Taylor v Chown

[2010] NSWDC 63

CITATION:	Taylor v Chown [2010] NSWDC 63
HEARING DATE(S):	19 January and 23 April 2010
JUDGMENT DATE:	28 April 2010
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Pursuant to s 109(1) of the Motor Accidents Compensation Act 1999 the plaintiff is given leave to commence proceedings out of time; 2. The time for the commencement of the proceedings is extended to 23 May 2010; 3. These proceedings are to be listed and heard together with District Court proceedings numbered 2556 of 2009; 4. The plaintiff is to pay the defendant’s costs of the summons seeking leave to proceed, such costs to be deferred until the conclusion of the proceedings; 5. The exhibits may be returned; 6. Liberty to apply on 7 days notice if further orders are required.
CATCHWORDS:	LIMITATION OF ACTION – Motor Accidents Compensation Act 1999 – whether full and satisfactory explanation provided for delay in pursuing claim – whether requirements of s 109(3)(a) and (b) are satisfied – whether the defendant has established significant prejudice justifying refusal of grant of leave to proceed
LEGISLATION CITED:	Motor Accidents Compensation Act 1999, s 109(3)(a) and (b)
CASES CITED:	Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Campbell v United Pacific Transport Ltd [1966] Qd R 465 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Commonwealth of Australia v Smith [2005] NSWCA 478 Harika v Tupaea [2003] NSWCA 332 Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 Mason v Demasi [2009] NSWCA 227 Smith v Grant [2006] NSWCA 244 South Western Area Health Service v Gabriel [2001] NSWCA 477 Sydney City Council v Zegarac (1998) 43 NSWLR 195 The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 Walker v Howard [2009] NSWCA 408
PARTIES:	Raylene Helen Taylor (Plaintiff) Philip Chown (Defendant)
FILE NUMBER(S):	3175 of 2009
COUNSEL:	Mr A Canceri (Plaintiff) Mr J Guihot (Defendant)
SOLICITORS:	CMC Lawyers (Plaintiff) TL Lawyers (Defendant)

JUDGMENT

Nature of case

1. This is an application brought by the plaintiff pursuant to s 109(1) of the Motor Accidents Compensation Act 1999 (“MAC Act”) by which leave is sought to commence proceedings beyond the statutory 3 year limitation period.

2. The plaintiff has been involved in two motor vehicle collisions, the first being on 16 August 2003 and the second being on 20 October 2005.

3. This application is concerned with the first incident that occurred on 16 August 2003. The defendant in the proceedings arising from the second incident took no part in these proceedings.

Procedural history

4. The summons seeking leave to proceed was filed on 20 July 2009. The proceedings were listed for call-over on 30 October 2009, at which time a hearing date for the summons was allocated for 19 January 2010. On that date the plaintiff was not available for cross-examination on her affidavit due to late notice having been given by the defendant to require her attendance. The hearing was therefore stood…