Agyeman-Badu v The Nominal Defendant [2012] NSWDC 35

Agyeman-Badu v The Nominal Defendant [2012] NSWDC 35

The certificate was issued on 31 May 2011, not when posted on 8 June 2011, so the statement of claim was filed outside the s 109 two month period and leave was required. Leave was refused because actual prejudice was established: the delay made it unlikely that witnesses could be found to determine whether a motor...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
13 April 2012
Procedural Posture
Civil Motor Accidents Compensation Proceedings / Plaintiff's Notice of Motion for Leave to Commence Proceedings Pursuant to S 109 Motor Accidents Compensation Act 1999 (nsw) and Defendant's Notice of Motion to Dismiss the Proceedings for Failure to Provide a Full and Satisfactory Explanation Under Ss 72 and 73
Outcome
Plaintiff's application for leave refused; defendant's application to dismiss proceedings granted.
Legal Topics
['leave to Commence Proceedings Out of Time' 'meaning of "issued" in S 109 Motor Accidents Compensation Act 1999 (nsw)' 'late Claim' 'full and Satisfactory Explanation for Delay' 'nominal Defendant' 'prejudice and Fair Trial']
['motor Accidents Compensation' 'limitation of Actions' 'civil Procedure'] ['leave to Commence Proceedings Out of Time' 'meaning of "issued" in S 109 Motor Accidents Compensation Act 1999 (nsw)' 'late Claim' 'full and Satisfactory Explanation for Delay' 'nominal Defendant' 'prejudice and Fair Trial']

Source-derived case record

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Procedural Posture

Civil Motor Accidents Compensation Proceedings / Plaintiff's Notice of Motion for Leave to Commence Proceedings Pursuant to S 109 Motor Accidents Compensation Act 1999 (nsw) and Defendant's Notice of Motion to Dismiss the Proceedings for Failure to Provide a Full and Satisfactory Explanation Under Ss 72 and 73

Legal Issues

  1. 1 ['Whether the Motor Accidents Authority certificate was "issued" on 31 May 2011 when dated or on 8 June 2011 when posted to the parties for the purposes of s 109 Motor Accidents Compensation Act 1999 (NSW).' 'Whether the plaintiff required leave to commence proceedings out of time under s 109 Motor Accidents Compensation Act 1999 (NSW).' 'Whether the defendant established actual prejudice such that a fair trial was not possible.' 'Whether the plaintiff provided a full and satisfactory explanation for the delay in making the claim under ss 72 and 73 Motor Accidents Compensation Act 1999 (NSW).']

Ratio Decidendi

The certificate was issued on 31 May 2011, not when posted on 8 June 2011, so the statement of claim was filed outside the s 109 two month period and leave was required. Leave was refused because actual prejudice was established: the delay made it unlikely that witnesses could be found to determine whether a motor vehicle was involved, whether the van or car was at fault, or whether contributory negligence could be established. The defendant's dismissal application was granted because, although the plaintiff's ignorance of the Nominal Defendant scheme gave a full and satisfactory explanation up to 3 December 2009, her explanation for the further delay to 8 March 2010 after consulting...

Court Disposition

Plaintiff's application for leave refused; defendant's application to dismiss proceedings granted.

Orders

  • ["Plaintiff's application for leave to commence proceedings pursuant to s 109 Motor Accidents Compensation Act 1999 (NSW) refused." "Defendant's application for these proceedings to be dismissed for failure to provide a full and satisfactory explanation (ss 72 and 73 Motor Accidents Compensation Act 1999 (NSW))...