William Alexandra Warren v The Nominal Defendant

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	William Alexandra Warren v The Nominal Defendant [2015] NSWDC 29
Hearing dates:	6 March 2015
Date of orders:	13 March 2015
Decision date:	13 March 2015
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	Application to dismiss proceedings under s 73(7) Motor Accidents Compensation Act 1999 (NSW) declined
Catchwords:	TORTS – negligence – motor accident cases PROCEDURE – dismissal of claim – delay – full and satisfactory explanation
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW) ss 34, 34A, 66, 72 and 73 Workers Compensation Act 1987 (NSW) ss 66 and 67
Cases Cited:	Figliuzzi v Yonan [2005] NSWCA 209 Lyu & Anor v Jeon (2012) 62 MVR 409 Russo v Aiello [2003] HCA 53; (2003) 215 CLR 163 Walker v Howard [2009] NSWCA 408; (2009) 78 NSWLR 161
Category:	Procedural and other rulings
Parties:	William Alexandra Warren (Plaintiff/Respondent) The Nominal Defendant (Defendant/Applicant)
Representation:	Counsel: Mr D Del Monte (Plaintiff) Mr B Kelleher (Defendant) Solicitors: Martin Bullock Lawyers (Plaintiff) Sparke Helmore Lawyers (Defendant)
File Number(s):	2014/00181102
Publication restriction:	Nil

Judgment

1. On 7 May 2011, the Respondent/Plaintiff was involved in a motor vehicle accident. Pursuant to s 72 of the 1999 Act, he was required to make his claim within six months of the date of the accident, being 7 November 2011. He did not do so until 25 July 2012, being 37 weeks and 2 days after the aforesaid date.

2. By Notice of Motion, filed 12 August 2015, the Applicant/Defendant moves the court for orders:-

1. Pursuant to s 34A(3) of the Motor Accidents Compensation Act 1999 (hereinafter ‘1999 Act’) that the Plaintiff’s statement of claim be dismissed for breach of s 34;

2. Pursuant to s 73(5) of the 1999 Act, that the Plaintiff’s statement of claim be dismissed for breach of ss 72 and 73;

3. That the Plaintiff pay the Defendant’s costs of and incidental to this notice of motion and of the proceedings; and

4. Any such other orders as this honourable court deems fit.

3. By consent, prayer 1 of the Notice of Motion was stood over for hearing in conjunction of the substantive matter. The Defendant has proceeded with its application to dismiss the statement of claim under s 73(5) of the 1999 Act for breaches of ss 72 and 73.

4. It is not in issue that the Defendant has not lost the right to reject the claim under s 73(4) and accordingly is entitled to bring this application.

5. On an application being brought, S 73(7) of the 1999 Act requires the Court to dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay.

6. It was not in issue between the parties that the Plaintiff provided a full explanation for the delay. However the Defendant contends that the explanation is not satisfactory.
   BACKGROUND

7. The Defendant relies on two affidavits of Grant Galvin, sworn 27 October 2014 and 5 March 2015. The Plaintiff relies on two affidavits, being one from himself sworn 2…