Davis v Dagg [2012] NSWDC 303

District Court New South Wales

Medium Neutral Citation: Davis v Dagg [2012] NSWDC 303 Hearing dates: 25 May 2012 Decision date: 29 June 2012 Before: Olsson SC DCJ Decision: 1. Notice of Motion filed 23 March 2012 is dismissed. 2. Leave granted to plaintiff to file and serve Statement of Claim within 14 days. Catchwords: Leave to commence proceedings out of time - s 109 Motor Accidents Compensation Act 1999 - whether full and satisfactory explanation for delay Legislation Cited: Motor Accidents Compensation Act 1999 Road Transport (Drivers Licensing) Regulations 2008 Cases Cited: Blackburn v Allianz [2004] NSWCA 385 Diaz v Truong [2002] NSWCA 265 Ellis v Reko Pty Limited [2010] NSWCA 319 Figliuzzi v Yonan [2005] NSWCA 290 Holt v Wynter (2000) 49 NSWLR 128 Russo v Aiello [2003] HCA 53 Thornton v Sweeney [2011]NSWCA 244 Category: Interlocutory applications Parties: PETER FRANCIS DAVIS (Plaintiff) SAMUEL DAGG (First defendant) TRACEY DAGG (Second defendant) Representation: Mr S Dixon (Plaintiff) Mr P Cummings (First and second defendants) O'Brien & O'Brien (Plaintiff) Moray & Utiger (First and second defendants) File Number(s): 2012/67448 Publication restriction: No

Judgment 1By a Summons filed on 24 February 2012 the plaintiff, Peter Francis Davis, sought an order pursuant to s 109 of the Motor Accidents Compensation Act 1999 ("MACA"), that leave be granted to him to extend the time for commencing proceedings. 2In order to obtain that relief, the plaintiff sought concomitant orders that he had fulfilled his obligations (also under s 109 of the MACA) to provide a full and satisfactory explanation for his delay in making his claim and commencing proceedings, and that if he was successful in his action, his damages would be greater than 25% of the maximum amount awardable under s134 of the MACA. 3The first defendant filed a Notice of Motion on 23 March 2012 which sought orders that the proceedings commenced by the plaintiff be dismissed pursuant to s 73(5) of the MACA.