Whitmore v Simon - [2021] NSWDC 137

District Court

New South Wales

Medium Neutral Citation: WHITMORE v SIMON [2021] NSWDC 137
Hearing dates: 19 MARCH 2021
Date of orders: 19 MARCH 2021
Decision date: 19 March 2021
Jurisdiction: Civil
Before: M Sidis ADCJ
Decision:
Orders:
(1)   The motion filed on behalf of the defendant on 20 December 2020 is dismissed.
(2)   The defendant is to pay the plaintiff's costs of the motion.
(3) On the plaintiff's application for leave to proceed, I grant leave pursuant to s 109 of the Motor Accidents Compensation Act nunc pro tunc to the plaintiff to commence proceedings out of time, noting that those proceedings were commenced on 1 October 2020.
(4)   The plaintiff is to pay the defendant's costs of that application.
(5)   By consent, I make orders in accordance with the consent orders, signed and dated 19 March 2021, noting that the matter will be listed for further directions on 10 August 2020.

Catchwords:
PERSONAL INJURY – motor accident – substantial period of delay– applications to dismiss and for leave to commence out of time – minor at time of accident – disadvantage – involvement of alcohol and joint illegal enterprise – serious injuries and disabilities.

Legislation Cited:
Motor Accidents Compensation Act 1999 ss 66(2), 109

Category: Procedural rulings
Parties: Plaintiff:
Frederick John Whitmore
Defendant:
Keenan Simon
Representation:
Counsel:
Plaintiff: Mr L Brazel
Defendant: Mr C Hart
Solicitors:
Plaintiff:
Slater and Gordon Lawyers
Defendant:
McCabe Curwood Pty Ltd

File Number(s): 2020/00283839
Publication restriction: nil

Judgment

Mr Frederick John Whitmore was injured in a motor vehicle accident that occurred on 20 December 2013 when he was 13 years old; he is now 20. His claim for damages for injuries suffered in the accident was forwarded to the insurer of the motor vehicle on 15 August 2019. On about 20 August 2019, an explanation for the delay in lodging the claim was provided to the insurer. The insurer advised the plaintiff's solicitor that it accepted the explanation on 28 February 2020. On 7 April 2020, the insurer advised that it denied liability for the claim. On 26 August 2020, the principal claims assessor for the Motor Accidents Claim Resolution Service issued a certificate that permitted the commencement of proceedings in this Court. A statement of claim was filed on 1 October 2020 in which, in addition to the claim for damages, the plaintiff sought leave pursuant to s 109 of the Motor Accidents Compensation Act 1999 (“the Act”) to commence proceedings out of time. A defence was filed on 16 November 2020 in which issues were raised of joint illegal enterprise, contributory negligence and the absence of leave to commence proceedings.

The applications before the Court

By a motion filed on 21 December 2020, the defendant sought to have the proceedings dismissed on the ground that they were commenced without leave, or alternatively, that the proceedings have not been prosecuted with due despatch. The motion came before the Court on 18 March 2020. At the same time, the plaintiff, without objection by…

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 Whitmore v Simon

Details

AGLC: Whitmore v Simon [2021] NSWDC 137
Case: [2021] NSWDC 137
Decision Date: 19 March 2021

CaseChat Overview and Summary

In the case of Whitmore v Simon, the plaintiff, Whitmore, sought compensation for personal injuries sustained in a motor accident. The defendant, Simon, filed a motion to dismiss Whitmore’s proceedings on the basis of substantial delay and Whitmore’s application for leave to commence the action out of time. The case was heard in the Local Court of New South Wales. Whitmore was a minor at the time of the accident, which caused serious injuries and disabilities, and the circumstances surrounding the accident involved alcohol and illegal activities.

The legal issues before the court were whether the delay in commencing proceedings constituted a sufficient ground for dismissal and whether Whitmore should be granted leave to proceed out of time. The court considered the extent of the delay, the disadvantage to the defendant, and the circumstances of the accident, including the involvement of alcohol and illegal activities.

The court found that, although there had been a substantial delay in bringing the proceedings, the plaintiff’s disadvantage due to being a minor at the time of the accident was significant. The court acknowledged the severe injuries and disabilities resulting from the accident, and the circumstances involving alcohol and illegal activities did not sufficiently prejudice the defendant to warrant dismissal. The court granted the plaintiff’s application for leave to proceed out of time, and dismissed the defendant’s motion to dismiss. The court also ordered the defendant to pay the plaintiff’s costs of the motion and the plaintiff to pay the defendant’s costs of the application for leave to proceed.

The orders of the court included dismissing the defendant’s motion, granting leave to the plaintiff to commence proceedings out of time, and making orders in accordance with the consent orders signed and dated 19 March 2021. The matter was listed for further directions on 10 August 2020.

Orders

Orders of the court

Orders:

(1) The motion filed on behalf of the defendant on 20 December 2020 is dismissed.

(2) The defendant is to pay the plaintiff's costs of the motion.

(3) On the plaintiff's application for leave to proceed, I grant leave pursuant to s 109 of the Motor Accidents Compensation Act nunc pro tunc to the plaintiff to commence proceedings out of time, noting that those proceedings were commenced on 1 October 2020.

(4) The plaintiff is to pay the defendant's costs of that application.

(5) By consent, I make orders in accordance with the consent orders, signed and dated 19 March 2021, noting that the matter will be listed for further directions on 10 August 2020.

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:	WHITMORE v SIMON [2021] NSWDC 137
Hearing dates:	19 MARCH 2021
Date of orders:	19 MARCH 2021
Decision date:	19 March 2021
Jurisdiction:	Civil
Before:	M Sidis ADCJ
Decision:	Orders: (1) The motion filed on behalf of the defendant on 20 December 2020 is dismissed. (2) The defendant is to pay the plaintiff's costs of the motion. (3) On the plaintiff's application for leave to proceed, I grant leave pursuant to s 109 of the Motor Accidents Compensation Act nunc pro tunc to the plaintiff to commence proceedings out of time, noting that those proceedings were commenced on 1 October 2020. (4) The plaintiff is to pay the defendant's costs of that application. (5) By consent, I make orders in accordance with the consent orders, signed and dated 19 March 2021, noting that the matter will be listed for further directions on 10 August 2020.
Catchwords:	PERSONAL INJURY – motor accident – substantial period of delay– applications to dismiss and for leave to commence out of time – minor at time of accident – disadvantage – involvement of alcohol and joint illegal enterprise – serious injuries and disabilities.
Legislation Cited:	Motor Accidents Compensation Act 1999 ss 66(2), 109
Category:	Procedural rulings
Parties:	Plaintiff: Frederick John Whitmore Defendant: Keenan Simon
Representation:	Counsel: Plaintiff: Mr L Brazel Defendant: Mr C Hart Solicitors: Plaintiff: Slater and Gordon Lawyers Defendant: McCabe Curwood Pty Ltd
File Number(s):	2020/00283839
Publication restriction:	nil