Keen v Nominal Defendant [2011] NSWDC 173

Keen v Nominal Defendant [2011] NSWDC 173

The evidence, particularly the second affidavit of Mr Piperides, provided a full account of the actions, knowledge and belief of the plaintiff and his solicitors. Before the conference with counsel on 8 March 2010 the plaintiff had no knowledge of a potential claim against Mr Bullen and believed the unidentified vehicle caused the accident; his solicitors had not considered possible fault by the truck driver until police material was later considered by counsel. Because a reasonable person in the plaintiff's position would have been justified in the same delay, the plaintiff provided a full and satisfactory explanation and was entitled to bring and maintain proceedings against the...

Jurisdiction
Australia
Judgment Date
10 November 2011
Procedural Posture
Civil Tort Motor Accident Personal Injury Claim / Interlocutory Applications: Plaintiff's Motion for Leave to File an Amended Statement of Claim Joining the Proposed Second Defendant, and Proposed Second Defendant's Counter Motion Seeking Dismissal of the Plaintiff's Motion
Outcome
Plaintiff's motion allowed; motion of the proposed second defendant dismissed.
Legal Topics
['failure to Make a Motor Accident Claim Within 6 Months' 'full and Satisfactory Explanation for Delay' 'joinder of Proposed Second Defendant' 'costs of Interlocutory Motions']
['tort' 'motor Accidents' 'civil Procedure'] ['failure to Make a Motor Accident Claim Within 6 Months' 'full and Satisfactory Explanation for Delay' 'joinder of Proposed Second Defendant' 'costs of Interlocutory Motions']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Tort Motor Accident Personal Injury Claim / Interlocutory Applications: Plaintiff's Motion for Leave to File an Amended Statement of Claim Joining the Proposed Second Defendant, and Proposed Second Defendant's Counter Motion Seeking Dismissal of the Plaintiff's Motion

Legal Issues

  1. 1 ['Whether the plaintiff provided a full account of the conduct, including the actions, knowledge and belief of the plaintiff, from the date of the accident until the providing of the explanation.' 'Whether a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay.' 'Whether the plaintiff was entitled to bring and maintain proceedings against the proposed second defendant despite not making a claim against him within 6 months of the motor accident.']

Ratio Decidendi

The evidence, particularly the second affidavit of Mr Piperides, provided a full account of the actions, knowledge and belief of the plaintiff and his solicitors. Before the conference with counsel on 8 March 2010 the plaintiff had no knowledge of a potential claim against Mr Bullen and believed the unidentified vehicle caused the accident; his solicitors had not considered possible fault by the truck driver until police material was later considered by counsel. Because a reasonable person in the plaintiff's position would have been justified in the same delay, the plaintiff provided a full and satisfactory explanation and was entitled to bring and maintain proceedings against the...

Court Disposition

Plaintiff's motion allowed; motion of the proposed second defendant dismissed.

Orders

  • ['The plaintiff is given leave to join Mr Bullen as the second defendant, and to file the proposed Amended Statement of Claim annexed to his motion filed on 30 June 2011.' 'The plaintiff is to pay the costs of the proposed second defendant in respect of both motions.']