Sanders v D&L Heavy Haulage Pty Ltd [2014] NSWSC 663

Supreme Court New South Wales

Medium Neutral Citation: Sanders v D&L Heavy Haulage Pty Ltd [2014] NSWSC 663 Hearing dates: 23 May 2014 Decision date: 23 May 2014 Jurisdiction: Common Law Before: Schmidt J Decision: Leave granted to plaintiff to commence proceedings against Mark O'Keefe and Mark A O'Keefe Pty Ltd in respect of his claim for damages for personal injuries arising from the motor vehicle accident in which he was involved on 30 May 2009. Costs are to be costs in the cause. Catchwords: PROCEDURE - notice of motion - orders sought under s 109(1) of the Motor Accidents Compensation Act 1999 (NSW) - leave granted - costs Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Category: Procedural and other rulings Parties: Jason Sanders (Plaintiff) D&L Heavy Haulage Pty Ltd (First Defendant) Darrell Sharman (Second Defendant) Gillespies Cranes Nominees Pty Ltd (Third Defendant) Traffic Technologies Limited (Fourth Defendant) Track Australia Pty Ltd (Fifth Defendant) Representation: Counsel: Solicitors: RMB Lawyers (Plaintiff) Hunt & Hunt (First and Second Defendants) Moray & Agnew (Third Defendant) HWL Ebsworth Lawyers (Fourth Defendant) Kennedys (Fifth Defendant) File Number(s): 2012/184390 Publication restriction: None

EX TEMPORE Judgment 1HER HONOUR: This is an application brought by notice of motion filed on 2 May 2014 for orders under s 109(1) of the Motor Accidents Compensation Act 1999 (NSW) for leave to commence proceedings against Mr Mark O'Keefe and Mark A O'Keefe Pty Ltd in respect of a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 30 May 2009. The motion is supported by two affidavits, one sworn on 17 April 2014 by Mr Sanders, the plaintiff, where he deposes that he has no recollection of the circumstances of the accident in which it appears he suffered serious head injuries. Further, he deposes that he has followed the advice and guidance of his solicitors in relation to relevant defendants against whom his claim should be pursued. 2The motion is also supported by an affidavit sworn by Mr Khan, Mr Sanders' solicitor, who in considerable detail outlines the circumstances in which the application has come to be made and annexes to his affidavit various documents, including a synopsis of damages detailing the possible compensation Mr Sanders could receive by way of verdict, supported by the reports of various medical practitioners. 3The matter comes before the Court today in circumstances where both the existing defendants and the proposed defendants consent to the orders sought, there being no issue between them that Section 109 of the Act and its requirements have been satisfied; including as to the explanation for the delay in bringing proceedings against the proposed defendants and that the damages Mr Sanders is likely to be awarded if his claim succeeds, being not less than 25 per cent of the maximum amount that may be awarded for non economic loss under Section 134 as at the date of the accident. 4Having heard the parties as to the application and the evidence which supports it and their agreement that the Court should exercise its discretion to make the orders sought, the requirements of s 109 having been complied with, I am satisfied that the common position of the parties on the evidence should be accepted and the Court's discretion exercised in the way proposed.