Christopher COSTELLO v Mark ARRAGON [2004] NSWCA 240

Christopher COSTELLO v Mark ARRAGON [2004] NSWCA 240

Herron ADCJ made findings open on the evidence that the plaintiff, an unsophisticated labourer, had forgotten the initial advice about the three year limitation period, believed the motor accident claim remained on foot, and had not given or confirmed instructions definitively abandoning it. The solicitor's impression that the claim would not be pursued did not establish abandonment, especially where the solicitor did not later advise the plaintiff of that impression or seek explicit instructions after the workers compensation settlement. On those findings, the plaintiff's explanation satisfied the statutory test, Itek Graphix was distinguishable, and no factual or legal error was shown.

Jurisdiction
Australia
Judgment Date
19 July 2004
Procedural Posture
Application for Leave to Appeal and Appeal Concerning Leave to Commence Motor Accident Damages Proceedings After Expiry of the Limitation Period / New South Wales Court of Appeal From District Court Order of Herron ADCJ Granting Leave
Outcome
Leave to appeal granted; appeal dismissed with costs.
Legal Topics
['full and Satisfactory Explanation for Delay' 'leave to Commence Proceedings Out of Time' 'motor Accidents Act 1988' 'forgotten Limitation Advice' 'alleged Abandonment of Claim' 'concurrent Workers Compensation and Motor Accident Claims']
['motor Accidents' 'limitation of Actions' 'civil Procedure' 'personal Injury' 'workers Compensation'] ['full and Satisfactory Explanation for Delay' 'leave to Commence Proceedings Out of Time' 'motor Accidents Act 1988' 'forgotten Limitation Advice' 'alleged Abandonment of Claim' 'concurrent Workers Compensation and Motor Accident Claims']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal Concerning Leave to Commence Motor Accident Damages Proceedings After Expiry of the Limitation Period / New South Wales Court of Appeal From District Court Order of Herron ADCJ Granting Leave

Legal Issues

  1. 1 ['Whether the plaintiff provided a full and satisfactory explanation for failing to commence proceedings within the three year limitation period.' 'Whether the plaintiff had been given and accepted advice not to proceed with the motor accident damages claim or had abandoned that claim.' 'Whether Herron ADCJ erred in distinguishing Itek Graphix Pty Ltd v Elliot and in granting leave to commence proceedings out of time.']

Ratio Decidendi

Herron ADCJ made findings open on the evidence that the plaintiff, an unsophisticated labourer, had forgotten the initial advice about the three year limitation period, believed the motor accident claim remained on foot, and had not given or confirmed instructions definitively abandoning it. The solicitor's impression that the claim would not be pursued did not establish abandonment, especially where the solicitor did not later advise the plaintiff of that impression or seek explicit instructions after the workers compensation settlement. On those findings, the plaintiff's explanation satisfied the statutory test, Itek Graphix was distinguishable, and no factual or legal error was shown.

Court Disposition

Leave to appeal granted; appeal dismissed with costs.

Orders

  • ['Grant leave to appeal.' 'Appeal dismissed with costs.']