Terry ELVEY v Phillip MCLENNAN [2021] NSWDC 103

The plaintiff failed to provide a full and satisfactory explanation for the delay in commencing proceedings, and it was not likely that the damages recoverable would exceed the statutory threshold. Accordingly, leave to proceed was refused and the plaintiff's summons dismissed.

Parties: Plaintiff: Terry Elvey; Defendant: Phillip McLennan
Jurisdiction: Australia
Judgment Date: 01 April 2021
Procedural Posture: Civil / Application for Leave to Commence Proceedings After Limitation Period
Outcome: Leave to commence proceedings refused; proceedings dismissed.
Legal Topics: Leave to Commence Action, Statutory Limitation Periods, Motor Accidents Compensation

Civil Procedure Personal Injury Leave to Commence Action Statutory Limitation Periods Motor Accidents Compensation

Case Brief

Summary, issues, holding and outcome

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Parties

Terry Elvey

Plaintiff

Phillip McLennan

Defendant

Procedural Posture

Civil / Application for Leave to Commence Proceedings After Limitation Period

Legal Issues

1 Whether leave should be granted to commence proceedings more than three years after the incident under section 109 of the Motor Accidents Compensation Act 1999 (NSW)
2 Whether the plaintiff has provided a full and satisfactory explanation for the delay
3 Whether the likely damages would exceed the statutory threshold for non-economic loss

Ratio Decidendi

Court Disposition

Leave to commence proceedings refused; proceedings dismissed.

Orders

Plaintiff's summons is dismissed.
To the extent that the recently filed statement of claim may be valid, it is dismissed.