Keen v Nominal Defendant [2011] NSWDC 173

District Court New South Wales

Medium Neutral Citation: Keen v Nominal Defendant [2011] NSWDC 173 Hearing dates: 27 October and 4 November 2011 Decision date: 10 November 2011 Jurisdiction: Civil Before: Judge Peter Johnstone Decision: Plaintiff's motion allowed Motion of second proposed defendant dismissed Catchwords: TORT - motor accident - failure to make a claim within 6 months - whether the plaintiff provided a full and satisfactory explanation for the delay Legislation Cited: Motor Accidents Compensation Act 1999 Cases Cited: Ellis v Reko Limited [2010] NSWCA 319 Walker v Howard [2009] NSWCA 408 Category: Interlocutory applications Parties: Wayne Barry Robert Keen (Plaintiff) Nominal Defendant (First Defendant) Kerry Robert Bullen (Proposed Second Defendant) Representation: Mr A Campbell of counsel (Plaintiff) Mr Hickey (First Defendant) Mr J Gracie of counsel (Proposed Second Defendant) Benjamin & Robinson (Plaintiff) Curwoods Lawyers (First Defendant) Rankin Nathan Lawyers (Proposed Second Defendant) File Number(s): 2009/338517 Publication restriction: None

REASONS FOR Judgment 1The plaintiff was injured in a motor accident on 23 December 2008. He commenced these proceedings against the Nominal Defendant on 10 December 2009 , alleging that the accident was caused by the driver of an unidentified vehicle. 2A year and a half later, on 30 June 2011, the plaintiff filed a motion seeking leave to file an Amended Statement of Claim joining Mr Bullen as a second defendant to the proceedings. 3The proposed second defendant opposes the plaintiff's motion. He filed a counter motion on 31 August 2011 seeking dismissal of the plaintiff's motion. He says that the plaintiff is not entitled to commence or maintain proceedings against him because the plaintiff did not give notice of any claim against him within 6 months of the motor accident, and has not provided a full and satisfactory explanation for that delay: s 72 and s 73 of the Motor Accidents Compensation Act 1999 (the MAC Act) .