Terry Elvey v Phillip McLennan - [2021] NSWDC 103

District Court

New South Wales

Medium Neutral Citation: Terry ELVEY v Phillip MCLENNAN [2021] NSWDC 103
Hearing dates: 26 March 2021
Date of orders: 1 April 2021
Decision date: 01 April 2021
Jurisdiction: Civil
Before: Priestley SC, DCJ
Decision:
See [50 - 53] - Leave of the Court to commence proceedings more than 3 years after the incident must not be granted. The plaintiff’s summons is dismissed, and to the extent that the recently filed statement of claim may be valid, it is dismissed.

Catchwords:
CIVIL PROCEDURE — Commencement of proceedings — Leave to commence action

Legislation Cited:
Motor Accidents Compensation Act 1999 (NSW)

Cases Cited:
Hodgson v Crane (2002) 55 NSWLR 199
Maharmeh [2021] NSWCA 31
Rahman v Al-Maharmeh [2021] NSWCA 31

Texts Cited:
Nil

Category: Principal judgment
Parties: Elvey (Plaintiff)
McLennan (Defendant)
Representation:
Elvey Selp Represented.
Ryan Counsell for the Defendant

File Number(s): 2020/00157429
Publication restriction: Unrestricted

Judgement

Before the Court is a Summons seeking leave to commence proceedings in respect of a claim under the Motor Accidents Compensation Act (“MACA”) more than 3 years after the date of the motor accident to which the claim relates.
It assists to set out some background to the matter. The “motor accident” itself is a contentious term from the plaintiff’s point of view (hereafter referred to as “the incident”). The plaintiff alleges that by the incident on 4 July 2017, he was in fact assaulted by the defendant by use of the motor vehicle, which was an excavator, described by the plaintiff as being of 20 tonnes. The location of the incident was at the construction site of a correctional centre near Grafton, and the plaintiff was protesting its construction.
By a text message from the plaintiff to the defendant or his workplace dated 26 September 2017, the plaintiff gave notice of his intention to seek damages for the incident.
Soon after, seemingly still in September, the defendant replied saying the details had been passed on.
There the matter seems to have rested for some time. The plaintiff relies on a report of Dr Kinny, orthopaedic surgeon dated 17 June 2019, and a report of Dr Garg, psychiatrist dated 26 July 2019, with the assessment dates for those reports being 11 June 2019 and 15 July 2019 respectively.
By letters dated 18 July 2019 solicitors acting for the plaintiff, MJO Legal, wrote to Foote Law solicitors for the defendant seeking registration details of the excavator, to Dr Cram, the plaintiff’s GP, and prepared a motor accident claim form, which appears to have been lodged.
On 2 August 2019 Foote Law informed MJO Legal of the registration details.
On 6 September 2019 MJO Legal sent a bill to the plaintiff showing the cost of the medical reports was outstanding.
A statement of claim was filed by the plaintiff on 30 April 2020.
By letter dated 6 July 2020 (that is, 2 months after the filing of the initial statement of claim and 2 days after the expiration of the period of…

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.

Keep reading for free

Create a free CaseChat account to read Terry Elvey v Phillip McLennan and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWDC 103
Decision Date: 01 April 2021

CaseChat Overview and Summary

Terry Elvey brought an action against Phillip McLennan in the Federal Circuit and Family Court of Australia, seeking damages for injuries allegedly caused by McLennan's negligence. The primary issue in this case was whether Elvey was entitled to commence proceedings more than three years after the incident occurred, a period exceeding the statutory limitation period. The court had to determine if the delay was justifiable and whether the plaintiff could be granted leave to commence the action outside the statutory time frame.

The court examined the statutory provisions governing the limitation period and considered the principles of equity in relation to the delay. It evaluated the reasons provided by Elvey for the delay, including the length of time that had passed and the potential prejudice to McLennan if the action was allowed to proceed. The court noted that while there are circumstances under which a court may grant leave to commence proceedings beyond the limitation period, the delay in this case was significant, and the plaintiff had not provided compelling reasons to warrant such an extension. The court also considered the potential prejudice to the defendant, which would increase with the passage of time.

Based on the above considerations, the court concluded that the delay was not sufficiently justified to warrant an extension of the limitation period. Consequently, the court dismissed Elvey's summons and the recently filed statement of claim to the extent it might be valid. The court emphasised that the statutory limitation periods are in place to protect defendants from the risk of having to defend stale claims and to ensure that evidence remains as fresh as possible. The plaintiff's leave to commence the action was denied, and the summons and any potentially valid statement of claim were dismissed.

Orders

Orders of the court

See [50 - 53] - Leave of the Court to commence proceedings more than 3 years after the incident must not be granted. The plaintiff’s summons is dismissed, and to the extent that the recently filed statement of claim may be valid, it is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Terry ELVEY v Phillip MCLENNAN [2021] NSWDC 103
Hearing dates:	26 March 2021
Date of orders:	1 April 2021
Decision date:	01 April 2021
Jurisdiction:	Civil
Before:	Priestley SC, DCJ
Decision:	See [50 - 53] - Leave of the Court to commence proceedings more than 3 years after the incident must not be granted. The plaintiff’s summons is dismissed, and to the extent that the recently filed statement of claim may be valid, it is dismissed.
Catchwords:	CIVIL PROCEDURE — Commencement of proceedings — Leave to commence action
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Hodgson v Crane (2002) 55 NSWLR 199 Maharmeh [2021] NSWCA 31 Rahman v Al-Maharmeh [2021] NSWCA 31
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Elvey (Plaintiff) McLennan (Defendant)
Representation:	Elvey Selp Represented. Ryan Counsell for the Defendant
File Number(s):	2020/00157429
Publication restriction:	Unrestricted