Peter Emerton v Rachelle McDonald [2009] NSWDC 26

New South Wales District Court

CITATION: Peter Emerton v Rachelle McDonald [2009] NSWDC 26

EX TEMPORE JUDGMENT DATE : 19 February 2009

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

1. The Proceedings are dismissed. DECISION: 2. The plaintiff is to pay the defendant's costs of the motion and those of the proceedings to date. 3. The affidavit materials are returned.

CATCHWORDS: Dismissal of proceedings – Failure to comply with s 85(4) of the Act in providing information

LEGISLATION CITED: Motor Accidents Compensation Act 1999

CASES CITED: Hill v Bolt (1992) 16 MVR 183

Peter Emerton (Plaintiff) PARTIES: Rachelle McDonald (First Defendant) Orix Australia Corporation Limited (Second Defendant)

FILE NUMBER(S): 244/08

COUNSEL: Mr Smith (Plaintiff) Mr Cummings (First and Second Defendants)

SOLICITORS: Turnbull Hill Lawyers (Plaintiff) TL Lawyers (First and Second Defendants)

JUDGMENT

1 In this matter the plaintiff commenced proceedings on 1 August 2008 in respect of an accident that occurred on 8 August 2005. The defendant, by motion, seeks an order dismissing the proceedings on the basis that the plaintiff commenced proceedings in breach of s 85(4) of the Motor Accidents Compensation Act 1999. That section prohibits the plaintiff from commencing proceedings in respect of a claim while the claimant fails, without reasonable excuse, to comply with the obligations imposed upon him or her pursuant to the section. Those obligations involve full co-operation with the defendant or the defendant's insurer for the purpose of giving the defendant sufficient information concerning certain aspects of the claim.