Ly v Mukdassi [2013] NSWDC 257

Ly v Mukdassi [2013] NSWDC 257

Mrs Ly gave a full account of her relevant actions, knowledge and belief: she suffered psychological symptoms after witnessing her son's accident, was unaware she could claim for psychological injury, believed claims were only for physical injuries, was not advised by her first solicitors about her own entitlement, and had unfamiliarity with the language and legal system. A reasonable person in her position would have been justified in the same delay. The court was therefore satisfied that she had a full and satisfactory explanation under s 66 and s 73 of the Motor Accidents Compensation Act 1999, so the application to dismiss had to be dismissed.

Jurisdiction
Australia
Judgment Date
19 July 2013
Procedural Posture
Motor Accident Compensation Claim Involving a Late Claim for Psychological Injury / Interlocutory Application by Defendant's Insurer to Dismiss Proceedings on the Ground of Delay Under S 73(5) of the Motor Accidents Compensation Act 1999
Outcome
Defendant's notice of motion dismissed; plaintiff's costs of the application to be the plaintiff's costs in the proceedings; matter stood over for directions.
Legal Topics
['notice of Claim' 'late Claim' 'limitation Period' 'full and Satisfactory Explanation for Delay' 'reasonable Person in the Position of the Claimant' 'costs Follow the Event']
['motor Accident Compensation' 'civil Procedure' 'costs'] ['notice of Claim' 'late Claim' 'limitation Period' 'full and Satisfactory Explanation for Delay' 'reasonable Person in the Position of the Claimant' 'costs Follow the Event']

Case Brief

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Procedural Posture

Motor Accident Compensation Claim Involving a Late Claim for Psychological Injury / Interlocutory Application by Defendant's Insurer to Dismiss Proceedings on the Ground of Delay Under S 73(5) of the Motor Accidents Compensation Act 1999

Legal Issues

  1. 1 ['Whether the plaintiff provided a full and satisfactory explanation for making her motor accident claim more than six months after the accident.' "Whether a reasonable person in the plaintiff's position would have been justified in experiencing the same delay." "Whether the defendant's notice of motion to dismiss the proceedings on the ground of delay should be dismissed." 'What costs order should be made on the interlocutory application.']

Ratio Decidendi

Mrs Ly gave a full account of her relevant actions, knowledge and belief: she suffered psychological symptoms after witnessing her son's accident, was unaware she could claim for psychological injury, believed claims were only for physical injuries, was not advised by her first solicitors about her own entitlement, and had unfamiliarity with the language and legal system. A reasonable person in her position would have been justified in the same delay. The court was therefore satisfied that she had a full and satisfactory explanation under s 66 and s 73 of the Motor Accidents Compensation Act 1999, so the application to dismiss had to be dismissed.

Court Disposition

Defendant's notice of motion dismissed; plaintiff's costs of the application to be the plaintiff's costs in the proceedings; matter stood over for directions.

Orders

  • ["Defendant's notice of motion (filed 19 March 2013) be dismissed." "Plaintiff's costs of the application be the plaintiff's costs in the proceedings." 'Stand over for directions on 9 September 2013 at 9.30am before the Judicial Registrar.']