Parrish v Olympic Roadways Pty Ltd [2015] NSWDC 157

Parrish v Olympic Roadways Pty Ltd [2015] NSWDC 157

Because the plaintiff's evidence that he did not receive the 22 October 2007 advice letter was not effectively challenged, and there was no real evidence that the letter was posted or what inference should be drawn from its presence on the former solicitors' file, the Court preferred the plaintiff's evidence. On the parties' concessions, that finding meant the plaintiff's explanation for the delay was full and satisfactory, so leave was granted under s 109 of the Motor Accidents Compensation Act 1999 and the defendants' dismissal motions were otherwise dismissed.

Jurisdiction
Australia
Judgment Date
28 January 2015
Procedural Posture
Civil Motor Accidents Negligence Proceedings / Notices of Motion Seeking Dismissal for Delay and Leave to Continue Proceedings
Outcome
Plaintiff granted leave to continue the proceedings; notices of motion otherwise dismissed; costs of the notices of motion to be costs in the proceedings.
Legal Topics
['delay in Making Claim' 'delay in Commencing Proceedings' 'full and Satisfactory Explanation' 'leave to Commence or Continue Proceedings' 'costs of Interlocutory Motions']
['motor Accidents Compensation' 'civil Procedure' 'personal Injury'] ['delay in Making Claim' 'delay in Commencing Proceedings' 'full and Satisfactory Explanation' 'leave to Commence or Continue Proceedings' 'costs of Interlocutory Motions']

Case Brief

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Procedural Posture

Civil Motor Accidents Negligence Proceedings / Notices of Motion Seeking Dismissal for Delay and Leave to Continue Proceedings

Legal Issues

  1. 1 ['Whether the plaintiff provided a full and satisfactory explanation for the delay in making the motor accident claim under s 73 of the Motor Accidents Compensation Act 1999.' 'Whether the plaintiff should be granted leave under s 109 of the Motor Accidents Compensation Act 1999 to continue proceedings commenced more than 3 years after the motor accident.' 'Whether the plaintiff received the letter dated 22 October 2007 from Walter Madden Jenkins advising about a motor accident claim and time limits.' 'Whether any adverse inference should be drawn from the failure to call evidence from Mr Hammond or Ms McTegg.' 'What costs order should be made on the notices of motion.']

Ratio Decidendi

Because the plaintiff's evidence that he did not receive the 22 October 2007 advice letter was not effectively challenged, and there was no real evidence that the letter was posted or what inference should be drawn from its presence on the former solicitors' file, the Court preferred the plaintiff's evidence. On the parties' concessions, that finding meant the plaintiff's explanation for the delay was full and satisfactory, so leave was granted under s 109 of the Motor Accidents Compensation Act 1999 and the defendants' dismissal motions were otherwise dismissed.

Court Disposition

Plaintiff granted leave to continue the proceedings; notices of motion otherwise dismissed; costs of the notices of motion to be costs in the proceedings.

Orders

  • ['Plaintiff be granted leave to continue these proceedings pursuant to s 109 of the Motor Accidents Compensation Act 1999.' 'Costs of the notices of motion be costs in the proceedings.' 'The notices of motion be otherwise dismissed.' 'List for directions on Thursday, 5 February 2015 at 9.30am before the Judicial...