Philp v Nominal Defendant - [2017] NSWDC 223

District Court

New South Wales

Medium Neutral Citation: Philp v Nominal Defendant [2017] NSWDC 223
Hearing dates: 28 July 2017
Date of orders: 25 August 2017
Decision date: 25 August 2017
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
1. Pursuant to s 109 of the Motor Accidents Compensation Act 1999, the plaintiff is granted leave to continue the present proceedings against the defendant;

2. The question of whether there has been due inquiry and search as required by s 34 of the Motor Accidents Compensation Act is stood over to be determined at the ultimate trial of the proceedings;

3. The defendant’s notice of motion filed on 26 April 2017 is dismissed;

4. The defendant is to pay the plaintiff’s costs of the dismissed motion on the ordinary basis unless otherwise ordered;
5. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords: LIMITATION OF ACTIONS – plaintiff is entitled to a grant of leave to continue the present proceedings – whether the proceedings should be dismissed on account of defendant’s claim of unsatisfactory explanation for delay; PRACTICE AND PROCEDURE – issue of due inquiry and search to be determined at the trial
Legislation Cited: Motor Accidents Compensation Act 1999, s 34, s 66, s 72, s 73, s 109
Workers’ Compensation Act 1987
Cases Cited: Figliuzzi v Yonan [2005] NSWCA 290
Nominal Defendant v Browne [2013] NSWCA 197
Smith v Grant [2006] NSWCA 244
Category: Principal judgment
Parties: Gail Philp (Plaintiff)
Nominal Defendant (Defendant)
Representation:
Counsel:
Mr M Cleary (Plaintiff)
Ms J Gumbert (Defendant)
Solicitors:
Law Partners (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2017/65617
Publication restriction: None

JUDGMENT

Notices of motion

These two notices of motion arise for determination in the context of a claim for damages for personal injury arising from a motor vehicle accident which occurred on 20 October 2009, and to which the provisions of the Motor Accidents Compensation Act 1999 [“MAC Act”], apply.
The first motion, filed by the defendant on 26 April 2017, pursuant to s 34, s 72, s 73 and s 109 of that Act, respectively, seeks a dismissal of the plaintiff’s present proceedings for alleged failure by the plaintiff to comply with the statutory requirement of due inquiry and search, and an alleged failure by the plaintiff to comply with timing and delay explanation requirements of those statutory provisions.
The second motion, filed by the plaintiff, pursuant to leave granted at the commencement of the hearing of the first motion on 28 July 2017, seeks, pursuant to s 109 of that Act, leave for the plaintiff to maintain the present proceedings.

Evidence on these applications

The defendant relied upon the affidavit of Ms Anne-Maree Williams, sworn on 26 April 2017, and also on the voluminous affidavit of the plaintiff’s solicitor, Michelle Cheong sworn on 14 June 2017. Those affidavits attached relevant documents, including an application for workers’ compensation in relation to the subject accident and signed by the plaintiff on 21…

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 Philp v Nominal Defendant

Details

AGLC: Philp v Nominal Defendant [2017] NSWDC 223
Case: [2017] NSWDC 223
Decision Date: 25 August 2017

CaseChat Overview and Summary

The case of Philp v Nominal Defendant was heard before the court, where the plaintiff sought to continue proceedings against the defendant under section 109 of the Motor Accidents Compensation Act 1999. The defendant opposed the application, arguing that the plaintiff had not provided a satisfactory explanation for the delay in instituting the proceedings. The court was required to determine whether the plaintiff was entitled to leave to continue the proceedings and, if so, whether the proceedings should be dismissed due to the unsatisfactory explanation for the delay. Additionally, the court needed to decide on the issue of due inquiry and search required by section 34 of the Act, which was to be determined at the trial.

The court examined the evidence and submissions presented by both parties. In relation to the plaintiff's entitlement to leave to continue the proceedings, the court found that the plaintiff had demonstrated sufficient grounds for the delay and thus was entitled to the grant of leave. The court acknowledged that the plaintiff had acted reasonably in the circumstances, and therefore, the proceedings should not be dismissed on account of the unsatisfactory explanation for the delay. Regarding the issue of due inquiry and search, the court determined that it was a matter to be resolved at the trial, as it required a detailed examination of the facts and circumstances of the case.

The court dismissed the defendant's notice of motion, which was filed on 26 April 2017, and ordered that the defendant pay the plaintiff's costs of the dismissed motion on the ordinary basis unless otherwise ordered. The court granted liberty to apply on seven days' notice if further or other orders were required. The final orders included the grant of leave to the plaintiff to continue the proceedings, standing over the issue of due inquiry and search to be determined at the ultimate trial, dismissal of the defendant's motion, and the direction for the defendant to pay the plaintiff's costs.

In conclusion, the court found in favour of the plaintiff and granted leave to continue the proceedings, while deferring the determination of due inquiry and search to the trial. The defendant's motion was dismissed, and the defendant was ordered to pay the plaintiff's costs. The court also granted liberty to apply for further or other orders if necessary.

Orders

Orders of the court

1. Pursuant to s 109 of the Motor Accidents Compensation Act 1999, the plaintiff is granted leave to continue the present proceedings against the defendant;

2. The question of whether there has been due inquiry and search as required by s 34 of the Motor Accidents Compensation Act is stood over to be determined at the ultimate trial of the proceedings;

3. The defendant’s notice of motion filed on 26 April 2017 is dismissed;

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

5. Liberty to apply on 7 days’ notice if further or other orders are required.

Background

Background to the litigation

Full text does not contain this section.

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:	Philp v Nominal Defendant [2017] NSWDC 223
Hearing dates:	28 July 2017
Date of orders:	25 August 2017
Decision date:	25 August 2017
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	1. Pursuant to s 109 of the Motor Accidents Compensation Act 1999, the plaintiff is granted leave to continue the present proceedings against the defendant; 2. The question of whether there has been due inquiry and search as required by s 34 of the Motor Accidents Compensation Act is stood over to be determined at the ultimate trial of the proceedings; 3. The defendant’s notice of motion filed on 26 April 2017 is dismissed; 4. The defendant is to pay the plaintiff’s costs of the dismissed motion on the ordinary basis unless otherwise ordered; 5. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords:	LIMITATION OF ACTIONS – plaintiff is entitled to a grant of leave to continue the present proceedings – whether the proceedings should be dismissed on account of defendant’s claim of unsatisfactory explanation for delay; PRACTICE AND PROCEDURE – issue of due inquiry and search to be determined at the trial
Legislation Cited:	Motor Accidents Compensation Act 1999, s 34, s 66, s 72, s 73, s 109 Workers’ Compensation Act 1987
Cases Cited:	Figliuzzi v Yonan [2005] NSWCA 290 Nominal Defendant v Browne [2013] NSWCA 197 Smith v Grant [2006] NSWCA 244
Category:	Principal judgment
Parties:	Gail Philp (Plaintiff) Nominal Defendant (Defendant)
Representation:	Counsel: Mr M Cleary (Plaintiff) Ms J Gumbert (Defendant) Solicitors: Law Partners (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2017/65617
Publication restriction:	None