Terry Elvey v Phillip McLennan [2020] NSWDC 773

Terry Elvey v Phillip McLennan [2020] NSWDC 773

The amended statement of claim was defective because it did not plead the alleged assault with the specificity required for the defendant to know the case to meet. Further, the pleaded assault was a tort and therefore capable of being fault within section 3 of the Motor Accidents Compensation Act 1999 (NSW); because the alleged injury arose from the use of the excavator as a motor vehicle and no certificate under section 92 or section 94 had issued when proceedings were commenced, the proceedings were commenced in contravention of the mandatory prohibition in section 108 and the amended statement of claim had to be dismissed.

Jurisdiction
Australia
Judgment Date
17 December 2020
Procedural Posture
Civil Procedural Motion / Defendant's Notice of Motion to Strike Out the Plaintiff's Amended Statement of Claim and Dismiss the Proceedings
Outcome
The plaintiff's amended statement of claim was dismissed; directions were made for any application for leave under section 109 of the Motor Accidents Compensation Act; costs were reserved.
Legal Topics
['statement of Claim Form and Content' 'strike Out of Pleadings' 'pre Condition for Commencement of Court Proceedings' 'intentional Torts Under the Motor Accidents Compensation Act 1999 (nsw)' 'claims Assessment or Exemption Certificate']
['civil Procedure' 'motor Accidents Compensation' 'torts'] ['statement of Claim Form and Content' 'strike Out of Pleadings' 'pre Condition for Commencement of Court Proceedings' 'intentional Torts Under the Motor Accidents Compensation Act 1999 (nsw)' 'claims Assessment or Exemption Certificate']

Case Brief

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Procedural Posture

Civil Procedural Motion / Defendant's Notice of Motion to Strike Out the Plaintiff's Amended Statement of Claim and Dismiss the Proceedings

Legal Issues

  1. 1 ["Whether the plaintiff's statement of claim and amended statement of claim complied with pleading requirements." 'Whether section 108 of the Motor Accidents Compensation Act 1999 (NSW) applied to a claim pleaded as assault arising from alleged use of a 20T excavator.' 'Whether proceedings commenced before issue of a certificate under section 92 or section 94 of the Motor Accidents Compensation Act 1999 (NSW) should be dismissed.']

Ratio Decidendi

The amended statement of claim was defective because it did not plead the alleged assault with the specificity required for the defendant to know the case to meet. Further, the pleaded assault was a tort and therefore capable of being fault within section 3 of the Motor Accidents Compensation Act 1999 (NSW); because the alleged injury arose from the use of the excavator as a motor vehicle and no certificate under section 92 or section 94 had issued when proceedings were commenced, the proceedings were commenced in contravention of the mandatory prohibition in section 108 and the amended statement of claim had to be dismissed.

Court Disposition

The plaintiff's amended statement of claim was dismissed; directions were made for any application for leave under section 109 of the Motor Accidents Compensation Act; costs were reserved.

Orders

  • ["The plaintiff's amended statement of claim be dismissed." 'The plaintiff is to file and serve by no later than 31 January 2021 a Summons seeking leave under section 109 of the Motor Accidents Compensation Act to commence proceedings in respect of his claim identified by the amended statement of claim just...