Akhrass v Allianz Australia Insurance Ltd

[2002] NSWSC 772

CITATION:	Akhrass v Allianz Australia Insurance Ltd & anor [2002] NSWSC 772
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 20614/01
HEARING DATE(S):	Monday, 26 August 2002
JUDGMENT DATE:	26 August 2002
PARTIES :	Edward Hanna Akhrass (Plaintiff) Allianz Australia Insurance Limited (First Defendant) Watts Publishing Australia & New Zealand Pty Limited (Second Defendant)
JUDGMENT OF:	Dunford J

COUNSEL :	N/A (Plaintiff) N/A (Defendants)
SOLICITORS:	In Person (Plaintiff) Dibbs Barker Gosling (First & Second Defendants)
CATCHWORDS:	PRACTICE & PROCEDURE - motor accident - failure to obtain exemption certificate or assessment certificate before commencing proceedings - failure to co-operate with other party - commencing of proceedings prohibited.
LEGISLATION CITED:	Supreme Court Rules 1970, Pt 15 Motor Accidents Compensation Act 1999, ss 85, 92, 94, 108 District Court Act 1973, ss 44(1)(d), 143
CASES CITED:	Hill v Bolt (1992) 28 NSWLR 329
DECISION:	Appeal from the decision of Master Malpass dismissed with costs. Orders of Master Malpass confirmed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DUNFORD J

Monday, 26 AUGUST 2002

20614/01 - Edward Hanna Akhrass v Allianz Australia Insurance Ltd & anor

JUDGMENT

1 His Honour: This is an appeal by the plaintiff against the decision of Master Malpass of 24 April 2002 ordering that the proceedings commenced by him be dismissed. The proceedings were commenced by statement of claim filed on 4 July 2001 and claimed damages for personal injuries allegedly suffered by him when struck by a motor vehicle on 22 January 2001 in Summer Hill.

2 The statement of claim and the institution of the proceedings had a number of defects. The motor vehicle which allegedly struck the plaintiff was owned by the second defendant and insured by the first defendant. The second defendant was a proper party to the proceedings, but the first defendant was not. Moreover, the statement of claim (which was drafted apparently without any professional assistance) is a long, rambling document which does not comply with the requirements for pleadings set out in Part 15 of the Supreme Court Rules.

3 Furthermore, at the time of the filing of the statement of claim the plaintiff was not entitled to commence the proceedings, because of the provisions of s 108 of the Motor Accidents Compensation Act 1999 which provides that a claimant is not entitled to commence court proceedings in respect of a claim subject to the Act, unless the Principal Claims Assessor has issued an exemption certificate pursuant to s 92 or has issued an assessment certificate pursuant to s 94.

4 At the time of the commencement of the proceedings, and at the time that Master Malpass delivered his judgment, neither certificate had been issued. Since then an exemption certificate has been issued by the Principal Claims Assessor on 1 May 2002, but that does not alter the situation that at the time the plaintiff commenced these proceedings he was not entitled to do so.

5 Moreover, the insurance company, the first defendant, had requested further and better particulars of the claim on 8 June 2001 and, as far as I can ascertain, those particulars have not yet been supplied, although certain information has been given. Section 85 requires the claimant to co-operate with the other party, and whilst there is a failure to comply with the section without reasonable excuse, court proceedings cannot be commenced: s 85(4), Hill v Bolt (1992) 28 NSWLR 329.

6 I am therefore satisfied that Master Malpass was correct in holding that at the time the plaintiff commenced these proceedings he was not entitled to do so, as the proceedings were not maintainable by him.

7 Subject to supplying the further particulars required by the letter of 8 June 2001, the plaintiff would now be entitled to commence fresh proceedings, but he cannot revive the proceedings which were improperly commenced at a time he was not entitled to do so, and which were dismissed pursuant to the order of Master Malpass.

8 The plaintiff has indicated that if he cannot have the earlier proceedings in this Court revived in some way he wishes to start fresh proceedings in this Court. Subject, as I say, to complying with the request for further particulars (s 85), the fresh proceedings may be commenced in this Court or in the District Court, but if commenced in this Court, they are likely to be remitted to the District Court because that court has unlimited jurisdiction in claims in respect of motor accidents: District Court Act 1973, ss 44(1)(d), 143.

9 The plaintiff also, in his documentation, indicates that as an alternative to the proceedings being heard in this Court he wishes them heard in the High Court because he wishes to also appeal against a decision in some earlier proceedings. Such appeal would require special leave from the High Court but in any event would be quite separate from these proceedings.

10 I therefore order that the appeal from Master Malpass be dismissed with costs and I confirm the orders of Master Malpass.

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Last Modified: 09/02/2002