Said Jawid Adilzada v The Nominal Defendant [2013] NSWDC 242

District Court New South Wales

Medium Neutral Citation: Said Jawid Adilzada v The Nominal Defendant [2013] NSWDC 242 Hearing dates: 28-29 November 2013 Decision date: 13 December 2013 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Defendant's Notice of Motion dismissed. For Orders see [64] Catchwords: Late claim; leave to commence proceedings Legislation Cited: Motor Accidents Compensation Act 1999 Cases Cited: Walker v Howard [2009] NSWCA 408 Harrison v Nominal Defendant (1976) 50 ALJR 330 Nominal Defendant v Meakes [2012] NSWCA 66 Rippon v Chilcotton (2001) 53 NSWLR 198 Nominal Defendant (NSW) v Skrypka (1990) 11 MVR 155 Walker v Howard (2009) 78 NSWLR 161 Smith v Grant [2006] NSWCA 244 Nominal Defendant v Swift [2007] NSWCA 56 Blandford v Fox (1944) 45 SR (NSW) 241 Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 Category: Interlocutory applications Parties: Said Jawid Adilzada - Plaintiff The Nominal Defendant - Defendant Representation: D Campbell SC with T Meakes - Plaintiff W Fitzsimmons - Defendant Paramount Lawyers Curwoods Lawyers File Number(s): 12/218232 Publication restriction: Nil

Judgment

Introduction 1By Notice of Motion filed on 21 August 2012 the defendant seeks the following orders: (1)The Statement of Claim filed on 13 July 2012 be struck out pursuant to s 109(1) of the Motor Accidents Compensation Act 1999 ("MACA"). (2)The Statement of Claim filed on 13 July 2012 be dismissed pursuant to s 73(5) of MACA. (3)The Statement of Claim filed on 13 July 2012 be dismissed pursuant to s 34A(3) of MACA. (4)The plaintiff pay the defendant's costs of the Motion. 2The plaintiff contests that application and seeks leave pursuant to s 109 of MACA, nunc pro tunc, to bring proceedings which were commenced by filing a Statement of Claim on 13 July 2012. 3The plaintiff was a passenger in a motor vehicle driven by his brother, Said Mohajid Adilzada on 18 October 2007 on Kidman Way, Griffith. The plaintiff alleges that the vehicle being driven by his brother was forced off the roadway by an unidentified vehicle travelling in the opposite direction, which travelled onto its incorrect side of the roadway and thereby forced the plaintiff's brother to take evasive action. The vehicle in which the plaintiff was travelling left the roadway and collided with a tree. 4The plaintiff was born on 22 December 1988 in Afghanistan and moved to Australia with his family in 2006. He was attending school in 2007 when the accident occurred. It is not in issue that he suffered severe physical injuries as a result of the accident and was admitted to Griffith Base Hospital on 18 October 2007 and discharged on 26 October 2007. 5The plaintiff's brother, Mohajid, has brought an application for leave to commence proceedings pursuant to s 109 MACA, and both applications were heard together, with the evidence on this application also being evidence on the related matter.