Keller v Keller [2009] NSWDC 172

New South Wales District Court

CITATION: Keller v Keller [2009] NSWDC 172

HEARING DATE(S): 22 June 2009

JUDGMENT DATE: 29 June 2009

JURISDICTION: Civil

JUDGMENT OF: Williams DCJ at 1

DECISION: Leave to commence proceedings is refused. The plaintiff should pay the defendant's costs of the notice of motion on the basis that both motions were heard together and treated as the one motion. In other words, there should be only one set of costs.

CATCHWORDS: LIMITATIONS - Motor Accidents Compensation Act - application for leave to commence proceedings - full and satisfactory explanation - no full account of plaintiff's knowledge and belief - time limit in s 109 (2)

LEGISLATION CITED: Motor Accidents Compensation Act

CASES CITED: Figliuzzi v Yonan 2005 NSWCA 290 Holt v Wynter (2000) 49 NSWLR 128

PARTIES: Jodie KELLER Jonathon KELLER

FILE NUMBER(S): 312/09

COUNSEL: Mr Wilson for Plaintiff Mr Guihot for Defendant

SOLICITORS: Stacks Southern Lawyers Moray & Agnew

1. Mrs Keller was injured in a motor vehicle accident that occurred on 6 July 2000 when a vehicle driven by her then boyfriend, but now husband, failed to stop at a T-intersection and collided with headstones in a cemetery. He was breathalysed with a reading of 0.04. Ms Keller was aged eighteen years and five months, having been born on 23 February 1982. She completed the HSC in 1999 and was working at a Goulburn apartment store.

2. She was taken by ambulance to Goulburn Base Hospital but not admitted. The next day she felt faint and re-attended Goulburn Base Hospital and had a day off work.

3. Thereafter she says she experienced ongoing neck pain in increasing severity and obtained symptomatic relief by way of physiotherapy and analgesia prescribed by her general practitioners until in 2007 when she was referred for an MRI and to see a specialist from whom she received some injections.