Taha v Kunarsegaran - [2016] NSWDC 283

District Court

New South Wales

Medium Neutral Citation: Taha v Kunarsegaran [2016] NSWDC 283
Hearing dates: 20 and 21 October 2016
Date of orders: 24 October 2016
Decision date: 24 October 2016
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1)   Dismiss the defendant’s notice of motion filed 5 February 2016.
(2) Grant leave under s 109 of the Motor Accidents Compensation Act 1999 for the plaintiff to commence proceedings more than 3 years after the relevant motor vehicle accident.
(3)   Order:
(a)   the costs of the hearing over 2 days to be the defendant’s costs in the proceedings,
(b)   otherwise, the cost of the summons and the notice of motion to be costs in the proceedings.
(4)   List the matter for directions on Monday, 28 November 2016 at 10am before the Judicial Registrar.
(5)   Order that the exhibits be retained.

Catchwords: MOTOR ACCIDENT COMPENSATION – late claim – late commencement of proceedings – limitation period – expiration of time limit – delay – full and satisfactory explanation – explanation to the court - discretion
Legislation Cited: Interpretation Act 1987, s 36
Motor Accidents Compensation Act 1999, s 66, s 72, s 73, s 109
Cases Cited: Buller v Black [2003] NSWCA 45
Ellis v Reko Pty Limited [2010] NSWCA 319
Hickey's Transport Pty Limited v Ken Gordon [2008] NSWCA 167
Holt v Wynter (2000) 49 NSWLR 128
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Category: Procedural and other rulings
Parties: Sallyann Taha (plaintiff)
Dinesh Kunarsegaran (defendant)
Representation:
Counsel:
Mr C Stewart (plaintiff)
Mr D Wilson SC and Mr N Hogan (defendant)
Solicitors:
Thomas Booler Lawyers (plaintiff)
Hall & Wilcox (defendant)

File Number(s): 2015/352856
Publication restriction: None

Judgment

A. INTRODUCTION

Sallyann Taha was injured in a motor vehicle accident on 1 July 2012, made no claim until 28 January 2015 and commenced proceedings on 5 December 2015. The defendant’s insurer has denied the claim.

B. APPLICATIONS AND ISSUES

Ms Taha seeks leave to commence proceedings more than three years after the accident. The insurer seeks to have the proceedings dismissed for her failure to provide a satisfactory explanation for the delay in making a claim. It also resists leave being granted because of Ms Taha’s alleged failure to provide a full and satisfactory explanation for the delay in commencing proceedings and because the total likely damages do not reach the threshold for leave to be granted.

C. THE LATE CLAIM

(a) THE LEGISLATION

Section 72 of the Motor Accidents Compensation Act 1999 (“MACA”) provides that a claim must be made by notice to the insurer (s 72(2) MACA) within six months of the date of the motor accident (s 72(1) MACA) although a claim can be made after this date if the claimant provides a full and satisfactory explanation to the insurer for the delay in making the claim (s 73(1) MACA). If court proceedings are commenced after a late claim, the insurer may apply to…

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 Taha v Kunarsegaran

Details

AGLC: Taha v Kunarsegaran [2016] NSWDC 283
Case: [2016] NSWDC 283
Decision Date: 24 October 2016

CaseChat Overview and Summary

The matter before the court involved a dispute between the plaintiff, Taha, and the defendant, Kunarsegaran, concerning a motor accident compensation claim. The plaintiff sought to have the court grant leave to commence proceedings more than three years after the accident occurred. The defendant opposed this application, arguing that the plaintiff had failed to provide a full and satisfactory explanation for the delay in making the claim. The case was heard in the District Court of New South Wales.

The legal issues that the court was required to decide included whether the plaintiff had provided a full and satisfactory explanation for the delay in making the claim, and whether the court should exercise its discretion under section 109 of the Motor Accidents Compensation Act 1999 to allow the plaintiff to commence proceedings outside the limitation period. The court had to consider the nature and extent of the delay, the reason for the delay, and whether the plaintiff had acted reasonably and with due diligence in making the claim.

The court found that the plaintiff had provided a full and satisfactory explanation for the delay in making the claim. The plaintiff had suffered from depression and anxiety, which had impacted their ability to make the claim in a timely manner. The court accepted that the plaintiff had acted reasonably and with due diligence in making the claim, and that the delay was not due to any fault or neglect on their part. The court exercised its discretion under section 109 of the Motor Accidents Compensation Act 1999 to allow the plaintiff to commence proceedings outside the limitation period.

The court dismissed the defendant's notice of motion and granted leave for the plaintiff to commence proceedings. The court ordered that the costs of the hearing over two days be the defendant's costs in the proceedings, and that otherwise, the cost of the summons and the notice of motion be costs in the proceedings. The matter was listed for directions on 28 November 2016 at 10 am before the Judicial Registrar, and the exhibits were ordered to be retained.

Orders

Orders of the court

(1) Dismiss the defendant’s notice of motion filed 5 February 2016.

(2) Grant leave under s 109 of the Motor Accidents Compensation Act 1999 for the plaintiff to commence proceedings more than 3 years after the relevant motor vehicle accident.

(3) Order:

(a) the costs of the hearing over 2 days to be the defendant’s costs in the proceedings,

(b) otherwise, the cost of the summons and the notice of motion to be costs in the proceedings.

(4) List the matter for directions on Monday, 28 November 2016 at 10am before the Judicial Registrar.

(5) Order that the exhibits be retained.

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:	Taha v Kunarsegaran [2016] NSWDC 283
Hearing dates:	20 and 21 October 2016
Date of orders:	24 October 2016
Decision date:	24 October 2016
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Dismiss the defendant’s notice of motion filed 5 February 2016. (2) Grant leave under s 109 of the Motor Accidents Compensation Act 1999 for the plaintiff to commence proceedings more than 3 years after the relevant motor vehicle accident. (3) Order: (a) the costs of the hearing over 2 days to be the defendant’s costs in the proceedings, (b) otherwise, the cost of the summons and the notice of motion to be costs in the proceedings. (4) List the matter for directions on Monday, 28 November 2016 at 10am before the Judicial Registrar. (5) Order that the exhibits be retained.
Catchwords:	MOTOR ACCIDENT COMPENSATION – late claim – late commencement of proceedings – limitation period – expiration of time limit – delay – full and satisfactory explanation – explanation to the court - discretion
Legislation Cited:	Interpretation Act 1987, s 36 Motor Accidents Compensation Act 1999, s 66, s 72, s 73, s 109
Cases Cited:	Buller v Black [2003] NSWCA 45 Ellis v Reko Pty Limited [2010] NSWCA 319 Hickey's Transport Pty Limited v Ken Gordon [2008] NSWCA 167 Holt v Wynter (2000) 49 NSWLR 128 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Category:	Procedural and other rulings
Parties:	Sallyann Taha (plaintiff) Dinesh Kunarsegaran (defendant)
Representation:	Counsel: Mr C Stewart (plaintiff) Mr D Wilson SC and Mr N Hogan (defendant) Solicitors: Thomas Booler Lawyers (plaintiff) Hall & Wilcox (defendant)
File Number(s):	2015/352856
Publication restriction:	None