Cole-Herring v Bourke [2018] NSWDC 41

Cole-Herring v Bourke [2018] NSWDC 41

The plaintiff's delay was fully and satisfactorily explained. The court accepted that her vagueness about dates reflected lack of sophistication, ill health and intimidation by the legal process, and that her serious medical history, accident injuries, opioid addiction, pregnancy and childbirth complications, limited education and remote circumstances justified the delays. The court also accepted that much of the delay was attributable to solicitors' failings and that the plaintiff relied on her solicitor at all relevant times. Accordingly, the statutory basis for dismissing the late claim was not made out.

Jurisdiction
Australia
Judgment Date
06 March 2018
Procedural Posture
Civil Motor Vehicle Tort Claim / Defendant's Notice of Motion to Dismiss Statement of Claim for Breach of S 72 of the Motor Accidents Compensation Act 1999 (nsw)
Outcome
Defendant's notice of motion dismissed.
Legal Topics
['late Motor Accident Claims' 'full and Satisfactory Explanation for Delay' 'dismissal of Proceedings on Ground of Delay' 'costs in the Cause']
['tort' 'motor Vehicle Claims' 'civil Procedure'] ['late Motor Accident Claims' 'full and Satisfactory Explanation for Delay' 'dismissal of Proceedings on Ground of Delay' 'costs in the Cause']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Motor Vehicle Tort Claim / Defendant's Notice of Motion to Dismiss Statement of Claim for Breach of S 72 of the Motor Accidents Compensation Act 1999 (nsw)

Legal Issues

  1. 1 ['Whether the plaintiff had a full and satisfactory explanation for the delay in making the motor accident claim.' "Whether the plaintiff's statement of claim should be dismissed under s 73(7) of the Motor Accidents Compensation Act 1999 (NSW) on the ground of delay." "What costs order should be made on the defendant's notice of motion."]

Ratio Decidendi

The plaintiff's delay was fully and satisfactorily explained. The court accepted that her vagueness about dates reflected lack of sophistication, ill health and intimidation by the legal process, and that her serious medical history, accident injuries, opioid addiction, pregnancy and childbirth complications, limited education and remote circumstances justified the delays. The court also accepted that much of the delay was attributable to solicitors' failings and that the plaintiff relied on her solicitor at all relevant times. Accordingly, the statutory basis for dismissing the late claim was not made out.

Court Disposition

Defendant's notice of motion dismissed.

Orders

  • ['Notice of motion dismissed.' "Costs to be plaintiff's costs in the cause." 'Matter stood over to the Case Managed List before the Judicial Registrar on Friday 9 March 2018 for future directions.']