Leibeck v RMQ Contracting Pty Ltd [2008] NSWDC 239

Leibeck v RMQ Contracting Pty Ltd [2008] NSWDC 239

The Plaintiff gave a full and satisfactory explanation for the relevant periods of delay: after the certificate of exemption was issued, his solicitor acted reasonably and promptly to consider certification, consult the Plaintiff, formulate and file proceedings, and thereafter complied with court timetables. A reasonable person in the Plaintiff's position would have acted similarly. The Defendant's futility argument failed because the Plaintiff was not required at this early stage to support his motor accident negligence claim with expert evidence. Accordingly, time was extended nunc pro tunc to 7 March 2008 and the Defendant's dismissal motion was refused.

Jurisdiction
Australia
Judgment Date
02 October 2008
Procedural Posture
District Court Civil Procedural Motions Under the Motor Accidents Compensation Act, 1999 / Plaintiff's Notice of Motion for Leave Nunc Pro Tunc to Extend Time for Filing the Statement of Claim and Defendant's Notice of Motion to Dismiss the Proceedings
Outcome
Plaintiff granted leave nunc pro tunc to extend time; Defendant's motion to dismiss dismissed; Defendant ordered to pay the Plaintiff's costs of each motion.
Legal Topics
['extension of Time to Commence Proceedings' 'full and Satisfactory Explanation for Delay' 'certificate of Exemption' 'dismissal for Non Compliance With Statutory Time Limits' 'expert Evidence in Motor Accident Claims']
['motor Accidents Compensation' 'civil Procedure' 'negligence' 'limitation of Actions'] ['extension of Time to Commence Proceedings' 'full and Satisfactory Explanation for Delay' 'certificate of Exemption' 'dismissal for Non Compliance With Statutory Time Limits' 'expert Evidence in Motor Accident Claims']

Case Brief

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Procedural Posture

District Court Civil Procedural Motions Under the Motor Accidents Compensation Act, 1999 / Plaintiff's Notice of Motion for Leave Nunc Pro Tunc to Extend Time for Filing the Statement of Claim and Defendant's Notice of Motion to Dismiss the Proceedings

Legal Issues

  1. 1 ['Whether the Plaintiff should be granted leave nunc pro tunc under the Motor Accidents Compensation Act, 1999 to validate proceedings commenced on 7 March 2008.' 'Whether the Plaintiff provided a full and satisfactory explanation for the relevant periods of delay.' "Whether the Defendant's motion to dismiss the proceedings for non-compliance with s 109(2) of the Motor Accidents Compensation Act, 1999 should be granted." 'Whether it would be futile to extend time because the Plaintiff had not produced expert evidence establishing a viable claim under the Motor Accidents Compensation Act, 1999.']

Ratio Decidendi

The Plaintiff gave a full and satisfactory explanation for the relevant periods of delay: after the certificate of exemption was issued, his solicitor acted reasonably and promptly to consider certification, consult the Plaintiff, formulate and file proceedings, and thereafter complied with court timetables. A reasonable person in the Plaintiff's position would have acted similarly. The Defendant's futility argument failed because the Plaintiff was not required at this early stage to support his motor accident negligence claim with expert evidence. Accordingly, time was extended nunc pro tunc to 7 March 2008 and the Defendant's dismissal motion was refused.

Court Disposition

Plaintiff granted leave nunc pro tunc to extend time; Defendant's motion to dismiss dismissed; Defendant ordered to pay the Plaintiff's costs of each motion.

Orders

  • ['Time for commencing the proceedings is extended nunc pro tunc until 7 March 2008.' "The Defendant is to pay the Plaintiff's costs of the Plaintiff's motion filed on 27 May 2008." "The Defendant's motion filed on 21 May 2008 is dismissed." "The Defendant is to pay the Plaintiff's costs of the Defendant's motion."]