Kiritheran Thambirajah v Allianz Australia Insurance Limited [2023] NSWDC 534

Kiritheran Thambirajah v Allianz Australia Insurance Limited [2023] NSWDC 534

The plaintiff provided a full and satisfactory explanation for the delay in both serving the claim form and commencing proceedings: he acted diligently and relied on his solicitors at all times, but suffered from significant language barriers, psychological injury, and was not advised properly or at all as to the limitation periods relevant to his claim. As a reasonable person in his position would have experienced the same delay, the requirements of s 73 and s 109(3) Motor Accidents Compensation Act 1999 (NSW) are satisfied. Affidavit or oral evidence from his former solicitors was not required, given the complete file evidence and absence of challenge to the claimant’s evidence. Leave...

Jurisdiction
Australia
Judgment Date
01 December 2023
Procedural Posture
Civil / Notice of Motion to Dismiss Proceedings and for Leave to Proceed Out of Time
Outcome
Defendant’s Notice of Motion dismissed; Plaintiff granted leave to commence and continue proceedings; Defendant to pay Plaintiff’s costs of the Notice of Motion.
Legal Topics
['limitation of Actions' 'leave to Proceed Out of Time' 'explanation for Delay' 'motor Accidents Compensation Act 1999 (nsw)']
['personal Injury' 'motor Accidents' 'procedural Law'] ['limitation of Actions' 'leave to Proceed Out of Time' 'explanation for Delay' 'motor Accidents Compensation Act 1999 (nsw)']

Case Brief

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Procedural Posture

Civil / Notice of Motion to Dismiss Proceedings and for Leave to Proceed Out of Time

Legal Issues

  1. 1 ['Whether the plaintiff provided a full and satisfactory explanation for delay in lodging a Motor Accidents Personal Injury Claim Form under ss 66(2), 72, and 73 of the Motor Accidents Compensation Act 1999 (NSW)' 'Whether leave should be granted under s 109(3) to commence proceedings outside the three-year limitation period' 'Whether evidence by plaintiff’s former solicitors was required for a full and satisfactory explanation']

Ratio Decidendi

The plaintiff provided a full and satisfactory explanation for the delay in both serving the claim form and commencing proceedings: he acted diligently and relied on his solicitors at all times, but suffered from significant language barriers, psychological injury, and was not advised properly or at all as to the limitation periods relevant to his claim. As a reasonable person in his position would have experienced the same delay, the requirements of s 73 and s 109(3) Motor Accidents Compensation Act 1999 (NSW) are satisfied. Affidavit or oral evidence from his former solicitors was not required, given the complete file evidence and absence of challenge to the claimant’s evidence. Leave...

Court Disposition

Defendant’s Notice of Motion dismissed; Plaintiff granted leave to commence and continue proceedings; Defendant to pay Plaintiff’s costs of the Notice of Motion.

Orders

  • ["The Defendant's Notice of Motion filed 19 July 2023 is dismissed." 'Pursuant to s 109(3) Motor Accidents Compensation Act 1999 (NSW), the Plaintiff have leave to commence and continue these proceedings.' "The Defendant pay the Plaintiff's costs of the Notice of Motion."]