Parker v MacLoughlin [2022] NSWDC 532

Parker v MacLoughlin [2022] NSWDC 532

The plaintiff's explanation was full, and it was satisfactory because a reasonable person in his position would have been justified in the same delay: he was recovering from serious injuries, had no memory of the accident, had been told by the investigating police officer that no one was at fault, received experienced legal advice in 2011 that he did not have reasonable prospects of success and could not afford the further expert report, and acted promptly once different advice was obtained in 2019. Leave to commence proceedings out of time was therefore granted, but because the plaintiff sought an indulgence and the defendant was justified in opposing the motion, the plaintiff was...

Jurisdiction
Australia
Judgment Date
08 November 2022
Procedural Posture
Civil Motor Accident Claim / Notice of Motion Seeking Leave to Commence Proceedings Out of Time
Outcome
Leave granted to commence the proceedings nunc pro tunc; plaintiff ordered to pay the defendant's costs of the Notice of Motion.
Legal Topics
['late Claims' 'full and Satisfactory Explanation for Delay' 'leave to Commence Proceedings Out of Time' 'costs Where Party Seeks an Indulgence']
['motor Accident Legislation' 'civil Procedure' 'costs'] ['late Claims' 'full and Satisfactory Explanation for Delay' 'leave to Commence Proceedings Out of Time' 'costs Where Party Seeks an Indulgence']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Motor Accident Claim / Notice of Motion Seeking Leave to Commence Proceedings Out of Time

Legal Issues

  1. 1 ['Whether the plaintiff provided a full and satisfactory explanation for delay in making the motor accident claim and commencing proceedings.' "Whether a reasonable person in the plaintiff's position would have been justified in experiencing the same delay." 'Whether costs should follow the event or be ordered against the plaintiff as a party seeking an indulgence.']

Ratio Decidendi

The plaintiff's explanation was full, and it was satisfactory because a reasonable person in his position would have been justified in the same delay: he was recovering from serious injuries, had no memory of the accident, had been told by the investigating police officer that no one was at fault, received experienced legal advice in 2011 that he did not have reasonable prospects of success and could not afford the further expert report, and acted promptly once different advice was obtained in 2019. Leave to commence proceedings out of time was therefore granted, but because the plaintiff sought an indulgence and the defendant was justified in opposing the motion, the plaintiff was...

Court Disposition

Leave granted to commence the proceedings nunc pro tunc; plaintiff ordered to pay the defendant's costs of the Notice of Motion.

Orders

  • ['Grant leave to the plaintiff nunc pro tunc to commence these proceedings by the Statement of Claim already filed.' "Order the plaintiff to pay the defendant's costs of the plaintiff's Notice of Motion filed on 30 June 2022."]