Edwards v Devine [2011] NSWDC 2

Edwards v Devine [2011] NSWDC 2

The plaintiff was entitled to an extension of time because, in the circumstances of her serious and unstable psychiatric and physical injuries, her reliance on her solicitor, the ongoing dispute about whole person impairment and entitlement to non-economic loss, and Allianz's awareness of and access to extensive medical and claims material, a reasonable person in her position would have experienced the delay. The defendant did not establish significant prejudice sufficient to undermine the likelihood of a fair trial, and because it chose to contest a compelling application, costs should follow the event in the plaintiff's favour.

Jurisdiction
Australia
Judgment Date
27 January 2011
Procedural Posture
Application by Summons for Leave Under S 109(1) of the Motor Accidents Compensation Act 1999 to Commence Motor Accident Proceedings Out of Time / District Court Determination of Plaintiff's Summons for Extension of Time and Costs
Outcome
The plaintiff's summons was granted; time to commence the proposed proceedings was extended and the defendant was ordered to pay the plaintiff's costs of the summons.
Legal Topics
['leave to Commence Proceedings Out of Time' 'full and Satisfactory Explanation for Delay' 'prejudice and Fair Trial' 'particulars of Claim' 'costs Following the Event']
['motor Accidents Compensation' 'limitation of Actions' 'civil Procedure' 'costs'] ['leave to Commence Proceedings Out of Time' 'full and Satisfactory Explanation for Delay' 'prejudice and Fair Trial' 'particulars of Claim' 'costs Following the Event']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Application by Summons for Leave Under S 109(1) of the Motor Accidents Compensation Act 1999 to Commence Motor Accident Proceedings Out of Time / District Court Determination of Plaintiff's Summons for Extension of Time and Costs

Legal Issues

  1. 1 ['Whether the plaintiff provided a full and satisfactory explanation sufficient for leave to commence proceedings outside the 3 year limitation period.' 'Whether the defendant was likely to suffer significant prejudice such that a fair trial of damages issues was unlikely.' 'What costs order should be made if the plaintiff obtained leave to proceed.']

Ratio Decidendi

The plaintiff was entitled to an extension of time because, in the circumstances of her serious and unstable psychiatric and physical injuries, her reliance on her solicitor, the ongoing dispute about whole person impairment and entitlement to non-economic loss, and Allianz's awareness of and access to extensive medical and claims material, a reasonable person in her position would have experienced the delay. The defendant did not establish significant prejudice sufficient to undermine the likelihood of a fair trial, and because it chose to contest a compelling application, costs should follow the event in the plaintiff's favour.

Court Disposition

The plaintiff's summons was granted; time to commence the proposed proceedings was extended and the defendant was ordered to pay the plaintiff's costs of the summons.

Orders

  • ['The time for the plaintiff to commence the proposed proceedings is extended until 18 February 2011;' "The defendant is to pay the plaintiff's costs of the summons;" 'The exhibits may be returned;' 'Liberty to apply on 7 days notice if further orders are required.']