Souraya Homsi v Ibrahim Nabulsi [2017] NSWDC 16

Souraya Homsi v Ibrahim Nabulsi [2017] NSWDC 16

The plaintiff gave a full and satisfactory explanation for delay because she relied on solicitors to progress the claim, made inquiries, changed solicitors when the first solicitor failed to progress the matter, and was not advised of the limitation period. However, leave could not be granted because the evidence did not show a real chance that total damages would reach the statutory threshold of $112,500. Future treatment was likely modest, Dr Giblin's domestic care opinion was likely inadmissible, and the plaintiff's best case for additional care was approximately $60,000, making damages above the threshold remote rather than a real chance.

Jurisdiction
Australia
Judgment Date
16 February 2017
Procedural Posture
Civil Application for Leave to Commence Proceedings Under S 109(1) of the Motor Accident Compensation Act 1999 / Summons Seeking Leave to Commence Proceedings Out of Time
Outcome
Summons dismissed with costs
Legal Topics
['extension of Time' 'leave to Commence Proceedings' 'full and Satisfactory Explanation for Delay' 'damages Threshold' 'domestic Assistance Damages']
['motor Accident Compensation' 'civil Procedure'] ['extension of Time' 'leave to Commence Proceedings' 'full and Satisfactory Explanation for Delay' 'damages Threshold' 'domestic Assistance Damages']

Case Brief

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Procedural Posture

Civil Application for Leave to Commence Proceedings Under S 109(1) of the Motor Accident Compensation Act 1999 / Summons Seeking Leave to Commence Proceedings Out of Time

Legal Issues

  1. 1 ['Whether the plaintiff provided a full and satisfactory explanation for the delay in commencing proceedings.' 'Whether the total damages of all kinds likely to be awarded to the plaintiff if the claim succeeded were not less than 25% of the maximum amount for non-economic loss under s 134 as at the date of the accident.' 'Whether, if the statutory preconditions were satisfied, discretionary considerations including prejudice would justify refusing leave.']

Ratio Decidendi

The plaintiff gave a full and satisfactory explanation for delay because she relied on solicitors to progress the claim, made inquiries, changed solicitors when the first solicitor failed to progress the matter, and was not advised of the limitation period. However, leave could not be granted because the evidence did not show a real chance that total damages would reach the statutory threshold of $112,500. Future treatment was likely modest, Dr Giblin's domestic care opinion was likely inadmissible, and the plaintiff's best case for additional care was approximately $60,000, making damages above the threshold remote rather than a real chance.

Court Disposition

Summons dismissed with costs

Orders

  • ["The plaintiff's Summons is dismissed." "The plaintiff is to pay the defendant's costs of the Summons."]