Vorillas v Haratsaris

[2005] NSWCA 109

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Vorillas v Haratsaris [2005]  NSWCA 109

FILE NUMBER(S):
CA 40397/04

HEARING DATE(S):               23/03/05

JUDGMENT DATE: 12/04/2005

PARTIES:
Con Vorillas - Claimant
Theo Haratsaris - Opponent

JUDGMENT OF:       Ipp JA Brownie AJA    

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 4168/03

LOWER COURT JUDICIAL OFFICER:     McLoughlin DCJ

COUNSEL:
Mr W M Fitzsimmons - Claimant
Mr B Ferrari - Opponent

SOLICITORS:
Moray & Agnew - Claimant
Bechara & Co - Opponent

CATCHWORDS:
Motor Accidents Act - full and satisfactory explanation for delay

LEGISLATION CITED:
Motor accidents Act 1988 ss 40-67

DECISION:
1. Leave to appeal granted. 2.         Appeal allowed. 3.Orders made by McLoughlin DCJ on 11 May 2004 set aside. 4.In lieu thereof, order that the application made by Mr Haratsaris by notice of motion filed on 9 September 2003 be dismissed with costs. 5. Order that Mr Haratsaris pay the costs of Mr Vorillas on the present application and appeal. 6. Mr Haratsaris to have a certificate under the Suitors' Fund Act 1951.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40397/04
DC 4168/03

IPP JA
BROWNIE AJA

Tuesday 12 April 2005

CON VORILLAS v THEO HARATSARIS

Judgment

1. IPP JA:  I agree with Brownie AJA.

2. BROWNIE AJA: Mr Vorillas seeks leave to appeal from a decision of McLoughlin DCJ, granting to Mr Haratsaris leave under s52(4) of the Motor Accidents Act 1988 (the Act) to commence proceedings for damages for personal injuries sustained in a motor accident that occurred on 29 August 1999. Section 52 of the Act requires such an action to be commenced within three years of the accident, unless by leave. Section 52(4B) provides that this leave “must not be granted unless … the claimant provides a full and satisfactory explanation to the court for the delay”, and s40(2) provides:

   “In this Part, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.”

3. Part 5 of the Act comprises sections 40-67. Section 42 requires a claimant to ensure that a written report of the accident is made to a member of the Police Force within 28 days after the date of the accident, and if this is not done, then the claimant must provide a full and satisfactory explanation to the court for the non-compliance. Sections 43 and 43A require a claimant to make a claim within six months of the accident, and if this is not done, to provide a full and satisfactory explanation for the delay in making the claim. Section 48 requires a claimant…