Leibeck v RMQ Contracting Pty Ltd [2008] NSWDC 239

New South Wales District Court

CITATION: Leibeck v RMQ Contracting Pty Ltd [2008] NSWDC 239

HEARING DATE(S): 26 September, 2008

JUDGMENT DATE: 2 October 2008

JURISDICTION: District Court Civil

JUDGMENT OF: Levy SC DCJ

1. Plaintiff is granted leave nunc pro tunc to extend the time for filing his Statement of Claim to 7 March 2008. DECISION: 2. Defendant's motion to dismiss Plaintiff's claim is dismissed. 3. Defendant to pay the Plaintiff's costs in respect of each motion.

CATCHWORDS: Procedural motion – under Motor Accidents Act, 1999 to extend time for filing Statement of Claim – dependent on facts. - Expert evidence – whether Plaintiff is required at an early stage to demonstrate through expert evidence a viable claim in a motor accident case.

LEGISLATION CITED: Motor Accidents Compensation Act, 1999 s.66(2); s.92(1)(a); s.108; s.109

Adelaide Stevedoring Co Limited v Forst (1940) 64 CLR 538 CASES CITED: Clark v Ryan (1960) 10 CLR 483 McNamara v Fitzgibbon [2005] NSWCA 274

PARTIES: Ronald Allen Leibeck (Plaintiff) RMQ Contracting Pty Ltd (Defendant)

FILE NUMBER(S): 0819 of 2008

COUNSEL: Mr A McSpedden (Plaintiff) Mr G Smith (Defendant)

SOLICITORS: Bell Lawyers (Plaintiff) TL Lawyers (Defendants)

JUDGMENT

Introduction

1. Two matters arise for determination. The Plaintiff's Notice of Motion seeks an order nunc pro tunc seeking leave to validate the proceedings already commenced on 7 March 2008 contrary to the requirements of the scheme of the Motor Accidents Compensation Act, 1999. The Plaintiff seeks such leave because of the unusual circumstances in which his claim has arisen. The Defendant's Notice of Motion seeks dismissal of the Plaintiff's proceedings for non-compliance with the requirements of Section 109(2) of the Act.