OSMAN v SINGH [1996] NSWCA 413

OSMAN v SINGH

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, SHELLER JA and ABADEE AJA 28 October 1996

[1996] NSWCA 413

SECTION 52(1A) MOTOR ACCIDENTS ACT 1988 — DISTRICT COURT RULES Pt 24C r 8 — FAILURE OF PLAINTIFF TO COMPLY WITH STIPULATED TIME PERIODS MAY BE RELIED ON AS A DEFENCE

Clarke JA. This is an application for leave to appeal from a judgment of Judge Nash given on 1 August 1996 at the termination of the hearing of a Notice of Motion brought by the opponent, seeking an order that the claimant's claim be struck out for breach of section 52(1A) of the Motor Accidents Act 1988.

The factual background was as follows: The claimant was injured in a motor vehicle accident on 17 June 1992; he first saw a solicitor concerning the injuries he received on 20 November 1995; his solicitor then sent by post an injury claim form to the insurers of the opponent on 13 December 1995; that form was received by the insurer on 20 December 1995 and accordingly, so it seems to me, service was effected on that date.

Shortly after sending the claim form the solicitor for the claimant filed a statement of claim in the District Court; that was on 15 December 1995 and the statement of claim was served on 19 December 1995.

There seems to have been an hiatus following the service of those documents but, on 17 April 1996, the opponent filed his original Notice of Motionseeking the orders which were made by Judge Nash, albeit as a consequence of an amended Notice of Motion.

At the hearing before Judge Nash the claimant argued that his Honour should not entertain the application because the opponent had failed to move in accordance with the District Court Rules, Pt 24C r 8. That rule relevantly provides that a defendant may not move a Court to strike out an action under the Act on the ground that the action was commenced outside a relevant time period as prescribed by operation of section 52 of the Motor Accidents Act, unless the defendant so moves within two months after service on the defendant or his insurer of the statement of claim bringing the action.