Akhrass v Allianz Australia Insurance

[2002] NSWSC 352

CITATION:	Akhrass v Allianz Australia Insurance & Anor [2002] NSWSC 352
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 20614 of 2001
HEARING DATE(S):	24 April 2002
JUDGMENT DATE:	24 April 2002
PARTIES :	Edward Hanna Akhrass (Plaintiff) v Allianz Australia Insurance Limited (First Defendant) Watts Publishing Australia & New Zealand Pty Limited (Second Defendant)
JUDGMENT OF:	Master Malpass

COUNSEL :	N/A (Plaintiff) N/A (Defendant)
SOLICITORS:	In Person (Plaintiff) Dibbs Barker Gosling (First and Second Defendants)
CATCHWORDS:	Statutory prohibition on commencement of court proceedings - plaintiff not entitled to commence these proceedings.
LEGISLATION CITED:	Motor Accidents Compensation Act 1999, s 92, s 94, s 108. Supreme Court Rules 1970, Pt 15.
CASES CITED:	N/A
DECISION:	See paragraph 13.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

WEDNESDAY 24 APRIL 2002

20614 of 2001 Edward Hanna Akhrass v Allianz Australia Insurance Limited & Anor

JUDGMENT

1 Master Malpass: On 4 July 2001, the plaintiff filed a document entitled Statement of Claim. It purports to bring a claim for damages arising out of a motor vehicle accident that took place on 22 January 2001.

2 It is a lengthy document of many pages. It falls well short of complying with the pleading rules of this Court (Pt 15).

3 Initially, the plaintiff had legal representation. The solicitor ceased to act in about July 2001. The plaintiff is now a litigant in person.

4 The first defendant is the CTP (Compulsory Third Party Personal Injury) insurer of the vehicle said to have come into contact with the plaintiff as a pedestrian. The second defendant is the insured.

5 On 22 January 2002, the defendants filed a Notice of Motion seeking the dismissal of the proceedings. The plaintiff has responded by filing another Notice of Motion together with other documentation.

6 The matter came on for hearing on 24 April 2002. The plaintiff opposed a dismissal of the proceedings.

7 The plaintiff has prepared a written outline of submissions which he has placed before the court. This material has been supplemented by lengthy oral submissions. I have carefully considered all of this material.

8 There are a number of problems confronting the plaintiff. Unfortunately for him his submissions do not address them and in any event cannot overcome them. I shall mention some of the problems.

9 The plaintiff’s claim is governed by the Motor Accidents Compensation Act 1999 (the Act). Section 108 of that Act contains the following:-

“ (1) A claimant is not entitled to commence court proceedings against another person in respect of a claim unless:
(a) the Principal Claims Assessor has issued a certificate in respect of the claim under section 92 (Claims exempt from assessment), or
(b) a claims assessor has issued a certificate in respect of the claim under section 94 (Assessment of claims).
……………”

10 In this case, no certificate has been issued pursuant to either s 92 or s 94. Why this has not been done, is not to the point. The bringing of the proceedings in these circumstances is prohibited by the Act. The plaintiff is not entitled to commence court proceedings and therefore these proceedings are not presently maintainable by him. The court has no option in these circumstances but to dismiss them.

11 There are other problems, if the plaintiff had been entitled to bring any proceedings; the first defendant was not an appropriate party to be sued. As earlier mentioned, the pleading rules have not been complied with and the end result is an abuse of process.

12 It may be added that if it should come to pass that the plaintiff becomes entitled to commence court proceedings, the appropriate jurisdiction is either the District Court or the Local Court and not this Court.

13 I order that the proceedings be dismissed. The plaintiff is to pay the costs of the proceedings.

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Last Modified: 04/29/2002