Diaz & Anor. v. Truong [2002] NSWCA 265

Diaz & Anor. v. Truong [2002] NSWCA 265

A majority of the Court held that a full and satisfactory explanation must include a complete account of the relevant conduct, including that of solicitors, and that in this case the asserted ongoing misapprehension by the solicitors was not sufficiently explained in light of available warnings, thus not amounting to a full or satisfactory explanation for delay. Therefore, the statutory condition for granting leave to commence proceedings out of time was not satisfied.

Jurisdiction
Australia
Judgment Date
19 August 2002
Procedural Posture
Civil Appeal / Application for Leave to Appeal and Appeal From District Court Decision Granting Leave to Commence Proceedings Out of Time
Outcome
Leave to appeal granted; appeal dismissed by majority; claimants to pay opponent's costs.
Legal Topics
['leave to Commence Proceedings Out of Time' 'full and Satisfactory Explanation for Delay' 'provision of Particulars' 'denial of Liability' 'procedural Requirements Under Motor Accidents Act']
['limitation of Actions' 'motor Vehicle Accidents'] ['leave to Commence Proceedings Out of Time' 'full and Satisfactory Explanation for Delay' 'provision of Particulars' 'denial of Liability' 'procedural Requirements Under Motor Accidents Act']

Case Brief

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Procedural Posture

Civil Appeal / Application for Leave to Appeal and Appeal From District Court Decision Granting Leave to Commence Proceedings Out of Time

Legal Issues

  1. 1 ['Whether there was a full and satisfactory explanation for delay in commencing proceedings under s.52(4B)(a) of the Motor Accidents Act 1988' 'Whether the failure to provide particulars under ss.48 and 50A of the Motor Accidents Act barred commencement of proceedings' "The construction of 'full and satisfactory explanation' under s.40(2) of the Motor Accidents Act"]

Ratio Decidendi

A majority of the Court held that a full and satisfactory explanation must include a complete account of the relevant conduct, including that of solicitors, and that in this case the asserted ongoing misapprehension by the solicitors was not sufficiently explained in light of available warnings, thus not amounting to a full or satisfactory explanation for delay. Therefore, the statutory condition for granting leave to commence proceedings out of time was not satisfied.

Court Disposition

Leave to appeal granted; appeal dismissed by majority; claimants to pay opponent's costs.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.' "Claimants to pay opponent's costs of the application for leave and appeal." 'Claimants to have a Suitors Fund certificate if otherwise entitled.']