Amor-Smith v Ching [2016] NSWDC 89

Amor-Smith v Ching [2016] NSWDC 89

The summons was dismissed because the plaintiff failed both statutory preconditions for leave under s 109: she did not establish likely damages at or above the 25% threshold, especially given the lack of supporting medical evidence, her recovery and likely contributory negligence; and she did not provide a full and satisfactory explanation for the delay, particularly for the period before retaining her solicitor. Independently, the defendant established estoppel per rem judicatam because the plaintiff had consented in the Local Court to judgment for the full uncompromised property damage claim, and the words "without admission of liability" were treated as surplusage.

Jurisdiction
Australia
Judgment Date
27 May 2016
Procedural Posture
Civil Summons for Leave to Commence Motor Accident Personal Injury Proceedings Out of Time Under S 109 of the Motor Accidents Compensation Act 1999 (nsw) / Principal Judgment on Summons Filed on 31 August 2015
Outcome
Summons dismissed; plaintiff ordered to pay defendant's costs; liberty to restore granted in relation to costs and any other post-judgment application.
Legal Topics
['extension of Time' 'full and Satisfactory Explanation for Delay' 'damages Threshold' 'contributory Negligence' 'estoppel Per Rem Judicatam' 'consent Judgment' 'privilege Against Self Incrimination' 'referral to Director of Public Prosecutions']
['tort' 'motor Accidents Compensation' 'personal Injury' 'civil Procedure' 'evidence'] ['extension of Time' 'full and Satisfactory Explanation for Delay' 'damages Threshold' 'contributory Negligence' 'estoppel Per Rem Judicatam' 'consent Judgment' 'privilege Against Self Incrimination' 'referral to Director of Public Prosecutions']

Case Brief

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Procedural Posture

Civil Summons for Leave to Commence Motor Accident Personal Injury Proceedings Out of Time Under S 109 of the Motor Accidents Compensation Act 1999 (nsw) / Principal Judgment on Summons Filed on 31 August 2015

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 (NSW).' 'Whether the total damages 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 109(3)(b) of the Motor Accidents Compensation Act 1999 (NSW).' 'Whether likely contributory negligence should be taken into account in assessing the s 109(3)(b) threshold.' 'Whether the Local Court consent judgment for the defendant\'s motor vehicle property damage claim created an estoppel per rem judicatam notwithstanding the words "without admission of liability".' "Whether to deal with the defendant's estoppel application summarily." "Whether to entertain or defer the defendant's foreshadowed application for referral of the proceedings to the Director of Public Prosecutions." 'Whether to grant a certificate under s 128 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The summons was dismissed because the plaintiff failed both statutory preconditions for leave under s 109: she did not establish likely damages at or above the 25% threshold, especially given the lack of supporting medical evidence, her recovery and likely contributory negligence; and she did not provide a full and satisfactory explanation for the delay, particularly for the period before retaining her solicitor. Independently, the defendant established estoppel per rem judicatam because the plaintiff had consented in the Local Court to judgment for the full uncompromised property damage claim, and the words "without admission of liability" were treated as surplusage.

Court Disposition

Summons dismissed; plaintiff ordered to pay defendant's costs; liberty to restore granted in relation to costs and any other post-judgment application.

Orders

  • ['Summons filed on 31 August 2015 dismissed.' "Plaintiff pay defendant's costs." 'Liberty to restore in relation to costs and to any other post-judgment application.']