Rahman v Al-Maharmeh

The appeal concerned an interlocutory decision of the District Court of New South Wales that refused the appellant, Samar Abdul Rahman, leave to commence proceedings out of time under section 109 of the *Motor Accidents Compensation Act 1999* (NSW). The respondent was Sarah Al-Maharmeh. The refusal of leave meant that the appellant's claim for damages arising from a motor accident was effectively dismissed.

The primary legal issues before the Court of Appeal were whether the District Court judge erred in refusing leave to commence proceedings out of time, and whether the appellant had provided a full and satisfactory explanation for the delay, particularly given that the delay was attributable to her solicitors. The court also considered whether the total damages likely to be awarded, if the claim succeeded, would not be less than 25% of the maximum amount awardable for non-economic loss, and the proper calculation of future domestic assistance.

The Court of Appeal found that the District Court judge had erred in refusing leave. The court held that the delay, while significant, was adequately explained by the conduct of the appellant's solicitors. The court also determined that the appellant had established that the likely total damages would meet the threshold required by section 109(2)(b) of the Act, noting that the calculation of future domestic assistance was a matter for the trial judge. Consequently, the Court of Appeal granted leave to commence proceedings nunc pro tunc. The court also directed that submissions be made regarding wasted costs, specifically concerning potential orders under section 99 of the *Civil Procedure Act 2005* (NSW) in relation to the conduct of the appellant's solicitors.