Almin Bajramovic v Briccio Calubaquib [2015] NSWDC 293

Almin Bajramovic v Briccio Calubaquib [2015] NSWDC 293

The plaintiff gave a full account of his conduct, knowledge and belief from the accident until the explanation, and the court accepted that he had not been advised of the three year limitation period. It was reasonable for him initially to deal directly with the insurer and then to rely on his solicitors, who appeared to be progressing the claim but failed to protect his position. A reasonable person in the plaintiff's position would have been justified in experiencing the delay, the s 109(3) conditions were satisfied, and no prejudice preventing a fair trial was shown.

Jurisdiction
Australia
Judgment Date
10 December 2015
Procedural Posture
Application for Leave Pursuant to S 109 of the Motor Accidents Compensation Act 1999 to Commence Proceedings in Respect of a Motor Vehicle Accident Claim Out of Time / Summons Remitted to the District Court for Determination After the Court of Appeal Granted Leave to Appeal, Allowed the Appeal and Set Aside Earlier Orders Dismissing the Summons
Outcome
Leave granted to the plaintiff to file the Statement of Claim out of time.
Legal Topics
['extension of Time' 'leave to Commence Proceedings' 'full and Satisfactory Explanation for Delay' 'limitation Period' 'prejudice and Fair Trial']
['civil Procedure' 'motor Accidents Compensation' 'personal Injury'] ['extension of Time' 'leave to Commence Proceedings' 'full and Satisfactory Explanation for Delay' 'limitation Period' 'prejudice and Fair Trial']

Case Brief

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Procedural Posture

Application for Leave Pursuant to S 109 of the Motor Accidents Compensation Act 1999 to Commence Proceedings in Respect of a Motor Vehicle Accident Claim Out of Time / Summons Remitted to the District Court for Determination After the Court of Appeal Granted Leave to Appeal, Allowed the Appeal and Set Aside Earlier Orders Dismissing the Summons

Legal Issues

  1. 1 ['Whether the plaintiff provided a full and satisfactory explanation for the delay in commencing proceedings under s 109(3)(a) of the Motor Accidents Compensation Act 1999.' "Whether a reasonable person in the plaintiff's position would have been justified in experiencing the same delay." 'Whether the court should exercise its discretion to grant leave to file the Statement of Claim out of time.' 'Whether granting leave would cause prejudice such that a fair trial could not take place.']

Ratio Decidendi

The plaintiff gave a full account of his conduct, knowledge and belief from the accident until the explanation, and the court accepted that he had not been advised of the three year limitation period. It was reasonable for him initially to deal directly with the insurer and then to rely on his solicitors, who appeared to be progressing the claim but failed to protect his position. A reasonable person in the plaintiff's position would have been justified in experiencing the delay, the s 109(3) conditions were satisfied, and no prejudice preventing a fair trial was shown.

Court Disposition

Leave granted to the plaintiff to file the Statement of Claim out of time.

Orders

  • ['I grant leave to the plaintiff to file the Statement of Claim filed on 4 May 2012 pursuant to s 109 of the Motor Accidents Compensation Act 1999, in respect of the motor vehicle accident on 20 November 2007.' "I order that the costs of the Summons be the plaintiff's costs in the cause." 'Stand over for Status...