Almin Bajramovic v Briccio Calubaquib [2015] NSWDC 293

District Court New South Wales

Medium Neutral Citation: Almin Bajramovic v Briccio Calubaquib [2015] NSWDC 293 Hearing dates: 12 November 2015 Decision date: 10 December 2015 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Leave granted to file Statement of Claim out of time. For orders see [54] Catchwords: Application to extend time for filing Statement of Claim; full and satisfactory explanation for the delay Legislation Cited: Motor Accidents Compensation Act 1999 Cases Cited: Figliuzzi v Yonan [2005] NSWCA 290 Khoury v Linfox Australia Pty Limited [2006] NSWCA 51 Mancini v Thompson [2002] NSWCA 38 Smith v Grant [2006] NSWCA 244 Walker v Howard (2009) 78 NSWLR 161 Category: Procedural and other rulings Parties: Almin Bajramovic (Plaintiff) Briccio Calubaquib (Defendant) Representation: Counsel: L Welsh (Plaintiff) J Turnbull SC (Defendant)

Solicitors: L J Sharpe & Co (Plaintiff) T L Lawyers File Number(s): 13/16816 Publication restriction: Nil

Judgment

The plaintiff's claim 1. The plaintiff claims by Summons, filed on 18 January 2013, an order for leave pursuant to s 109 of the Motor Accidents Compensation Act 1999 ("MACA") to commence proceedings in respect of a motor vehicle accident on 20 November 2007, in which he suffered personal injuries. 2. The plaintiff relied on the following affidavit evidence: Almin Bajramovic – two affidavits sworn 29 November 2012 and 2 May 2013 Dobrinka Zlatevska – three affidavits sworn on 30 April 2012, 24 May 2012 and 27 November 2012 Robert Stanoevski – sworn 15 May 2013 Mark Thompson – sworn 14 December 2012 Stephen Sharpe – sworn 3 May 2013 1. The defendant did not adduce any evidence. 2. Section 109 of the MACA provides as follows: "109 Time limitations on commencement of court proceedings (1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after: (a) the date of the motor accident to which the claim relates, or (b) if the claim is made in respect of the death of a person – the date of death, except with the leave of the court in which the proceedings are to be taken. (2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued. (3) The leave of the court must not be granted unless: (a) the claimant provides a full and satisfactory explanation to the court for the delay, and (b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident." 1. The respondent has conceded that the court will be satisfied of the matter contained in s 109 (3)(b). 2. In accordance with the legal principles set out below, the relief sought is discretionary, subject to the court being satisfied that a full and satisfactory explanation has been provided to the court for the delay, pursuant to s 109(3)(a).