Stanley v Drew [2006] NSWSC 123

New South Wales Supreme Court

CITATION : Stanley v Drew [2006] NSWSC 123

HEARING DATE(S) : 6 March 2006

JUDGMENT DATE : 10 March 2006

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Harrison

DECISION : (1) Leave to commence proceedings is refused; (2) The plaintiff's amended notice of motion filed 26 August 2005 is dismissed; (3) These proceedings are dismissed; (4) The plaintiff is to pay the defendant's costs of both motions as agreed or assessed.

CATCHWORDS : Leave to commence proceedings - s 52(4) MAA - dismiss proceedings

LEGISLATION CITED : Motor Accidents Act 1988 - s 52(3) & (4)

CASES CITED : Parsons v Dovkas [2001] NSWCA 128 Salido v Nominal Defendant (1993) 32 NSWLR 524

Vickie Louise Bucknall & Stacey Anne Logue (as executrixes of the estate of the late Susan Joy Stanley) (Plaintiff) PARTIES : Gladys Rachel Drew (Defendant)

FILE NUMBER(S) : SC 20464/2004

Mr M L Williams SC (Plaintiff) COUNSEL : Mr R R Bartlett SC (Defendant)

Firths (Plaintiff) SOLICITORS : Hunt & Hunt (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 10 MARCH 2006

20464/2004 - VICKI LOUISE BUCKNALL & STACEY ANNE LOGUE (as executrixes of the estate of the late SUSAN JOY STANLEY) v GLADYS RACHEL DREW

JUDGMENT (Leave to commence proceedings – s 52(4) MAA; dismiss proceedings) 1 HER HONOUR: There are two notices of motion before the court. By notice of motion filed 28 March 1995, the defendant seeks, an order that these proceedings be dismissed. By amended notice of motion filed 26 August 2005 Vicki Louise Bucknall and Stacey Anne Logue, plaintiffs (as executrixes of the estate of the late Susan Joy Stanley (deceased) pursuant to grant of Probate made on 8 August 2005) seeks an order that the application filed in court on behalf of the plaintiff on 13 June 1995 whereby the plaintiff sought leave to commence these proceedings out of time pursuant to s 52(4) of the Motor Accidents Act 1988 (MAA) be restored to the list. 2 The plaintiff relied on her affidavit sworn 18 November 2004, an affidavit of Kenneth Albert Baker sworn 30 September 2004 and an affidavit of Stephen Paul Firth sworn 18 November 2004. The defendant relied on the affidavit of David Robert Grant sworn 6 May 2005 and John Paffey sworn 8 August 2005. 3 On 24 December 1988 the plaintiff was driving a motor vehicle which was stationary at a giveway sign at the intersection of Oxley Highway and Newell Highway, Gilgandra when she was struck from behind by a Holden panel van. The plaintiff was taken by ambulance to Gilgandra Hospital where she was treated by Dr A E Pollard. About one week after the accident the plaintiff consulted a solicitor Kenneth Albert Baker of Quirk Davidson Baker at Dubbo.