Phoebe Orilla v Brian Chown

[2013] NSWDC 226

District Court

New South Wales

Medium Neutral Citation:	Phoebe Orilla v Brian Chown [2013] NSWDC 226
Hearing dates:	24 October 2013
Decision date:	22 November 2013
Before:	Letherbarrow SC DCJ
Decision:	Leave granted pursuant to s109 of the Motor Accidents Compensation Act, 1999
Catchwords:	Full and satisfactory explanation - reasonable person in the position of the claimant - solicitor's conduct - damages of all kinds likely to be awarded - prejudice
Legislation Cited:	Motor Accidents Compensation Act,1999 s66, s109
Cases Cited:	Walker v Howard [2009] NSWCA 408, Lyu v Jeon [2012] NSWCA 446, Russo v Aiello [2003] HCA 53, Smith v Grant [2006] NSWCA 244, Khoury v Linfox Australia Pty Ltd [2006] NSWCA 51, Holt v Wynter [2000] NSWCA 143, Sauer v Allianz Australia Insurance Ltd [2006] NSWCA 314, Sinclair v Darwich [2010] NSWCA 195, Eades v Gunestepe [2012] NSWCA 204
Category:	Interlocutory applications
Parties:	Plaintiff: Phoebe Orilla Defendant: Brian Chown
Representation:	Plaintiff: Mr Goodridge Defendant: Mr Ronzani Plaintiff: Monaco Solicitors Defendant: Lee and Lyons Lawyers
File Number(s):	2012/255676

Judgment

Introduction

1. By her notice of motion filed 12 September 2012, the plaintiff seeks to leave pursuant to section 109 of the Motor Accidents Compensation Act, 1999, (MACA) "to commence and continue" proceedings against the defendant in relation to injuries she sustained in an accident which occurred on 17 March 2009.

1. As the terms of the motion would indicate, the plaintiff commenced proceedings in relation to such accident by filing a statement of claim on 16 August last which has since been amended in ways not relevant to the current motion. In it, the plaintiff pleads that on the abovementioned date at about 5:30pm, she was stationary in a motor vehicle on Hoskins Street at Temora "having just reversed from a parking space and (was) preparing to move off", when her vehicle was struck from behind by the vehicle being driven by the defendant.

1. The leave sought was opposed by the defendant for whom Mr Ronzani, of counsel, appeared. Mr Goodridge, of counsel, appeared for the plaintiff.

The Nature of the Evidence

1. The plaintiff relied upon 4 affidavits. An affidavit sworn 5 October 2012 by Mr Stephen Morgan, a solicitor then employed by the plaintiff's current solicitors, Monaco Solicitors, became exhibit A. Two affidavits, affirmed 3 May and 14 August 2013, from Ms Sarah Jane Layton, solicitor, who took over the conduct of the plaintiff's matter after Mr Morgan left the firm, became exhibits B1 and B2 respectively. An affidavit from the plaintiff herself, sworn 30 April 2013, became exhibit C.

1. In addition, Mr Goodridge tendered the following documents:

(i)   A medical report from Dr Ian Barrett, Orthopaedic Surgeon, whom examined the plaintiff on 11 March 2013 at the request of Curwoods Lawyers, the defendant's solicitors in relation to her earlier 2004 motor accident mentioned below (exhibit D).

(ii)   Certain progress notes from the practice of the plaintiff's general practitioners relevant to her attendance thereat between 1999 and 2011 (exhibit E).

(iii)   A…