Angus v Jones

District Court

New South Wales

Medium Neutral Citation:	Angus v Jones [2013] NSWDC 46
Hearing dates:	19/04/2013
Decision date:	24 April 2013
Jurisdiction:	Civil
Before:	Elkaim SC DCJ
Decision:	Proceedings dismissed with costs
Catchwords:	Compliance with motor accident legislation in an action brought pursuant to a right of subrogation.
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW) Safety, Rehabilitation and Compensation Act 1988 (Cth) Workers Compensation Act 1987 (NSW) Accident Compensation Act 1985 (Vic) Civil Law (Wrongs) Act 2002 (ACT)
Cases Cited:	Crispino v Burns [2007] ACTCA 7 Emad Trolley Pty Ltd v Shigar (2003) 57 NSWLR 636 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Honey v Gosling (unreported) 28 September 2006 NSWDC Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207
Category:	Interlocutory applications
Parties:	Kenneth Angus (Plaintiff) Jade Michelle Jones (Defendant)
Representation:	T McKenzie (Plaintiff) J Guihot (Defendant) Graham Jones Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2012/00325297
Publication restriction:	No

Judgment

1. By a Notice of Motion filed on 18 December 2012 the defendant seeks the dismissal of the proceedings as a result of breaches of the Motor Accidents Compensation Act 1999 (the "MACA"), particularly relying on Sections 72, 74 and 108. The latter is the most relevant.

1. Section 108 states:

"108 Claims assessment or exemption pre-condition for commencement of court proceedings

(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).

(2) The provisions of this section are in addition to those of section 109. Accordingly, both sections are capable of applying to a claim."

1. There is no dispute here that the requirements of Section 108(1)(a) or (b) have not been met. In respect of Sections 72 and 74 there is also no dispute that the necessary notices and forms are absent.

1. The Statement of Claim was filed on 19 October 2012. Under the heading "Relief Claimed", the following paragraph appears:

"1. Pursuant to Section 51 of the Safety, Rehabilitation and Compensation Act 1988 this action is brought by the Australian Postal Corporation in the name of Kenneth Angus who is an employee of the Australian Postal Corporation."

1. The Statement of Claim then seeks damages.

1. In the particulars of the claim the facts are set out of a motor vehicle accident on 21 December 2009 in which Mr Angus is allegedly injured as a result of the negligent driving of the defendant. The accident occurred in New South Wales. For present purposes the allegations in the Statement of Claim are taken as being accepted.

1. The defendant says that the plaintiff's claim is one for damages under the MACA and accordingly the various procedural provisions of this Act must be complied with. Thus under Section 108 the conditions…