Wightley v Whitworth - [2014] NSWDC 243

District Court

New South Wales

Medium Neutral Citation: Wightley v Whitworth & Anor [2014] NSWDC 243
Hearing dates: 16 July, 15 August & 17 October 2014
Decision date: 19 December 2014
Before: Levy SC DCJ
Decision:
1.The notice of motion filed by the defendants on 7 May 2014 is dismissed;
2.In respect of the notice of motion filed by the plaintiff on 21 May 2014, pursuant to s 73(1) and s 109(3) of the Motor Accidents Compensation Act 1999, the time for the plaintiff to file her statement of claim arising from the accident on 26 August 2006 is extended to 11 March 2014;
3.I will hear the parties on the appropriate order for costs in relation to both notices of motion;
4.The exhibits may be returned;
5.Liberty to apply on 7 days notice if further or other orders are required.

Catchwords: LIMITATION OF ACTIONS - related contested applications - first, by defendants seeking dismissal of plaintiff's claim for procedural non-compliance with time limits imposed by Motor Accidents Compensation Act 1999 - secondly, by plaintiff seeking leave to proceed with motor vehicle accident personal injury claim filed out of time - whether delay fully and satisfactorily explained - whether relevant prejudice demonstrated; COSTS - which party should pay costs
Legislation Cited: Motor Accidents Compensation Act 1999, s 66, s 72, s 73, s 109
Cases Cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Nominal Defendant v Browne [2013] NSWCA 197
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Walker v Howard [2009] NSWCA 408
Category: Interlocutory applications
Parties: Amy Ruth Wightley (Plaintiff)
Matt Whitworth (First defendant)
Brent Taylor (Second defendant)
Representation: Mr J Reimer (Plaintiff - 16 July 2014)
Ms E Welsh (Plaintiff - 15 August & 17 October 2014)
Mr B Wilson (Defendants)
Brydens (Plaintiff)
Moray & Agnew (Defendants)

File Number(s): 2014/4295
Publication restriction: None

Judgment

Table of Contents

Notices of Motion

[1] - [4]

Procedural history

[5] - [10]

Legislation and Issues

[11] - [16]

Evidence array

[17] - [19]

Facts

[20] - [63]

Issue 1 - Whether the plaintiff's explanation is "full"

[64] - [69]

Issue 2 - Whether the plaintiff's explanation is "satisfactory"

[70] - [71]

Issue 3 - Whether damages are likely to exceed $87,750

[72] - [77]

Issue 4 - Whether prejudice is shown

[78] - [80]

Disposition

[81]

Costs

[82] - [83]

Orders

[84]

Notices of Motion

Two procedural notices of motion require determination. Each relates to the plaintiff's claim for damages for personal injuries arising from a motor vehicle accident that occurred on 26 August 2008. The plaintiff's statement of claim was filed out of time on 11 March 2014.

The first motion was filed on behalf of the defendants on 7 May 2014, and seeks dismissal of the plaintiff's claim because the plaintiff failed to comply with the procedural requirements of s 72(1) and s 73(1) of the MotorAccidents Compensation Act 1999 concerning her late claim and…

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 Wightley v Whitworth

Details

AGLC: Wightley v Whitworth [2014] NSWDC 243
Case: [2014] NSWDC 243
Decision Date: 19 December 2014

CaseChat Overview and Summary

The case of Wightley v Whitworth involved a personal injury claim arising from a motor vehicle accident. The plaintiff, Wightley, sought to file a statement of claim out of time, while the defendants, Whitworth, argued that the claim was barred by the limitation period set out in the Motor Accidents Compensation Act 1999. The matter was heard in the Queensland District Court. The primary legal issues for the court to determine were whether the plaintiff's delay in filing her claim was fully and satisfactorily explained and whether the defendants had demonstrated relevant prejudice as a result of the delay.

The court found that the plaintiff had provided a satisfactory explanation for the delay, noting that the plaintiff had been under the impression that she did not need to take any action until the defendants had been identified and served. Additionally, the court found that the defendants had not demonstrated any relevant prejudice as a result of the delay. As such, the court granted the plaintiff's application to extend the time for filing her statement of claim. The court also noted that it would hear the parties on the appropriate order for costs in relation to both notices of motion.

In conclusion, the court dismissed the defendants' application seeking dismissal of the plaintiff's claim for procedural non-compliance with time limits imposed by the Motor Accidents Compensation Act 1999. The court granted the plaintiff's application to extend the time for filing her statement of claim, finding that the delay was fully and satisfactorily explained and that the defendants had not demonstrated relevant prejudice. The court also noted that it would hear the parties on the appropriate order for costs in relation to both notices of motion. The plaintiff's statement of claim was to be filed by 11 March 2014, and the exhibits were to be returned. The court reserved the right to make further or other orders if necessary.

Orders

Orders of the court

1.The notice of motion filed by the defendants on 7 May 2014 is dismissed;

2.In respect of the notice of motion filed by the plaintiff on 21 May 2014, pursuant to s 73(1) and s 109(3) of the Motor Accidents Compensation Act 1999, the time for the plaintiff to file her statement of claim arising from the accident on 26 August 2006 is extended to 11 March 2014;

3.I will hear the parties on the appropriate order for costs in relation to both notices of motion;

4.The exhibits may be returned;

5.Liberty to apply on 7 days notice if further or other orders are required.

Background

Background to the litigation

Full text does not contain this section.

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:	Wightley v Whitworth & Anor [2014] NSWDC 243
Hearing dates:	16 July, 15 August & 17 October 2014
Decision date:	19 December 2014
Before:	Levy SC DCJ
Decision:	1.The notice of motion filed by the defendants on 7 May 2014 is dismissed; 2.In respect of the notice of motion filed by the plaintiff on 21 May 2014, pursuant to s 73(1) and s 109(3) of the Motor Accidents Compensation Act 1999, the time for the plaintiff to file her statement of claim arising from the accident on 26 August 2006 is extended to 11 March 2014; 3.I will hear the parties on the appropriate order for costs in relation to both notices of motion; 4.The exhibits may be returned; 5.Liberty to apply on 7 days notice if further or other orders are required.
Catchwords:	LIMITATION OF ACTIONS - related contested applications - first, by defendants seeking dismissal of plaintiff's claim for procedural non-compliance with time limits imposed by Motor Accidents Compensation Act 1999 - secondly, by plaintiff seeking leave to proceed with motor vehicle accident personal injury claim filed out of time - whether delay fully and satisfactorily explained - whether relevant prejudice demonstrated; COSTS - which party should pay costs
Legislation Cited:	Motor Accidents Compensation Act 1999, s 66, s 72, s 73, s 109
Cases Cited:	Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Nominal Defendant v Browne [2013] NSWCA 197 State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 Walker v Howard [2009] NSWCA 408
Category:	Interlocutory applications
Parties:	Amy Ruth Wightley (Plaintiff) Matt Whitworth (First defendant) Brent Taylor (Second defendant)
Representation:	Mr J Reimer (Plaintiff - 16 July 2014) Ms E Welsh (Plaintiff - 15 August & 17 October 2014) Mr B Wilson (Defendants) Brydens (Plaintiff) Moray & Agnew (Defendants)
File Number(s):	2014/4295
Publication restriction:	None

Notices of Motion	[1] - [4]
Procedural history	[5] - [10]
Legislation and Issues	[11] - [16]
Evidence array	[17] - [19]
Facts	[20] - [63]
Issue 1 - Whether the plaintiff's explanation is "full"	[64] - [69]
Issue 2 - Whether the plaintiff's explanation is "satisfactory"	[70] - [71]
Issue 3 - Whether damages are likely to exceed $87,750	[72] - [77]
Issue 4 - Whether prejudice is shown	[78] - [80]
Disposition	[81]
Costs	[82] - [83]
Orders	[84]