Gudelj v Tihic [2012] NSWDC 87

District Court New South Wales

Medium Neutral Citation: Gudelj v Tihic [2012] NSWDC 87 Hearing dates: 07/06/2012 Decision date: 18 June 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.The Notice of Motion filed by the defendant on 20 October 2011 seeking dismissal of the plaintiff's proceedings is dismissed; 2.The defendant is to pay the plaintiff's costs of the dismissed motion; 3.Pursuant to s 109 of the Motor Accidents Compensation Act 1999, the plaintiff is granted leave to commence these proceedings, with effect from 27 September 2011; 4.Pursuant to s 73 of the Motor Accidents Compensation Act 1999, declaration that the plaintiff has provided a full and satisfactory explanation for the delay in making the claim comprising these proceedings; 5.Each party is to pay their own costs of the Notice of Motion filed on 7 June 2012 by which orders were sought pursuant to s 73 and s 109 of the Motor Accidents Compensation Act 1999. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: LIMITATION OF ACTIONS - consideration of s 73 and s 109(3) of Motor Accidents Compensation Act 1999 - insurer's application for dismissal of plaintiff's claim - whether plaintiff has provided full and satisfactory explanation for delay - whether relevant prejudice arises Legislation Cited: Motor Accidents Compensation Act 1999, s 66, s 72, s 73, s 81, s 91, s 92, s 94, s 96, s 108, s 109 Cases Cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Diaz v Truong [2002] NSWCA 265 Ellis v Reko Pty Limited [2010] NSWCA 319 Figliuzzi v Yonan [2005] NSWCA 29 Gudelj v MAA [2009] NSWSC 436 Gudelj v MAA [2011] NSWCA 158 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735 Taylor v Chown [2010] NSWDC 63 Walker v Howard [2009] NSWCA 408 Category: Procedural and other rulings Parties: Darko Gudelj (Plaintiff/respondent) Vanessa Tihic (Defendant/applicant) Representation: Mr E Romaniuk (Plaintiff/respondent) Mr D Ronzani (Defendant/applicant) Slater & Gordon (Plaintiff/respondent) Curwoods (Defendant/applicant) File Number(s): 2011/310378 Publication restriction: None