Said Mohajid Adilzada by his next friend Said Taqee Adilzada v The Nominal Defendant [2013] NSWDC 243

District Court New South Wales

Medium Neutral Citation: Said Mohajid Adilzada by his next friend Said Taqee Adilzada v The Nominal Defendant [2013] NSWDC 243 Hearing dates: 28-29 November 2013 Decision date: 13 December 2013 Before: Mahony SC DCJ Decision: Leave to commence proceedings granted; for Orders see [67] Catchwords: Leave to extend time; strike out applications Legislation Cited: Motor Accidents Compensation Act 1999 Cases Cited: Walker v Howard [2009] NSWCA 408 Ellis v Reko Pty Limited [2010] NSWCA 319 Salido v Nominal Defendant (1993) 32 NSWLR 524 Smith v Grant (2006) 67 NSWLR 735 Khoury v Linfox Australia Pty Limited [2006] NSWCA 51 Walker v Howard (2009) 78 NSWLR 161 Smith v Grant [2006] NSWCA 244 Figluzzi v Yonan [2005] NSWCA 290 Russo v Aiello (2003) 215 CLR 643 Category: Interlocutory applications Parties: Said Mohajid Adilzada - Plaintiff The Nominal Defendant - Defendant Representation: D Campbell SC with T Meakes - Plaintiff W Fitzsimmons - Defendant Paramount Lawyers Curwoods Lawyers File Number(s): 11/238752 Publication restriction: Nil

Judgment

Introduction 1By summons filed on 11 November 2011 the plaintiff seeks leave pursuant to ss 73 and 109 of the Motor Accidents Compensation Act 1999 ("MACA") to bring proceedings by an Amended Statement of Claim filed on 21 March 2012, nunc pro tunc. 2The defendant, by Notice of Motion dated 20 September 2011, has sought an order that the Statement of Claim filed on 25 July 2011 be struck out. That application is based on the plaintiff's commencement of the proceedings out of time and therefore extends to the Amended Statement of Claim filed on 21 March 2012. 3The claim sought to be brought by the plaintiff concerns an incident on 18 October 2007 when he was driving motor vehicle registration number UBQ 439 in a southerly direction along Kidman Way, Griffith. The plaintiff's younger brother, Said Jawid Adilzada ("Jawid"), was travelling as a passenger in the rear seat of the vehicle being driven by the plaintiff. The plaintiff alleges that the vehicle he was driving was forced off the roadway when an unidentified vehicle travelling north travelled onto its incorrect side of the roadway and into the plaintiff's lane, causing the plaintiff to take evasive action by swerving to the left, whereupon he lost control, left the roadway and collided with a tree. 4The plaintiff sustained severe injuries including a traumatic brain injury. His brother also suffered severe physical injuries and has sought leave to commence proceedings in a related matter heard together with this application. The plaintiff has not given evidence on the application and an order was made that evidence in the related application is evidence on this application. 5The plaintiff relies on the following evidence: Affidavit of Jason Di Michiel sworn 22 March 2012 Affidavit of Jason Di Michiel sworn 27 September 2012 Affidavit of Jason Di Michiel sworn 30 October 2012 Affidavit of Said Jawid Adilzada sworn 2 October 2012. Affidavit of Said Taqee Adilzada sworn 10 June 2012 6Both Said Taqee Adilzada and Said Jawid Adilzada were cross-examined on their affidavits. 7The defendant relied on an affidavit of Ian Robert Jones sworn on 20 September 2011, together with a number of documents (exhibits 1-5). 8Other evidence included exhibits A to D which were as follows: Exhibit A - Albury Base Hospital Clinical Notes Exhibit B - Plaintiff's Claim Form, together with letter of service dated 9 April 2010 Exhibit C - Police Report Exhibit D - Plaintiff's brother's claim form dated 13 February 2008.