Mortimer v Moon [2011] NSWDC 53

District Court New South Wales

Medium Neutral Citation: Mortimer v Moon [2011] NSWDC 53 Hearing dates: 16 February 2011 Decision date: 25 February 2011 Jurisdiction: Civil Before: Judge Peter Johnstone Decision: Summons dismissed with costs Catchwords: TORT - motor accident - failure to commence proceedings within 3 years - failure to comply with a notice requiring commencement of proceedings within 3 months - claim deemed to have been withdrawn - application for reinstatement of the claim, and, if reinstated, for leave to commence proceedings out of time Legislation Cited: Motor Accidents Compensation Act 1999 Cases Cited: Ellis v Reko Pty Limited [2010] NSWCA 319 Walker v Howard [2009] NSWCA 408 Category: Principal judgment Parties: Cran Mortimer (Plaintiff) Hea Won Chi Moon (Defendant) Representation: Mr K Ryan (Plaintiff) Mr W Fitzsimmons (Defendant) Symons Cottee Lawyers (Plaintiff) Curwoods Layers (Defendant) File Number(s): 2010/117689 Publication restriction: None

Judgment 1The plaintiff was injured in a motor accident on 10 April 2006. He made a claim for damages under the Motor Accidents Compensation Act 1999 (the MAC Act), which the insurer denied. 2The plaintiff should have commenced proceedings for damages within 3 years, that is, by 10 April 2009, but failed to do so: s 109 of the MAC Act . He is therefore out of time. 3By Notice received on 22 December 2010 under s 110 of the MAC Act , the plaintiff was required by the insurer to commence proceedings within 3 months, that is, by 22 March 2011. The plaintiff failed to do. He is therefore taken to have withdrawn his claim.