Said Jawid Adilzada v The Nominal Defendant [2013] NSWDC 242

Said Jawid Adilzada v The Nominal Defendant [2013] NSWDC 242

The defendant's motion was dismissed because the court was satisfied that due inquiry and search had been made, including newspaper notices and advice to place flyers, and further inquiries were likely to be futile because the trail had gone cold. The plaintiff also provided a full and satisfactory explanation for both the late claim and the delay in commencing proceedings: he was a young recent migrant with limited English whose father and a migrant service initially pursued the claim against the CTP insurer, legal advice was sought after the insurer denied liability, and later delay was attributable to solicitors on whom the plaintiff was entitled to rely. The damages threshold in s...

Jurisdiction
Australia
Judgment Date
13 December 2013
Procedural Posture
Civil Motor Accidents Compensation Proceeding / Interlocutory Application: Defendant's Notice of Motion to Strike Out or Dismiss Statement of Claim; Plaintiff Seeking Leave Under S 109 of the Motor Accidents Compensation Act 1999 Nunc Pro Tunc
Outcome
Defendant's Notice of Motion dismissed; plaintiff granted leave to commence proceedings nunc pro tunc.
Legal Topics
['late Claim' 'leave to Commence Proceedings Out of Time' 'nominal Defendant' 'unidentified Vehicle' 'due Inquiry and Search' 'full and Satisfactory Explanation for Delay']
['motor Accidents Compensation' 'civil Procedure' 'personal Injury'] ['late Claim' 'leave to Commence Proceedings Out of Time' 'nominal Defendant' 'unidentified Vehicle' 'due Inquiry and Search' 'full and Satisfactory Explanation for Delay']

Case Brief

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Procedural Posture

Civil Motor Accidents Compensation Proceeding / Interlocutory Application: Defendant's Notice of Motion to Strike Out or Dismiss Statement of Claim; Plaintiff Seeking Leave Under S 109 of the Motor Accidents Compensation Act 1999 Nunc Pro Tunc

Legal Issues

  1. 1 ['Whether the Statement of Claim should be struck out or dismissed under ss 109(1), 73(5) or 34A(3) of the Motor Accidents Compensation Act 1999.' 'Whether the plaintiff provided a full and satisfactory explanation for the delay in making the claim and commencing proceedings.' 'Whether due inquiry and search to establish the identity of the unidentified vehicle had been made.' 'Whether leave should be granted under s 109 of the Motor Accidents Compensation Act 1999 to commence proceedings nunc pro tunc.']

Ratio Decidendi

The defendant's motion was dismissed because the court was satisfied that due inquiry and search had been made, including newspaper notices and advice to place flyers, and further inquiries were likely to be futile because the trail had gone cold. The plaintiff also provided a full and satisfactory explanation for both the late claim and the delay in commencing proceedings: he was a young recent migrant with limited English whose father and a migrant service initially pursued the claim against the CTP insurer, legal advice was sought after the insurer denied liability, and later delay was attributable to solicitors on whom the plaintiff was entitled to rely. The damages threshold in s...

Court Disposition

Defendant's Notice of Motion dismissed; plaintiff granted leave to commence proceedings nunc pro tunc.

Orders

  • ['That the Notice of Motion filed on 21 August 2012 by the Defendant be dismissed.' "That the Defendant pay the Plaintiff's costs of the Motion." 'That pursuant to s 109 of the Motor Accidents Compensation Act 1999 the Plaintiff be granted leave to commence proceedings by the filing of the Statement of Claim on 13...