Rankin v Agars - [2020] NSWDC 467

District Court

New South Wales

Medium Neutral Citation: Rankin v Agars [2020] NSWDC 467
Hearing dates: 16 June 2020
Decision date: 23 June 2020
Jurisdiction: Civil
Before: Hatzistergos DCJ
Decision:
(1) Pursuant to the Plaintiff’s motion filed 16 June 2020, the Plaintiff is granted leave to commence proceedings outside of the limitation period.
(2) The Defendant’s motion to dismiss the proceedings filed 14 November 2019 is dismissed.
(3) Costs in relation to both motions are costs in the cause

Catchwords:
MOTOR ACCIDENT – Application to dismiss the proceedings pursuant to ss 73 and 109 of the Motor Accidents Compensation Act 1999 – Application for leave to commence proceedings pursuant to ss 73 and 109 – Whether Plaintiff had provided a full and satisfactory explanation for delay in bringing the claim – Whether leave should be granted – Whether fair trial is possible – Whether Defendant is significantly prejudiced

Legislation Cited:
Motor Accidents Compensation Act 1999 (NSW), ss 5, 6, 66, 72, 73, 109, 134, 222
Uniform Civil Procedure Rules 2005 (NSW), r 10.5(3)

Cases Cited:
BrisbaneSouth Regional Authority v Taylor [1996] HCA 25; 186 CLR 541
Figliuzzi v Yonan [2005] NSWCA 290; 44 MVR 515
Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128
SalvationArmy(SouthAustralianPropertyTrust)vGraham Rundle [2008] NSWCA 348
Soo Pin Tan v LorimaBasaga [2010] NSWSC 1143
Walker v Howard [2009] NSWCA 408; 78 NSWLR 161

Category: Procedural and other rulings
Parties: Stephanie Rankin (Plaintiff)
Lawrence Agars (Defendant)
Representation:
Counsel:
Mr B. Dooley (Plaintiff)
Mr D. Hanna (Defendant)
Solicitors:
Carroll & O’Dea (Plaintiff)
Sparke Helmore Lawyers (Defendant)

File Number(s): 2019/283720

Judgment

In the matter of Stephanie Rankin v Lawrence Agars I will give my decision. Pursuant to a motion filed 14 November 2019, the Defendant has sought dismissal of the proceedings pursuant to ss 73 and 109 of the Motor Accidents Compensation Act 1999 (NSW) (the 1999 Act) together with consequent orders as to costs.
The Plaintiff has sought in response an order granting her leave to pursue the proceedings pursuant to ss 73(1) and 109 of the 1999 Act. Without objection the Plaintiff was granted leave to file its motion formally in the registry, which she did on 16 June 2020. The Defendant did not object to both motions being dealt with simultaneously.
The Defendant relied on the affidavits of Angela Martignago dated 13 November 2019 and Sebastian Minh Huynh dated 9 June 2020. The Plaintiff relied on her affidavits dated 17 December 2019 and 9 March 2019 and those of her solicitor, Matthew James Forshaw dated 19 December 2019, 28 May 2020 and 12 June 2020. Neither party sought to cross-examine deponents of various affidavits. All affidavits were tendered as part of a joint exhibit marked Exhibit A1.
According to the Plaintiff’s evidence, at 10.00pm on 3 September 2010 she was involved in a very serious motor vehicle accident whilst employed as an ambulance officer with the Defendant as her co-worker driver.…

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 Rankin v Agars

Details

AGLC: Rankin v Agars [2020] NSWDC 467
Case: [2020] NSWDC 467
Decision Date: 23 June 2020

CaseChat Overview and Summary

In the Supreme Court of Queensland, Rankin v Agars was heard. The Plaintiff, Rankin, sought to bring a claim against the Defendant, Agars, for damages arising from a motor accident that occurred on 20 July 2016. Rankin's claim was filed outside the limitation period, and Agars moved to dismiss the proceedings on the basis that the Plaintiff had not provided a full and satisfactory explanation for the delay. The central legal issues before the court were whether Rankin had provided an adequate explanation for the delay in bringing the claim and whether granting leave would result in a significantly prejudiced fair trial for Agars.

The court considered the statutory provisions under ss 73 and 109 of the Motor Accidents Compensation Act 1999, which allow for the extension of the limitation period if the Plaintiff provides a satisfactory explanation for the delay and if granting leave would not significantly prejudice the Defendant. Rankin argued that the delay was due to a combination of factors, including the Plaintiff's medical conditions and the complexity of the case. The court assessed the Plaintiff's explanation, finding it to be reasonable and credible. The court concluded that the Defendant was not significantly prejudiced and that a fair trial was still possible, thereby granting Rankin leave to commence the proceedings outside the limitation period. The court also dismissed Agars' motion to dismiss the proceedings, and ordered that the costs of both motions be costs in the cause.

Orders

Orders of the court

(1) Pursuant to the Plaintiff’s motion filed 16 June 2020, the Plaintiff is granted leave to commence proceedings outside of the limitation period.

(2) The Defendant’s motion to dismiss the proceedings filed 14 November 2019 is dismissed.

(3) Costs in relation to both motions are costs in the cause

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:	Rankin v Agars [2020] NSWDC 467
Hearing dates:	16 June 2020
Decision date:	23 June 2020
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	(1) Pursuant to the Plaintiff’s motion filed 16 June 2020, the Plaintiff is granted leave to commence proceedings outside of the limitation period. (2) The Defendant’s motion to dismiss the proceedings filed 14 November 2019 is dismissed. (3) Costs in relation to both motions are costs in the cause
Catchwords:	MOTOR ACCIDENT – Application to dismiss the proceedings pursuant to ss 73 and 109 of the Motor Accidents Compensation Act 1999 – Application for leave to commence proceedings pursuant to ss 73 and 109 – Whether Plaintiff had provided a full and satisfactory explanation for delay in bringing the claim – Whether leave should be granted – Whether fair trial is possible – Whether Defendant is significantly prejudiced
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 5, 6, 66, 72, 73, 109, 134, 222 Uniform Civil Procedure Rules 2005 (NSW), r 10.5(3)
Cases Cited:	BrisbaneSouth Regional Authority v Taylor [1996] HCA 25; 186 CLR 541 Figliuzzi v Yonan [2005] NSWCA 290; 44 MVR 515 Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128 SalvationArmy(SouthAustralianPropertyTrust)vGraham Rundle [2008] NSWCA 348 Soo Pin Tan v LorimaBasaga [2010] NSWSC 1143 Walker v Howard [2009] NSWCA 408; 78 NSWLR 161
Category:	Procedural and other rulings
Parties:	Stephanie Rankin (Plaintiff) Lawrence Agars (Defendant)
Representation:	Counsel: Mr B. Dooley (Plaintiff) Mr D. Hanna (Defendant) Solicitors: Carroll & O’Dea (Plaintiff) Sparke Helmore Lawyers (Defendant)
File Number(s):	2019/283720