filing of the proceedings. The court also determined that the plaintiff did not require a tutor, as the evidence did not support the necessity of such assistance. Furthermore, the court held that the plaintiff had not established that the monetary threshold was met. Consequently, the court dismissed the application nunc pro tunc and the statement of claim. The court ordered the plaintiff to pay the defendant's costs of the proceedings.

The court's decision underscored the importance of timely filing of claims and the stringent requirements for extensions under the statutory limitation period. The dismissal of the proceedings highlighted the need for clear and convincing justification for any delays in initiating legal action. The plaintiff was ordered to bear the costs of the defendant, reflecting the court's view that the application and the subsequent claim were not warranted.

Orders

Orders of the court

The notice of motion filed 16/04/18 is dismissed. The statement of claim filed 4 April 2018 is dismissed. I order the plaintiff to pay defendant's costs of the proceedings.

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:	Penney v Morris [2018] NSWDC 466
Hearing dates:	15 – 16 May 2018
Date of orders:	16 May 2018
Decision date:	16 May 2018
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	The notice of motion filed 16/04/18 is dismissed. The statement of claim filed 4 April 2018 is dismissed. I order the plaintiff to pay defendant's costs of the proceedings.
Catchwords:	TORTS – MOTOR ACCIDENTS CLAIM – 3 YEAR LIMITATION PERIOD – motor vehicle accident on 27 August 2010 – proceedings commenced 4 April 2018 – application by plaintiff nunc pro tunc to commence proceedings – whether plaintiff’s explanation was satisfactory whether plaintiff needed a tutor – whether plaintiff established the monetary threshold
Legislation Cited:	Civil Procedure Act 2005 Felons (Civil Proceedings) Act 1981 Guardianship Act 1987 Limitation Act (1969) Mental Health Act 2007 Motor Accidents Act 1988 Motor Accidents Compensation Act 1999 Trustee and Guardian Act 2009 (NSW) Uniform Civil Procedure Rules 2005
Cases Cited:	Lyu v Jeon [2012] NSWCA 446 Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 State of New South Wales v Harlum [2007] NSWCA 124 Walker v Howard [2009] NSWCA 408: (2009) 78 NSWLR 161: (2009) 55 MVR 9,
Category:	Procedural and other rulings
Parties:	Wayne John Penney (Applicant) Leah Morris (Respondent)
Representation:	Counsel: Mr R Foord (Applicant) Mr K Rewell SC (Respondent) Solicitors: Denniston & Day Lawyers (Applicant) Holman Webb Lawyers (Respondent)
File Number(s):	2018/00104611
Publication restriction:	Nil