Dahdah v Witte [2023] NSWCA 304

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Dahdah v Witte [2023] NSWCA 304 Hearing dates: 10 August 2023 Decision date: 13 December 2023 Before: White JA at [1]; Mitchelmore JA at [114]; Griffiths AJA at [115] Decision: (1) Grant the applicant leave to appeal. (2) Direct that within seven days the applicant file a notice of appeal in the terms of the draft notice of appeal at tab 4 of the White Folder. (3) Dispense with service of the notice of appeal. (4) Allow the appeal. (5) Set aside the orders of the court below made on 29 November 2022 dismissing the appellant's notice of motion dated 25 July 2022 with costs and dismissing the proceedings with costs. (6) In lieu thereof order that: (a) the respondent's notice of motion dated 12 July 2022 be dismissed with costs; (b) the appellant have leave to commence proceedings 2022/00160083 nunc pro tunc; (c) the respondent pay the appellant's costs of the appellant's notice of motion dated 25 July 2022. (7) The respondent pay the appellant's costs of the application for leave to appeal, and the appeal. (8) Remit the proceedings to the District Court. Catchwords: TORTS – Motor vehicle accident – Late claims – Requirement for "full and satisfactory explanation" – Where applicant sought leave to institute proceedings under Motor Accidents Compensation Act 1999 (NSW) outside of time prescribed by s 109 – Where primary judge refused leave on basis that applicant had not provided "full and satisfactory explanation" for delay within meaning of ss 66(2) and 109(3)(a) of Motor Accidents Compensation Act – Where applicant delayed in raising symptoms said to have been caused by collision with doctor for some years thereafter – Where insurer accepted explanation for delay in lodging claim – Where applicant briefed son as solicitor on claim after time for instituting claim as of right had lapsed – Where applicant claimed privilege over email instructing son to act – Where neither applicant nor son cross-examined – Whether applicant's explanation of reliance on respondent's insurer and ignorance of right to make claim "full and satisfactory" – Whether claim of privilege over correspondence with legal representative inconsistent with obligation to provide "full and satisfactory explanation" – Held that applicant satisfies s 109(3)(a) of Motor Accidents Compensation Act TORTS – Motor vehicle accident– Late claims – Requirement that "total damages of all kinds likely to be awarded" to claimant if claim should succeed exceeds amount prescribed by s 109(3)(b) of Motor Accidents Compensation Act – Where primary judge made no findings as to damages likely to be awarded to applicant if claim should succeed – Where medical evidence as to nature and extent of applicant's injuries diverges significantly – Whether Court should resolve matter adversely to applicant on basis of medical reports adduced by respondent – Held that total damages of all kinds likely to be awarded to applicant if claim should succeed exceeds amount prescribed by s 109(3)(b) of Motor Accidents Compensation Act WORDS AND PHRASES – "Full and satisfactory explanation" – "Likely to be awarded" Legislation Cited: Motor Accidents Act 1988 (NSW) Motor Accidents Compensation Act 1999 (NSW), ss 5, 66, 72, 73, 80, 82, 94, 95, 108, 109, 134, 146 Motor Accidents Compensation (Determination of Loss) Amendment Order 2016 (NSW), cl 3(2) Cases Cited: Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39 Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319; [1991] HCA 28 Diaz v Truong [2002] NSWCA 265; (2002) 37 MVR 158 Dijakovic v Perez [2015] NSWCA 174; (2015) 71 MVR 334 Eades v Gunestepe [2012] NSWCA 204; (2012) 61 MVR 328 Figliuzzi v Yonan [2005] NSWCA 290 Glencore International AG v Commissioner of Taxation (2019) 265 CLR 646; [2019] HCA 26 Harika v Tupaea (2003) 58 NSWLR 675; [2003] NSWCA 332 Hunter v Roberts [2019] NSWCA 116; (2019) 88 MVR 456 Karambelas v Zaknic (No 2) [2014] NSWCA 433; (2014) 69 MVR 127 Rahman v Al-Maharmeh [2021] NSWCA 31; (2021) 95 MVR 394 Russo v Aiello [2001] NSWCA 306; (2001) 34 MVR 234 Sinclair v Darwich (2010) 77 NSWLR 166; [2010] NSWCA 195 Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408 Wentworth v Lloyd (1864) 10 HLC 589; 11 ER 1154 Category: Principal judgment Parties: John Dahdah (Applicant/Appellant) Trevor Witte (Respondent) Representation: Counsel: F C Corsaro SC with F F F Salama (Applicant/Appellant) J Catsanos SC with M P Nesbeth and G I Adams (Respondent)