Figliuzzi v Yonan [2005] NSWCA 290

New South Wales Court of Appeal

Figliuzzi v Yonan [2005] NSWCA 290 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27 July 2005

JUDGMENT DATE: 12 December 2005

JUDGMENT OF: Santow JA at 1; Tobias JA at 39; McColl JA at 123

DECISION: (1) Appeal allowed; (2) Set aside the orders made by Judge O'Toole on 6 August 2004 and in lieu thereof order that the Amended Notice of Application for Leave to Commence Proceedings filed in the District Court on 26 March 2004 be dismissed; (3) The respondent to pay the appellant's costs of the proceedings in the District Court and the costs of the Summons for Leave to Appeal and of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified

CATCHWORDS: LIMITATION OF ACTIONS – Extension of limitation period – Motor accident claim – Leave sought to commence out of time – Delay as a result of failure to obtain legal advice – Where plaintiff brought workers compensation claim in relation to accident – Where plaintiff unaware of entitlement to bring separate claim for damages – Where plaintiff worked in legal environment – Whether "full and satisfactory explanation" for delay provided – Whether reasonable person in plaintiff's position would have been justified in experiencing same delay – Prejudice to defendant by reason of delay – Motor Accidents Act 1988 ss 40(2), 52(4) - APPEALS – Appealable error – Judge's duty to provide reasons – Appeal from discretionary decision

Family Provision Act 1982 Legal Profession Act 1987 Legal Profession Amendment (Personal Injury Advertising) Regulation 2003 LEGISLATION CITED: Legal Profession Regulation 2002 Motor Accidents Act 1988 Suitors' Fund Act 1951 Workers Compensation Act 1987