Samar Abdul Rahman v Sarah Al-Maharmeh [2020] NSWDC 129

Samar Abdul Rahman v Sarah Al-Maharmeh [2020] NSWDC 129

The Plaintiff failed to provide a full and satisfactory explanation for the delay, including because there was a lacuna in the evidence about what occurred after instructions were given and before the time limit expired, and the evidence did not show that a reasonable person in the Plaintiff's position would have failed to comply or been justified in the same delay. In any event, the likely total damages did not reach the statutory threshold required by s109(3), so the Court's discretion to permit the proceedings to continue was not enlivened.

Jurisdiction
Australia
Judgment Date
20 April 2020
Procedural Posture
Civil Motor Accident Claim / Plaintiff's Notice of Motion Seeking Leave to Maintain Proceedings Notwithstanding S109 of the Motor Accidents Compensation Act 1999, and Defendant's Motion to Strike Out the Statement of Claim as Out of Time
Outcome
Leave to continue the proceedings was refused; the Plaintiff's Motion was dismissed; the Statement of Claim was dismissed; the Defendant's Motion was dismissed with no orders as to costs.
Legal Topics
['extension of Time to Commence Proceedings' 'full and Satisfactory Explanation for Delay' 'threshold for Damages Under S109(3)' 'gratuitous Domestic Assistance' 'future Commercial Domestic Assistance']
['motor Accidents Compensation' 'civil Procedure' 'limitation of Actions' 'damages'] ['extension of Time to Commence Proceedings' 'full and Satisfactory Explanation for Delay' 'threshold for Damages Under S109(3)' 'gratuitous Domestic Assistance' 'future Commercial Domestic Assistance']

Case Brief

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Procedural Posture

Civil Motor Accident Claim / Plaintiff's Notice of Motion Seeking Leave to Maintain Proceedings Notwithstanding S109 of the Motor Accidents Compensation Act 1999, and Defendant's Motion to Strike Out the Statement of Claim as Out of Time

Legal Issues

  1. 1 ['Whether the Plaintiff provided a full explanation for the delay from the date of the accident until the date of providing the explanation' 'Whether the Plaintiff provided a satisfactory explanation for the delay' 'Whether a reasonable person in the position of the Plaintiff would have failed to comply with the duty or been justified in experiencing the same delay' 'Whether the total damages likely to be awarded to the Plaintiff exceeded the requisite threshold of 25% of the maximum amount for non-economic loss']

Ratio Decidendi

The Plaintiff failed to provide a full and satisfactory explanation for the delay, including because there was a lacuna in the evidence about what occurred after instructions were given and before the time limit expired, and the evidence did not show that a reasonable person in the Plaintiff's position would have failed to comply or been justified in the same delay. In any event, the likely total damages did not reach the statutory threshold required by s109(3), so the Court's discretion to permit the proceedings to continue was not enlivened.

Court Disposition

Leave to continue the proceedings was refused; the Plaintiff's Motion was dismissed; the Statement of Claim was dismissed; the Defendant's Motion was dismissed with no orders as to costs.

Orders

  • ["the Defendant's Motion filed 28 August 2019 is dismissed with no orders as to costs" 'leave to the Plaintiff to continue these proceedings is refused in accordance with s109(3) of the Motor Accidents Compensation Act 1999' "the Plaintiff's Motion filed 3 October is dismissed" "the Plaintiff is to pay the...