Ellis vs. Reko Pty Ltd

This case was an appeal in the NSW Court of Appeal from a decision in the District Court of NSW by his Honour Judge Knox.

The lower Court decision was 4 November 2009 and Judgment was given on 10 November 2010.

The case involved an analysis of Section 109(3) of the Motor Accidents Compensation Act 1999 and whether or not a full and satisfactory explanation for a delay in commencing proceedings had been given.

The decision was essentially a factual Judgment and their Honours came to their decision following a perusal of an affidavit relating to the reasons given for the delay in commencing proceedings.

Basically, the Court found that the details in the explanation were not sufficient. The case is good authority to remind Plaintiff’s solicitors of the importance of obtaining affidavit material from a Plaintiff, which must be detailed and covers all periods from the date of the accident up until the date of the application.

Her Honour Judge Beazley summarised full and satisfactory explanation by noting that the Plaintiff is required to provide a full account of the conduct including the actions, knowledge and belief of the Claimant from the date of the accident to the date he provided his explanation. Her Honour noted that the explanation will not be regarded as satisfactory unless a reasonable person who was placed in the shoes of the Claimant would have failed to comply with the obligation and would have been justified in having a similar delay.

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