GARLING v WILLIAMS [2007] NSWDC 22

New South Wales District Court

CITATION: GARLING v WILLIAMS [2007] NSWDC 22

HEARING DATE(S): 15 February 2007 EX TEMPORE JUDGMENT DATE : 16 February 2007

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

DECISION: 1. The statement of claim is dismissed 2. The plaintiff is to pay the defendant's costs of the proceedings, other than those directed to locating the defendant; 3. The affidavits and the exhibits are returned.

CATCHWORDS: Proceedings out of time - futility of granting leave

LEGISLATION CITED: Motor Accidents Compensation Act 1999

PARTIES: Ann Marise GARLING v Paul WILLIAMS

FILE NUMBER(S): Newcastle 169/06

P J Kirby - Plaintiff COUNSEL: P R Cummings - Defendant

King Street Lawyers - Plaintiff SOLICITORS: Sparke Helmore - Defendant

JUDGMENT

HER HONOUR

1 This matter comes before the court by motion filed on behalf of the defendant seeking an order dismissing the statement of claim filed for the plaintiff, Ann Marise Garling, on 26 April 2006.

2 The basis for the application is that the statement of claim relates to a motor vehicle accident that occurred on 14 April 2002 and that therefore the leave of the court is required to commence the proceedings pursuant to section 109(1) of the Motor Accidents Compensation Act 1999.

3 It was conceded by the plaintiff that leave was required and the parties agreed that I should deal with the issue of whether leave should be granted before determining the application.

4 A brief chronology is as follows.

5 The motor vehicle accident occurred on 14 April 2002. The plaintiff sought legal advice from Bale Boshev Solicitors in the same month. In September 2004 she consulted King Street Lawyers and a claim form was lodged after that consultation with NRMA. After initially rejecting the explanation for the delay in lodging the claim, the insurer accepted it as adequate.