Stratton v Kairouz

CITATION:	Stratton v Kairouz [2009] NSWDC 7
HEARING DATE(S):	29 January 2009
JUDGMENT DATE:	2 February 2009
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. The Plaintiff is granted leave for an extension of time to 7 August 2008 for the commencement of her claim against the Defendant. 2. The Plaintiff is to pay the Defendant’s costs of the motion.
CATCHWORDS:	MOTOR ACCIDENTS ACT CLAIM – Application for extension of time – full and satisfactory explanation – delay influenced by death threat issued to Plaintiff by Defendant – effect of belief by Plaintiff that former Solicitor was proceeding with her claim.
LEGISLATION CITED:	Motor Accidents Act, 1999
CASES CITED:	Blackburn v Allianz Australia Insurance Ltd [2004] NSWCA 385; (2004) 61 NSWLR 632 Smith v Grant [2006] NSWCA 244 Khoury v Linfox Australia Pty Ltd [2006] NSWCA 51
PARTIES:	Lisa Stratton (Plaintiff) Rafic Kairouz (Defendant)
FILE NUMBER(S):	3628 of 2008
COUNSEL:	Mr K Andrews (Plaintiff) Mr A Black (Defendant)
SOLICITORS:	Keddies Lawyers (Plaintiff) Moray & Agnew (Defendant)

JUDGMENT

Introduction

1. The Plaintiff proceeds upon a Notice of Motion filed on 7 August 2008 seeking an extension of time in which to bring proceedings against the Defendant in respect of injuries she sustained in a motor vehicle collision that occurred on 23 July 2000 when the Plaintiff was a passenger in a motor vehicle being driven by the Defendant.

Applicable legislation

2. Section 109 of the Motor Accidents Compensation Act, 1999 requires that in the circumstances of this case the Plaintiff is not entitled to commence proceedings without the leave of the Court. Section 109(3)(a) provides that the Court must not grant leave to commence proceedings unless the Plaintiff provides a full and satisfactory explanation for the delay in commencing proceedings. Section 109(3)(a) is informed by section 66(2) in which a full and satisfactory explanation for delay is defined as one which a reasonable person in the position of the Plaintiff would have experienced. Section 109(3)(b) provides that the Plaintiff must also show that the amount of damages awardable to her is likely to be not less than 25% of the maximum amount that would have been awardable under Section 134 of the Act as at the date of injury. In this instance 25% of the applicable section 134 amount is $68,250.

Defendant’s concession concerning period of delay requiring explanation

3. The Defendant concedes that the relevant period of delay requiring explanation is the period between 15 July 2003 which was the date on which the Plaintiff appears to have last consulted her former solicitor, and 18 April 2007 which was the date on which she first consulted her present solicitors.

4. The materiality of these dates becomes apparent. Whereas since the latter date the pursuit of the procedural requirements of the claim has moved with appropriate despatch, it was argued that this was not the case for the period between 15 July 2003 and 18 April 2007.

Facts and circumstances

5. It becomes material to review…