Bow v Carapella

[2020] NSWSC 171

Supreme Court

New South Wales

Medium Neutral Citation:	Bow v Carapella [2020] NSWSC 171
Hearing dates:	28 February 2020
Date of orders:	28 February 2020
Decision date:	28 February 2020
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	(1)   The proceedings be dismissed.  (2)   The plaintiff pay the defendant's cost of the proceedings.
Catchwords:	Motor accidents – pleading in negligence and “blameless accident” provisions – made 9 years after accident – no full and satisfactory explanation – whether required for blameless accident– whether claim must be lodged – whether failure of insurer to invoke s 73(4) affects operation of s 109
Legislation Cited:	Limitation Act 1969 Motor Accidents Compensation Act 1999
Cases Cited:	Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 Muller v Dalgety & Co Limited (1909) 9 CLR 693; [1909] HCA 67 Naw Eh Soe v Alberto Carapella; Saw Rain Bow v Alberto Carapella; Naw Su Su Bow v Alberto Carapella; Moe Moe Aye v Alberto Carapella [2014] NSWSC 1644 Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35; [1980] HCA 41 Woodlock v Commissioner of Land Tax (1974) 2 NSWLR 411
Category:	Procedural and other rulings
Parties:	Naw Su Su Bow (Plaintiff/Respondent) Alberto Carapella (Defendant/Applicant)
Representation:	Counsel: T McKenzie (Plaintiff/Respondent) D Hanna (Defendant/Applicant)   Solicitors: Taylor & Scott Lawyers (Plaintiff/Respondent) Moray & Agnew (Defendant/Applicant)
File Number(s):	2019/246665

EX TEMPORE Judgment

1. By notice of motion filed 19 September 2019 the defendant, Alberto Carapella, sought orders dismissing the proceedings pursuant to either or both of s 73(5) of the Motor Accidents Compensation Act 1999 (the “MAC Act”) or by reason of a failure to obtain leave under s 109(1) of the MAC Act.

2. In the circumstances that I will explain the issues on the motion reduced to a number of short questions of construction of the MAC Act. Before outlining those issues it is however necessary to set out the background to the notice of motion.

Background

3. On 8 August 2019 the plaintiff, Ms Naw Su Su Bow, filed a statement of claim in this Division seeking damages for psychiatric injury and nervous shock in relation to a motor accident that occurred on 30 May 2010 when her daughter was a pedestrian and was struck by a car driven by the defendant. The statement of claim pleads a cause of action in negligence. It also pleads, in the alternative, that the plaintiff had suffered injury as a result of a “blameless motor accident pursuant to s 7A of the [MAC] Act and claims damages pursuant to s 7B of the Act”. As I will explain this was the second statement of claim filed by the plaintiff in relation to her daughter’s accident.

4. On 7 November 2012, the plaintiff lodged a claim form under the MAC Act with the relevant insurer, that being 23 months outside the time period for the lodging of such a claim specified by s 73(1) of the MAC Act (see below). The claim was rejected five days later on the basis that no explanation for the delay was provided.

5. On 24 May 2013, the insurer noted that there had been no reply to its rejection letter, including any explanation for the relevant delay. On 17 June 2013, the plaintiff's claim was exempted from “CARS assessment”. On 16 July 2013, the plaintiff filed her first statement of claim in this Court (the “first proceedings”). That claim also sought damages for psychiatric injury and nervous shock in respect of the accident involving her daughter. It pleaded a claim in negligence against the defendant. It did not seek to invoke the blameless accident provisions of the MAC Act.

6. Within two months of the first proceeding being commenced, the defendant filed a notice of motion seeking the dismissal of the proceedings under s 73(5) of the MAC Act. The motion was heard by Hamill J on 7 November 2014, along with three other notices of motion relating to proceedings commenced by other members of the plaintiff’s family.

7. On 20 November 2014, his Honour dismissed all four sets of proceedings (Naw Eh Soe v Alberto Carapella; Saw Rain Bow v Alberto Carapella; Naw Su Su Bow v Alberto Carapella; Moe Moe Aye v Alberto Carapella [2014] NSWSC 1644). In particular, his Honour was not satisfied that any of the plaintiffs had provided a “full and satisfactory explanation” for their delay in making their “claim[s]” (at [30]). A notice of intention to appeal Hamill J’s decision was lodged, but no appeal was proceeded with.

8. On this application an affidavit sworn by the plaintiff was read. It outlined various medical and personal difficulties she encountered throughout that period and since then. In light of the concession, which I will outline, it is not necessary to address that in any detail.

9. On 9 April 2019, the plaintiff's solicitors served on the solicitors for the defendant and the defendant’s insurer a “CARS form 5A application for special assessment of procedural claims dispute”. One week later, CARS rejected that application.

10. On 26 April 2019, the defendant’s solicitors wrote to the plaintiff’s solicitors stating as follows:

“We note CARS has dismissed your client's application for adjudication of s 96 late claim dispute as it was bound to do.

We are not sure what prompted the application at this time, supported by a statutory declaration which is over 18 months old. In the event it is required, please be advised that the information supplied with your application is rejected as a full and satisfactory explanation of the delay in bringing a claim.

Are we able to advise our client the matter will not further pursued and then it can close the file?

If not what are the claimant's intentions with the matter?” (emphasis added)

11. The next relevant event was, as I have noted, on 8 August 2019 when a statement of claim was filed in this Court. As stated, it pleaded reliance on the blameless accident provisions in the MAC Act.

Legislative Provisions

12. In light of the matters raised in argument it is necessary to set out a number of relevant provisions of the MAC Act.

13. Section 3 includes the following definitions of “claim” and, “claimant”:

“claim means a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.

claimant means a person who makes or is entitled to make a claim.”

14. Further, s 5(1)(a) and (b) identifies the object of the MAC Act as including:

“5(1) The objects of this Act are as follows:

(a)   to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities,

(b)   to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims, …”

15. To that end s 6 provides:

“6 Interpretation and application of Act by reference to objects

(1)   In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects.

(2)   In the exercise of a discretion conferred by a provision of this Act or the regulations, the person exercising the discretion must do so in the way that would best promote the objects of this Act or of the provision concerned.”

16. Part 1.2 of the MAC Act is headed "No-fault claims—children and blameless accidents". Division 1 deals with recovery for blameless accidents. Sections 7A and 7B provide as follows:

“7A   Definition of “blameless motor accident”

In this Division:

blameless motor accident means a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person.

7B   Liability for damages in case of blameless motor accident

(1)   The death of or injury to a person that results from a blameless motor accident involving a motor vehicle that has motor accident insurance cover for the accident is, for the purposes of and in connection with any claim for damages in respect of the death or injury, deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle.

Note. Section 3B defines what is meant by a motor vehicle having motor accident insurance cover for a motor accident.

(2)   If the blameless motor accident involved more than one motor vehicle that has motor accident insurance cover for the accident, the death or injury is deemed to have been caused by the fault of the owner or driver of each of those motor vehicles in the use or operation of the vehicle.” (emphasis added)

17. Chapter 4 of the MAC Act is entitled “Motor Accident Claims”. Subsection 66(2) includes the following definition of what constitutes a “full and satisfactory explanation”:

“In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.”

18. Subsection 72(1) of the MAC Act provides that a “claim” must be made within six months after the “relevant date” for the claim. The “relevant date” is the date of the motor accident to which the claim relates unless the claim is made in respect of the death of a person in which case the relevant date is the date of the person’s death. Section 73 addresses the late making of claims. It provides:

“73  Late making of claims

(1)   A claim may be made more than 6 months after the relevant date for the claim under section 72 (in this section called a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer.

(2)   Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation.

(3)   If a late claim is made, the claim cannot be referred for assessment under Part 4.4 unless:

(a)   the insurer has lost the right to reject the claim on the ground of delay, or

(b)   a claims assessor has, on the assessment of a dispute as to whether a late claim may be made in accordance with this section, assessed that the claimant has a full and satisfactory explanation for the delay in making the claim, or

(c)   the claim is referred only for a certificate of exemption from assessment under Part 4.4.

(4)   The insurer loses the right to reject a late claim on the ground of delay if the insurer:

(a)   does not, within 2 months after receiving the claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay, or

(b)   does not, within 2 months after receiving an explanation for the delay, reject the explanation.

(5)   If court proceedings are commenced on a late claim, the insurer may apply to the court to have the proceedings dismissed on the ground of delay.

(6)   An application to have proceedings dismissed on the ground of delay cannot be made more than 2 months after the statement of claim is served on the defendant and received by the insurer and also cannot be made if the insurer has lost the right to reject the claim on the ground of delay.

(7)   On an application to have proceedings on a late claim dismissed on the ground of delay, the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim.

(8)   In this section, a reference to an insurer includes a reference to the person against whom the claim is made.

Note.  The combined effect of sections 72 and 73 is as follows:

A claim generally must be made within 6 months after the date of the accident or the date of death.

If, however, a claim is made more than 6 months after the date of the accident or death, a full and satisfactory explanation for the delay in making the claim must be provided.

Section 96 provides that a dispute about whether a late claim can be made may be referred to a claims assessor.”

19. Hamill J dismissed the first proceedings pursuant to s 73(7) of the MAC Act and, in particular, by reason of a failure of the plaintiff to provide his Honour with a full and satisfactory explanation of the delay in making the claim specifically the delay between the date of the accident and the lodging of a claim form in 2012.

20. Part 4.5 of the MAC Act addresses Court proceedings on claims. Section 109 specifies the relevant time limitation on the commencement of such proceedings. It provides as follows:

“109  Time limitations on commencement of court proceedings

(1)   A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:

(a)   the date of the motor accident to which the claim relates, or

(b)   if the claim is made in respect of the death of a person—the date of death,

except with the leave of the court in which the proceedings are to be taken.

(2)   Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued.

(3)   The leave of the court must not be granted unless:

(a)   the claimant provides a full and satisfactory explanation to the court for the delay, and

(b)   the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident.

(4)   Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant’s age or mental capacity.

(5)   The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim.”

The Defendant's Motion

21. The defendant’s motion seeks the dismissal of the proceedings by reference to two provisions of the MAC Act. I note that no question was raised on the motion by either party about whether the dismissal of the first proceedings raised any form of res judicata or “Anshun” estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35; [1980] HCA 41).

22. Instead, counsel for the defendant contended that the Court was obliged to dismiss the proceedings pursuant to s 73(7) of the MAC Act because there was not a full and satisfactory explanation for the delay in making a claim, specifically, the delay between the accident in 2010 and the attempt to lodge a further claim in 2019.

23. Further, it was submitted that the Court was effectively obliged to dismiss the proceedings because no leave had either been sought or could be obtained under s 109(1) of the MAC Act. It is clear that the proceedings had been commenced more than three years after the date of the motor accident to which a claim relates. It was submitted that the Court could not grant leave (s 109(1)) because there was no full and satisfactory explanation to the Court for the relevant delay (s 109(3)(a)).

24. At the hearing of the motion, counsel for the plaintiff did not seek to resist so much of the relief that was sought as concerns the pleadings in negligence against the defendant. Further, he conceded that the plaintiff had not provided either a “full and satisfactory explanation” for the delay in lodging any claim form nor for any delay in commencing these proceedings. Nevertheless, counsel’s primary argument was that the provisions of ss 73 and 109 do not apply to so much of his client’s case as involves reliance on the blameless accident provisions because, for the purposes of ss 73 and 109, there is no relevant “claim” and thus his client is not a relevant “claimant”.

25. The basis for this contention is that the definition of “claim” in s 3 of the MAC Act is confined to a claim for damages in respect of injury to a person caused by the fault of the owner or driver of a motor vehicle in the use and operation of the vehicle and that “claimant” is similarly constrained. Counsel contended that to the extent his client pleads reliance on the blameless accident provisions, they do not fall within that concept of a “claim”.

26. Further, counsel contended that the deeming provision in s 7B(1) of the MAC Act does not have the effect of extending the concept of “claim” and “claimant” so as to include any person who is or may be able to recover under the blameless accident provisions. Counsel’s written submissions refer to the various cases discussing the construction of deeming provisions, including Muller v Dalgety & Co Limited (1909) 9 CLR 693 at 696; [1909] HCA 67. Counsel contended that a deeming provision should be strictly construed and used only for the purpose which they are resorted to (citing Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 at 96 per Fisher J). Counsel contended that the deeming provision in s 7B is based on facts that have to be at least found or admitted to exist before the deeming provision has work to do, ie, the factual preconditions must exist or be admitted before it could be said that any relevant person can invoke s 7B (see Woodlock v Commissioner of Land Tax (1974) 2 NSWLR 411 at 414.) It follows, as I understand it from that argument, that at the point of making a “claim”, indeed up to the point of admission for judgment, the concept of claim could not extend to anyone who solely seeks to invoke the blameless accident provisions.

27. In considering those contentions it must be remembered exactly what the point being addressed is, namely, whether a person who seeks compensation arising out of a motor vehicle accident must comply with the provisions relating to the making of claims if the basis for their compensation is that they fall within the blameless accident provisions.

28. A consideration of the operation of deeming provisions is fundamentally a question of statutory construction. With the MAC Act that inevitably directs attention to ss 5 and 6 of the Act. If for some reason the blameless accident provisions stood outside the claims process, as well as the requirements of s 109, then that would wholly undermine the objectives in s 5(1) specifically the objective of encouraging the early resolution of compensation claims (s 5(1)(b)). If the plaintiff’s submission was upheld the result would be that a person could avoid lodging claims under the MAC Act with an insurer entirely and instead approach the Court first seeking compensation under Division 1 of Part 1.2 with the insurer never having the opportunity to consider a claim much less resolve it. It would also mean that the application of the limitation provisions set out in s 109 of the MAC Act would be undermined. Instead, such a proceeding would be governed by the limitation period in the Limitation Act 1969 (the “Limitation Act”), specifically Division 6 of Part 2.

29. In that regard, I would add that at the time of the commencement of these proceedings it had been some nine years since the plaintiff’s daughter’s accident such that, even on the application of the Limitation Act, the plaintiff was prima facie out of time. In this case, it was submitted that the time bar was suspended because the plaintiff was under a relevant disability, (Limitation Act, ss 50F and 52). It is not necessary to resolve that contention.

30. The proper construction of the MAC Act is that a person who seeks to make a claim for damages in respect of the death or injury to a person, which was said to have been caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle or which comes within the blameless accident provisions and specifically the deeming provision in s 7B, is making a “claim” for the purposes of the MAC Act and is accordingly a “claimant”.

21. As submitted by counsel for the defendant, at the time of lodging of a claim form it may not be necessary for such a person to specifically identify whether they are invoking the blameless accident provisions. The making of a claim, at least in the initial stages, does not necessarily require the basis for liability be specified. However, it would be contrary to the objectives of the MAC Act to allow persons to wholly avoid the claims lodgement and review process by simply approaching the courts seeking to invoke the blameless accident provisions without pursuing the claim lodgement process.

22. It follows that I am satisfied that in all respects the proceedings brought by the plaintiff are governed by s 109 of the MAC Act. I am also satisfied that, even to the extent they include the blameless accident provisions, they are still “proceedings on a late claim” within the meaning of s 73(7).

23. Accordingly, I reject the argument of counsel for the plaintiff to the contrary.

24. Counsel for the plaintiff also contended that, even if all of the causes of action pleaded by his client were amenable to orders under ss 73(7) or 109(1) of the MAC Act, nevertheless, the defendant was unable to bring this application for the dismissal of the proceedings. Counsel contended that the defendant lost the right to reject his client’s late “claim” pursuant to s 73(4) of the MAC Act, because it did not, within two months after receiving the claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay.

25. Counsel contended that the letter of 26 April 2019, set out above, did not amount to a rejection of the claim “on the ground of delay”. Counsel pointed to the statement which said, “[t]he information supplied with your application is rejected as a full and satisfactory explanation of the delay in bringing a claim”. It was submitted that did not constitute a rejection of the claim on the ground of delay or a request to provide a full and satisfactory explanation for the delay. While I accept that it is not the latter, I do not accept that the former contention. Although the wording is not perfect, considered in context it could not be construed as anything other than a statement that the application is rejected on the ground of delay and, in particular, the insurer was not satisfied that there was any relevant explanation for it.

26. I would add even if I upheld that contention it would have only meant that the defendant may not have been able to bring an application to dismiss the proceedings under s 73(7). Section 73(7) obliges the Court to dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation “for the delay in making the claim”. The relevant “delay in making the claim” being identified in s 73(7) is the delay in not lodging the relevant claim form within the six months provided for in s 72(1).

27. This, however, does not affect the operation of s 109 of the MAC Act. Section 109 of the MAC Act is directed to a different circumstance, namely, whether or not the claimant has commenced proceedings in respect of the claim more than three years after the date of the accident. It is quite conceivable that a person may lodge a claim form more than six months after the accident, but commence proceedings within the three years of the accident. In that circumstance s 109 would have no work to do, but s 73 might. In that circumstance an insurer might be precluded from seeking the dismissal of the proceedings on the basis that the claim form was lodged late if they did not satisfy s 73(4).

28. However, where proceedings are commenced more than three years after the date of the motor accident, to which the claim relates as in this case, then the fact, if it be the fact, then the insurer may be precluded from seeking the dismissal under s 73(7) does not preclude the insurer from seeking the dismissal of the proceedings on the basis that leave of the Court has not been granted under s 109(1) and cannot be granted because of s 109(3)(a). That is very much this case.

29. Accordingly, I reject counsel for the plaintiff's alternative argument.

Orders

40. It follows from this that the relevant orders will be made, namely:

(1)   The proceedings be dismissed.

(2)   The plaintiff pay the defendant’s cost of the proceedings.

**********

Decision last updated: 03 March 2020