Penney v Morris [2018] NSWDC 466

Penney v Morris [2018] NSWDC 466

The Court refused leave because the plaintiff failed to provide a satisfactory explanation for the very lengthy delay in commencing proceedings, particularly where his solicitors proceeded slowly and as if the 3 year limitation period did not exist. The Court was not satisfied that the plaintiff was legally incapacitated or needed a tutor, so the monetary threshold in s 109(3)(b) applied. On the evidence, with non-compensable conditions excluded and damages requiring speculation, the plaintiff did not establish that likely total damages would reach $131,750.

Jurisdiction
Australia
Judgment Date
16 May 2018
Procedural Posture
Civil Motor Accidents Compensation Proceedings / Notice of Motion Seeking Nunc Pro Tunc Leave to Commence Proceedings Outside the 3 Year Limitation Period
Outcome
The notice of motion was dismissed, the statement of claim was dismissed, and the plaintiff was ordered to pay the defendant's costs.
Legal Topics
['leave to Commence Motor Accident Proceedings Out of Time' 'full and Satisfactory Explanation for Delay' 'legal Incapacity and Appointment of Tutor' 'statutory Monetary Threshold' 'whole Person Impairment' 'motor Accident Damages']
['torts' 'motor Accidents Compensation' 'civil Procedure' 'limitation of Actions'] ['leave to Commence Motor Accident Proceedings Out of Time' 'full and Satisfactory Explanation for Delay' 'legal Incapacity and Appointment of Tutor' 'statutory Monetary Threshold' 'whole Person Impairment' 'motor Accident Damages']

Case Brief

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Procedural Posture

Civil Motor Accidents Compensation Proceedings / Notice of Motion Seeking Nunc Pro Tunc Leave to Commence Proceedings Outside the 3 Year Limitation Period

Legal Issues

  1. 1 ["Whether the plaintiff's explanation for commencing proceedings more than 3 years after the motor accident was satisfactory under s 109 of the Motor Accidents Compensation Act 1999." 'Whether the plaintiff was legally incapacitated because of mental capacity and required a tutor.' 'Whether the total damages likely to be awarded if the claim succeeded were not less than $131,750.' 'Whether alleged cognitive impairment, low back injury and other impairments were causally related to the motor vehicle accident of 27 August 2010.']

Ratio Decidendi

The Court refused leave because the plaintiff failed to provide a satisfactory explanation for the very lengthy delay in commencing proceedings, particularly where his solicitors proceeded slowly and as if the 3 year limitation period did not exist. The Court was not satisfied that the plaintiff was legally incapacitated or needed a tutor, so the monetary threshold in s 109(3)(b) applied. On the evidence, with non-compensable conditions excluded and damages requiring speculation, the plaintiff did not establish that likely total damages would reach $131,750.

Court Disposition

The notice of motion was dismissed, the statement of claim was dismissed, and the plaintiff was ordered to pay the defendant's costs.

Orders

  • ['The notice of motion filed 16/04/18 is dismissed.' 'The statement of claim filed 4 April 2018 is dismissed.' "The plaintiff is to pay the defendant's costs of the proceedings."]