Philp v Nominal Defendant [2017] NSWDC 223

District Court New South Wales

Medium Neutral Citation: Philp v Nominal Defendant [2017] NSWDC 223 Hearing dates: 28 July 2017 Date of orders: 25 August 2017 Decision date: 25 August 2017 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. Pursuant to s 109 of the Motor Accidents Compensation Act 1999, the plaintiff is granted leave to continue the present proceedings against the defendant;

2. The question of whether there has been due inquiry and search as required by s 34 of the Motor Accidents Compensation Act is stood over to be determined at the ultimate trial of the proceedings;

3. The defendant's notice of motion filed on 26 April 2017 is dismissed;

4. The defendant is to pay the plaintiff's costs of the dismissed motion on the ordinary basis unless otherwise ordered;

5. Liberty to apply on 7 days' notice if further or other orders are required. Catchwords: LIMITATION OF ACTIONS – plaintiff is entitled to a grant of leave to continue the present proceedings – whether the proceedings should be dismissed on account of defendant's claim of unsatisfactory explanation for delay; PRACTICE AND PROCEDURE – issue of due inquiry and search to be determined at the trial Legislation Cited: Motor Accidents Compensation Act 1999, s 34, s 66, s 72, s 73, s 109 Workers' Compensation Act 1987 Cases Cited: Figliuzzi v Yonan [2005] NSWCA 290 Nominal Defendant v Browne [2013] NSWCA 197 Smith v Grant [2006] NSWCA 244 Category: Principal judgment Parties: Gail Philp (Plaintiff) Nominal Defendant (Defendant) Representation: Counsel: Mr M Cleary (Plaintiff) Ms J Gumbert (Defendant)