The Court declined to dismiss proceedings for non-compliance with Chapter 7 of the WIM Act, holding that the defendant's delay of over two years in agitating the non-compliance point after first raising it in its defence, combined with the potential for incurable prejudice to the plaintiff given the expired limitation period, weighed against dismissal. Instead, the Court stayed proceedings under s 67 of the Civil Procedure Act 2005 (NSW) to allow the plaintiff an opportunity to comply with WIM Act pre-litigation requirements, while preserving the defendant's right to reagitate dismissal if the plaintiff failed to comply within the allowed timeframe. The Court confirmed, consistently with Berowra Holdings and Wattyl, that non-compliance with WIM Act procedural requirements does not mandate dismissal but erects a procedural barrier subject to the Court's discretion, with the defendant's conduct being a central consideration.
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