Brierley v Ellis

[2014] NSWCA 230

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Brierley v Ellis [2014] NSWCA 230

Hearing dates:

25 February 2014

Decision date:

17 July 2014

Before:

Basten JA at [1];
Meagher JA at [2];
Gleeson JA at [60]

Decision:

(1) Grant leave to appeal.

(2) Appeal allowed.

(3) Set aside orders of the District Court made on 22 March 2013.

(4) In place thereof,

(a) dismiss the defendant's motion of 27 September 2012 seeking to dismiss the proceedings pursuant to s 73(7) of the Motor Accidents Compensation Act 1999 (NSW);

   (b) order the defendant to pay the plaintiff's costs of the defendant's motion.

(5) Order the respondent to pay the applicant/appellant's costs of the application for leave to appeal and appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

MOTOR ACCIDENT COMPENSATION - whether primary judge erred in not being satisfied that plaintiff/appellant had provided a "full and satisfactory explanation" within s 66(2) of Motor Accidents Compensation Act 1999 (NSW) for delay in making a motor accident claim - explanation for delay given by hearsay evidence which was not objected to - principles relevant to admissibility of and weight to be given to that evidence

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW), ss 3, 33, 72, 73

Cases Cited:

Buller v Black [2003] NSWCA 45; 56 NSWLR 425
Clyne v Law Society of New South Wales (Court of Appeal (NSW), 4 September 1987, unrep)
Diaz v Truong [2002] NSWCA 265; 37 MVR 158
Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1979] HCA 2; 143 CLR 134
Lyu v Jeon [2012] NSWCA 446
Metropolitan Railway Co v Jackson (1877) 3 App Cas 193
Russo v Aiello [2003] HCA 53; 215 CLR 643
Walker v Howard [2009] NSWCA 408; 78 NSWLR 161

Category:

Principal judgment

Parties:

Patrick Brierley (Applicant/Appellant)
Isaac Ellis (Respondent)

Representation:

Counsel:
B Dooley SC (Applicant/Appellant)
K P Rewell SC (Respondent)
Solicitors:
Carroll & O'Dea (Applicant/Appellant)
Hunt & Hunt (Respondent)

File Number(s):

2013/119818

 Decision under appeal 

Jurisdiction:

9101

Citation:

Brierley v Ellis (District Court of New South Wales, Gibb DCJ, 22 March 2013, unrep)

Date of Decision:

2013-03-22 00:00:00

Before:

Gibb DCJ

File Number(s):

2012/129042

Judgment

1. BASTEN JA: I agree with the orders proposed by Meagher JA and with his reasons.

1. MEAGHER JA: This is a concurrent hearing of an application for leave to appeal and the appeal. The primary judge (S J Gibb DCJ) dismissed the applicant's proceeding for damages suffered in a motor accident because he had not given notice of that claim within the six months required by s 72(1) of the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act) and the Court was not satisfied that he had a "full and satisfactory explanation for the delay" in giving notice of that claim.

The making of the late claim

1. The applicant suffered injuries in a motorcycle accident, which occurred on 19 July 2009 whilst he was participating in a motorcycle club "ride day" at the Marulan Driver Training Centre (the Training Centre), described in the evidence as a closed road circuit. On 10 December 2010 the applicant gave notice of a claim against the respondent to the respondent's third party insurer, NRMA Insurance Australia Ltd (NRMA). That notice was dated 6 December 2010 and contained the following description of the accident:

"Mr Brierley was acting as a volunteer marshal at the Marulen [sic] Driver Training Centre. He was riding his motorcycle around the track when another marshal, Isaac Ellis, cut him off and stopped in front of him. They collided and Mr Brierley was thrown off his motorcycle at around 150km/hr. We consider the other marshal, Isaac Ellis, to have caused the accident." (White 185)

1. On 19 April 2012, the applicant commenced proceedings against the Nominal Defendant in the District Court. The statement of claim alleged that at the time of the accident the respondent was driving a motorcycle, which was not insured (White 386). On 12 June 2012, the solicitors acting for the Nominal Defendant advised that the motorcycle, which the respondent was driving at the time of the accident, had a registration No TZB-41. On 20 June 2012, the applicant filed an amended statement of claim naming the respondent as defendant and alleging that he was the owner and rider of that registered motorcycle (White 394).

1. The claim against the respondent was made more than six months after the motor accident and accordingly was a "late claim" within s 73(1) of the MAC Act. On 27 September 2012 the respondent applied, pursuant to s 73(5), to have the proceedings dismissed on the ground of delay. There had been an issue as to when the amended statement of claim was served on the respondent. It was not, however, contended that this application was filed outside the two-month period permitted by s 73(6).

1. Section 73(7) provides:

"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."

1. The reference to a "full and satisfactory explanation" is, by s 66(2), 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". That explanation is not a "satisfactory [one] unless a reasonable person in the position of the claimant ... would have been justified in experiencing the same delay". In other words, the explanation will be satisfactory if the reasonable person in the applicant's position would have experienced that delay and his or her doing so would have been justified in the circumstances: see Diaz v Truong [2002] NSWCA 265; 37 MVR 158 at [42]; Russo v Aiello [2003] HCA 53; 215 CLR 643 at [7], [73]; Buller v Black [2003] NSWCA 45; 56 NSWLR 425 at [46], [94], [100]; Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 at [96]-[97], [101]-[102]; and Lyu v Jeon [2012] NSWCA 446 at [21]-[23].

The decision of the primary judge

1. The primary judge upheld the respondent's application to dismiss the late claim: Brierley v Ellis (District Court of New South Wales, Gibbs DCJ, 22 March 2013, unreported). The period in respect of which the applicant was required to give a full and satisfactory explanation was from July 2009, when the accident happened, to February 2011 when an explanation was first proffered. The particular period to be addressed was that from July 2009 to December 2010 when notice of the claim was given. Her Honour held that the applicant's account of his conduct in the period from July 2009 to 7 June 2010, when he first sought legal advice from Carroll & O'Dea, was full and satisfactorily explained his delay in not making a claim for injury before that time (White 90R-91P). Her Honour also held that the explanation provided for any delay in the short period from 2 December, when the applicant received a motor accident claim form, until that completed form was received by NRMA after 10 December 2010 (White 103D-J) was full and satisfactorily explained any delay during that period.

1. In relation to the intervening period of nearly six months from 7 June to 2 December 2010, her Honour held that the evidence relied upon by the applicant was "contradictory" and did not contain any or any adequate explanation for his conduct, including inaction. Specific findings as to unexplained or unsatisfactory delay were made in relation to overlapping periods - 7 to 30 June (White 97D), 7 June to 6 October (White 99T), 1 July to 4 August (White 98R-S), 15 July to 16 October (White 95M) and 6 October to 9 November (White 99U).

1. The primary judge did not accept the applicant's statement that he did not become aware that he could make a third party claim against the respondent until a conference on 9 November 2010 because it appeared to be "inconsistent with his solicitor's evidence and records" (White 105N-P). In the face of that finding and the other findings as to inadequate explanations, her Honour was not satisfied that the applicant had given either a full or satisfactory explanation (White 105L-M). She concluded (White 106C-F):

"The [applicant] chose not to clarify apparent contradictions arising from his contradictory statutory declarations and the later solicitors' affidavits disclosing their contemporaneous appreciation of the rights under the Motor Accidents Compensation Act 1999 (NSW). That is his right. It is not appropriate for me to speculate as to his beliefs, understandings or misapprehensions, or about that which he was or was not told. But the silence make [sic] it impossible to be satisfied that the [applicant's] conduct (or inaction) is justified by reference to the way in which a reasonable person in his position of a claimant could have been expected to behave."

Her Honour dismissed the proceedings pursuant to s 73(7). The applicant seeks leave to appeal from that order.

The grounds of appeal

1. The draft notice of appeal and applicant's written and oral submissions argue that the primary judge erred in four respects. First, it is said that the primary judge erred in relation to her findings as to the advice that the applicant received on 7 June 2010 and as to his knowledge concerning his "rights" under the MAC Act from that time. It is also said that her Honour erred in relation to her findings that thereafter there were periods during which his conduct or inaction was not satisfactorily explained and in concluding that the applicant's explanation was neither full nor satisfactory (grounds 2, 8, 9 and 10). Secondly, it is said that the primary judge made improper use of the fact that the applicant did not tender direct, as distinct from hearsay, evidence of his explanation for the delay (grounds 4, 5, 6 and 7).

1. Thirdly, it is submitted that the applicant was denied procedural fairness in the way the application was conducted because the arguments put on behalf of the respondent did not include that there were specific periods between June and December 2010 where her Honour might not be satisfied as to his explanation for the delay (ground 3). Finally, it is said that when assessing the applicant's explanation for delay and whether it was satisfactory, the primary judge did not take into account that the applicant could reasonably rely upon the conduct and advice of his solicitors as providing a satisfactory explanation, notwithstanding that this advice may have been negligent or less than adequate by reference to the standards of a solicitor of ordinary diligence and competence (grounds 11 and 12).

1. The draft notice of appeal seeks orders that the primary judge's orders made on 22 March 2013 be set aside, but does not indicate whether, in that event, this Court should determine the respondent's application to dismiss the proceedings or remit it to the District Court for further determination. That question was raised with the parties during oral argument. The applicant submitted that if this Court found error on the part of the primary judge it should determine the application itself. The respondent did not seriously oppose that course, in circumstances where the primary judge had dealt with the application on the basis of the affidavits and exhibits only.

1. For the reasons which follow, it is my view that the primary judge erred in dismissing the applicant's proceedings upon the basis that her Honour was not satisfied that he had a full and satisfactory explanation for his delay in making the claim. I am satisfied that on the evidence the applicant had such an explanation. My reasons for those conclusions are set out below.

Disposition of the appeal

1. It is convenient to deal first with the applicant's challenge to the primary judge's findings of fact and ultimate conclusion; and, in that context, with the argument that the primary judge made improper use of the fact that the applicant did not tender direct evidence of his explanation. The remaining grounds of appeal fall away if these principal grounds are determined in favour of the applicant.

The course of evidence before the primary judge

1. A matter to which the primary judge attached some significance was that the applicant did not give direct evidence and was not cross-examined. His evidence was led by the tendering of three statutory declarations, as annexures to two affidavits sworn by his solicitors. The primary judge considered that there were inconsistencies between what was said in those declarations and concluded that the applicant's explanations for his delay were inadequate.

1. On receipt of the applicant's late claim, NRMA asked that he provide a full and satisfactory explanation for the delay (White 197). It did so, in order not to lose the right to reject the claim on the ground of delay: s 72(4)(a). In the period between January and December 2011 the applicant's solicitors, Carroll & O'Dea, provided to NRMA three statutory declarations of the applicant. Those declarations were made on 23 February 2011 (White 372), 10 May 2011 (White 375) and 2 November 2011 (White 377). The first was provided in response to NRMA's initial request for an explanation for the delay. The second and third were provided in response to further correspondence from NRMA which rejected the earlier explanation or explanations as not being sufficiently full or satisfactory. Each of the second and third declarations referred to the earlier declaration or declarations, and stated that it was providing "additional" or "further" information to that already supplied.

1. The applicant's evidence before the primary judge consisted of six affidavits - two of Mr Govan, the solicitor employed in Carroll & O'Dea's Wollongong office who had day-to-day carriage of the applicant's matter from 9 June 2010 to 15 August 2011; and four of Ms Wright, the solicitor in that office who had carriage of the matter after 15 August 2011. Those affidavits attached copies of written communications between those solicitors and the applicant, NRMA, its solicitors (Hunt & Hunt) and third parties. Copies of the three declarations were attached to affidavits of Mr Govan and Ms Wright. Mr Govan's affidavit also described discussions which he had in conference with the applicant on 7 June and 6 October 2010. He also referred to the events leading to the conference with a barrister on 9 November 2010, which was attended by Ms Geenty of Carroll & O'Dea and the applicant.

1. The respondent's evidence consisted of two affidavits of Ms Fiodoroff, a solicitor employed by Hunt & Hunt. Those affidavits attached communications between the parties commencing with the receipt by NRMA of the claim form in December 2010. The attached communications also included copies of the three statutory declarations.

1. At the commencement of the hearing before the primary judge each of those affidavits was read and its annexures tendered without objection (White 21-26). Counsel for the respondent then indicated that he wished to cross-examine the applicant (White 26N). It was pointed out that the applicant had not sworn an affidavit (White 27J). Counsel for the respondent then stated that he had not objected to the tender of the three declarations upon the understanding that the applicant would be available for cross-examination (White 27S). Accepting that correctly to record the position, the primary judge said that she proposed to reject the declarations as evidence of the facts asserted in them (White 28E, 29F, 30B). In the face of that foreshadowed ruling, counsel for the applicant said that he would make the applicant available for cross-examination (White 30D).

1. As events turned out, that did not occur. There was a short adjournment. After that adjournment the primary judge indicated that she would commence afresh the task of taking the evidence and in that process deal with any objections then made (White 31H). Each party read the same affidavits and all annexures were tendered (White 31G-P, 34V-35T). Significantly, having regard to what had occurred earlier, counsel for the respondent did not object to the tender of the declarations as evidence of the truth of their contents. Indeed, he tendered copies of those declarations in his case as attachments to one of Ms Fiodoroff's affidavits. Nor did he seek to cross-examine the applicant or Mr Govan. In the result, it was not necessary for counsel for the applicant to call him to affirm the truth of the contents of the three declarations and he was not cross-examined about them. Nor was Mr Govan challenged as to his evidence of what had occurred on 7 June and 6 October 2010.

Principles relevant to admissibility of, and weight to be given to, statutory declarations

1. Notwithstanding that the statutory declarations were hearsay evidence of what the applicant did and thought, they were tendered to prove the existence of the facts they stated. They were not objected to and were admitted without limitation. Having regard to the exchanges which preceded their admission, it was plain that the declarations were relied upon as evidence of the facts they stated and that, in the absence of objection, the applicant's counsel had refrained from adducing direct evidence from the applicant to prove those facts. In the circumstances, the declarations were able to be used and relied upon "to prove the facts stated" in them: per Gibbs J in Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1979] HCA 2; 143 CLR 134 at 153. To the extent that the primary judge's reasons are to be understood as saying otherwise (White 79R, 80G), or that it might have been "unfair" to the respondent to have regard to them as evidence (White 81N), they would not correctly record the evidentiary status of the declarations. However, notwithstanding that these observations were made, the primary judge did proceed on the basis that the declarations were evidence to which she must have regard.

1. The question which then arose concerned the weight which that evidence should be given. That also is a question of fact: see Metropolitan Railway Co v Jackson (1877) 3 App Cas 193. Whereas the question whether evidence is capable of justifying a particular conclusion is a question of law, if there is such evidence it is for the trier of fact "to decide as to its weight and value": per Lord O'Hagan at 202.

1. The fact that evidence is unable to be tested by cross-examination may provide a reason to discount the weight that should be given to it. As Mahoney JA observed in Clyne v Law Society of New South Wales (Court of Appeal (NSW), 4 September 1987, unrep):

"The fact that a witness has not been cross-examined has conventionally been seen, and properly seen, as a reason why the witness' evidence should be taken with reserve. In Braithwaite v Kerns 34 Beav 202, Romilly MR, in giving leave for the use of an affidavit by a person who, by reason of paralysis, was unable and incapable to attend and be cross-examined, said: 'I must allow it to be read, and must judge of it. But I pay little attention to the affidavit of a person who has not, when required, submitted to a cross-examination.'

Each case must, of course, be weighed on its merits and in its context. But experience has shown that it is proper to treat with considerable reserve evidence, or the inferences from evidence, which has not been subjected to cross-examination."

1. How were these principles to be applied in this case? When the evidence was tendered the respondent did not object to its being admitted to prove the existence of the facts stated. If the respondent had wanted to cross-examine the applicant he could have done so, either by objecting to its tender as hearsay, so as to require the evidence to be led in admissible form, or by consenting to its tender, but only on condition that the applicant was made available for cross-examination. The respondent took neither course. At the same time, considering what had earlier occurred, the applicant's counsel could have put the matter beyond doubt by calling him to give the evidence orally or at least to swear as to or affirm the truth of the contents of the declarations. In either case the applicant would then have been available for cross-examination.

1. However, in view of what happened the applicant's counsel was not required to take that course. There remained the risk that the evidence may not establish that the applicant had a sufficiently full and satisfactory explanation. But that risk was not one concerned with the admissibility or weight that the evidence should be given. It arose because of the nature of the question to which the evidence was directed and by reason of the fact that the applicant would ordinarily be the one best able to give evidence about it. In that circumstance any matter which called for explanation or further elaboration was likely to be determined on the basis that the applicant did not have further information which might assist his case: per Gleeson CJ in Russo v Aiello at [10], [11].

1. The applicant was entitled to rely upon the declarations as evidence of the facts stated and the respondent could not submit that, because the applicant had not been cross-examined or made available for cross-examination, little weight should be given to that evidence. Had the respondent sought to challenge the evidence by cross-examination, he should have taken one or other of the steps referred to above.

1. To the extent that there was evidentiary material which was not challenged by cross-examination and not contradicted by other relevant evidence, the primary judge was required to take it into account and act upon it unless there were good reasons for not doing so. Neither the fact that the evidence was hearsay nor that it was not the subject of cross-examination permitted the primary judge to do other than address it on its terms as reasonably understood and in the context of the other documentary evidence and the evidence of the applicant's solicitors. As will become apparent, her Honour construed the declarations in a way which tended to exaggerate and highlight asserted inconsistencies between them and without taking sufficient account of the fact that the later declarations were expressed to be made to supplement or expand upon earlier statements.

The reasoning and findings of the primary judge

1. It was not controversial that the applicant first sought legal advice in relation to his accident on 7 June 2010. At that time he saw Mr Govan. Nor was it controversial that he had a further meeting with Mr Govan on 6 October 2010 and later attended a conference with counsel and Ms Geenty on 9 November 2010. Following that conference steps were taken to complete and serve on NRMA the motor accident claim form.

1. The primary judge held that the applicant's three declarations contained conflicting and inconsistent statements as to when he first learned of "his rights" under the MAC Act. The primary judge dealt with that question over a number of pages of her reasons and made several separate but overlapping findings as to the fact of inconsistency: see White 91R-Y, 93Q-T, 94D, 96M-N, 97U, 99R.

1. The primary judge did not make a specific finding as to the "rights" of which the applicant was advised in the conference of 7 June 2010. However, her Honour's conclusions as to inconsistency depend upon an implicit finding that the applicant was advised in that first conference that he had a claim, or at least a basis for making a claim, against the respondent for negligence as the owner or rider of the motorcycle which caused his accident, and that he had to give notice of that claim to the respondent, or his insurer, within six months of the accident and then commence any court proceedings within three years of the accident.

1. That this was the basis upon which her Honour proceeded emerges, in a somewhat unsatisfactory way, from the following findings or observations as to what the applicant had been told on 7 June 2010: White 93R ("at least one topic under discussion with the solicitor was rights" under the MAC Act), White 94D-E ("on 7 June 2010 the plaintiff learned of his rights under [the MAC Act] and limitations periods"), White 96M-N ("learned about his right under [the MAC Act] on 7 June 2010"), White 97U ("that he had been told about a motor vehicle claim"), White 98U ("he learned on 7 June 2010 that there was a clear case of negligence against the other motorcycle rider, although the precise right was unsure"), White 99Q-R ("he had by then been told that there were time limits"), White 99V (that the applicant did not know about rights under the MAC Act until 9 November 2010 was inconsistent with the "contemporaneous actions"), White 101E (first time that rights under MAC Act had been examined was [not] November 2010) and White 104E (on 6 December 2010, two months after making the decision to pursue a claim under the MAC Act and six months after learning about his rights the applicant finally completed a claim form).

1. In the face of those inconsistencies, the primary judge did not accept the following statement of the applicant which was made in his third declaration:

"11. I was not advised until a conference with my solicitor and barrister on 9 November 2010 that I could potentially make a CTP claim in relation to my accident. Prior to this date, I was not aware that I had rights to claim under the CTP scheme. I was also not previously aware of any time limitations in making a CTP claim. My solicitors indicated that they would arrange the necessary paperwork to lodge a CTP claim."

1. That explanation was rejected as "inconsistent with the knowledge asserted in the first statutory declaration, the actions narrated in the second statutory declaration" and the commissioning of medico-legal opinions before the conference with counsel on 9 November 2010 (White 103L-N). The statement as to the applicant's knowledge in his first statutory declaration was as follows:

10. On 7 June 2010 I contacted Carroll & O'Dea Lawyers and came in for an appointment to discuss my accident. It was only then that I was told that I may have a claim. This was the first time I heard about any of the legal requirements or limitation periods in making a claim."

1. Other reasons which the primary judge gave for not accepting the applicant's evidence in paragraph 11 of the third declaration were that the solicitors' actions which followed the first conference were consistent only with such advice having been given (White 94K, 95T, 96L), and that the solicitors were considering an action under the MAC Act after that conference (White 96P, 97P). Her Honour also found that the applicant's statement in paragraph 11 as to his lack of awareness was also "inconsistent" with his solicitor's evidence and records (White 105N, 105P). That is presumably a reference to Mr Govan's evidence, although the primary judge does not identify the particular evidence or records which were said to be inconsistent.

1. The primary judge also made findings as to the applicant's action or lack of action after his having received that advice as to his rights under the MAC Act. Those findings were that the applicant received a letter from Mr Govan on 15 July 2010 but did "nothing" thereafter until 6 October 2010 (White 95M); that the applicant did nothing between 7 June 2010 and 30 June 2010 when he spoke with the respondent (White 97D); that there was "very little explanation" for the applicant's "inertia" between 1 July and 6 October 2010 (White 97W); that the applicant did "nothing" between 1 July and 4 August 2010 (White 98R); that the applicant learned on 7 June 2010 that there was a "clear case of negligence" against the respondent but "did nothing about this" (White 98U); that the applicant gave no explanation for why "nothing had been done between 7 June and 6 October 2010" (White 99T) and that on 6 October 2010 the applicant instructed his solicitor to pursue his rights under the MAC Act and that there was no explanation for what happened or did not happen between that date and 9 November 2010 (White 101G-K).

Errors in findings as to advice received and as to reasons for subsequent action or lack of action

1. In my view the primary judge erred in finding that the applicant received advice on 7 June 2010 to the effect that he had a claim for damages against Mr Ellis for negligence as owner or rider of the other motorcycle, that that claim was subject to the provisions of the MAC Act and that notice of such a claim had to be given within six months from the time of the accident or as soon as possible thereafter. That finding was not justified by reference to the contents of the first declaration. Nor was it justified taking into account the subsequent declarations and the events which followed that first conference. In my view the primary judge also erred in the findings made as to the periods of time in which the applicant did nothing or gave no explanation for delay.

1. In paragraph 10 of the first declaration (White 372), the applicant said he was told, "he may have a claim" and heard that there were "legal requirements" and "limitation periods" in making a claim. All of this was in very general terms. That paragraph did not identify the claim or the legal requirements or the limitation periods. It certainly did not suggest that the applicant had been told about any particular legal requirements or limitation periods which applied in relation to a claim under the MAC Act, as distinct from a claim under the general law. Contrary to the primary judge's assertions otherwise, paragraph 10 says nothing about any rights under the MAC Act (cf White 91T, 93S, 94D). If there was any doubt about that being the position, the second and third declarations clarified it. Paragraph 5 of the second declaration was more specific. It was expressed to be made so as to provide "some additional information":

"5. The advice that I was given was that, based on my instructions there appeared to be a clear case in negligence against the other motorcycle rider and that because of where the accident happened, it was unsure precisely what type of claim may be available to me."

1. The reference to "where the accident happened" is reasonably understood as a reference to the accident happening in a place which was not, on the face of it, a "road". It left open the possibility that even if the accident was due to the negligence of the other rider there would be no right of action against his insurer or the Nominal Defendant if his motorcycle was not registered. That is not to suggest that this had been explained to the applicant or that he understood it at the time. The message he was given was that it was not clear who he had a claim against notwithstanding that the respondent may have been negligent.

1. In paragraph 11 of the third declaration the applicant said that prior to 9 November 2010 he was not aware that he had "rights to claim under the CTP scheme" and was not "previously aware of any time limitations in making a CTP claim". The references to CTP scheme and claim in this context were to be understood as being either to a claim against the Nominal Defendant or to a claim against the insurer of a registered vehicle, albeit one to be brought against the owner or driver.

1. Accepting that the second and third declarations were described as providing "additional" or "further" information and reading them in that light, they do not by these paragraphs make inconsistent statements as to whether the applicant was or was not advised in June 2010 as to his having a claim against the respondent. Nor are they, when read in this way, contradicted by the evidence of the solicitors or inconsistent with the actions they took and the communications which subsequently occurred.

1. At the time of the conference on 7 June 2010 there were uncertainties as to whether the respondent owned the motorcycle he was driving, whether that motorcycle was registered, whether the Training Centre was a "road" for the purposes of the MAC Act, who was the occupier of that Centre and organiser of the activities on the day of the accident, whether there was a relationship between that entity and the respondent, whether that entity had insurance or was otherwise able to meet a judgment and whether, as appeared likely, the accident had occurred as a result of the negligence of the respondent. Each of these matters was relevant to a consideration of the person or persons against whom the applicant might have a claim for damages and as to the prospects of his recovering any damages awarded, in the event that such a claim was successful.

1. Mr Govan's evidence was that at the conference on 7 June 2010 the applicant told him that "he did not think he had any entitlements arising out of the incident", that "his motorcycle was not a registered road motorcycle but that he thought the other motorcycle was registered", that the police had attended the accident scene and that there was a police investigation report but the applicant did not "have these details at this stage" (White 461). Those being the instructions received by Mr Govan, he was not in a position to give any advice concerning a claim against the respondent, other than advice of the kind described by the appellant in the second declaration - namely that the other motorcycle rider appeared to have been negligent but that he (Mr Govan) was "unsure precisely what type of claim may be available".

1. Mr Govan's subsequent actions are consistent with his not having given any firm or clear advice that the applicant had a motor accident claim against the respondent or his third party insurer. On the contrary, they suggest that at this early stage he focused on a possible claim against the owner or operator of the Training Centre. On 18 June Mr Govan sent an email to the applicant (White 465). That email was headed "Your claim v Marulan Driver Training Complex" and advised that Mr Govan had written to a director of the Marulan Driver Training Centre Pty Ltd (MDTC) and that at the same time he was waiting for information as to the police event number and the name of the other rider and registration number of his motorcycle. The applicant replied to that email (White 465) identifying the other rider as the respondent (Mr Ellis) and stating that the applicant's motorcycle was "unregistered at the time". The applicant also said that he was awaiting the police event number from the "highway patrol" at Goulburn.

1. The applicant obtained that information and provided it to Mr Govan, who on 29 June 2010 wrote to the New South Wales Police Service (White 466). On 30 June the applicant gave the solicitors the registration number of the respondent's motorcycle (White 468). The solicitors then conducted an RTA search of that registration number. Unfortunately the search was conducted of registration number TZP-41 and not, as the applicant had advised, TZB-41 (White 366, 367). The response to the search conducted was that there was no motorcycle with registration number TZP-41 (White 368). From that point in time, the solicitors proceeded on the basis that the respondent's motorcycle was unregistered and that any motor accident claim would be subject to the additional requirements in s 33 of the MAC Act. The significant requirement was that there could only be a claim against the Nominal Defendant if the accident happened "in the use or operation" of the motorcycle on a "road" as that word is defined in s 3 of the MAC Act (White 362D).

1. The contemporaneous documents indicate that from this time the solicitors pursued a potential claim against the owner or operator of the Training Centre. On 15 July they again wrote to that entity requesting information as to the circumstances of the accident and as to the identity of its public liability insurer. That letter was headed "Patrick Brierley v Marulan Driver Training Complex" (White 470). On the same day the solicitors wrote to the applicant requesting a copy of "video footage of the accident" so that it could be considered "in support of your potential claim for damages". That letter had the heading "Your possible Public Liability Claim" (White 469).

1. On 4 August 2010 MDTC advised Mr Govan by email that the applicant, as a volunteer marshal on the day of the accident, may be entitled to benefits of up to $1,000 per week under its Voluntary Workers Personal Accident policy of insurance (White 472). On 5 August 2010, a claim form was sent to Mr Govan for completion by the applicant. Mr Govan then sought instructions from the applicant as to whether he wished to proceed with a claim under that policy (White 476). The applicant did not respond and on 8 September 2010, Mr Govan followed his request up by a letter (White 477) headed "Your Public Liability Claim" in which he inquired:

"Do you wish to pursue this claim? Obviously, we would have to ensure that it would not prevent you from taking further potential causes of action in relation to your injuries, such as through the court system."

The reference to "further potential causes of action", at this point in time, is not likely to have included a motor accident claim against the respondent because the solicitors believed that his motorcycle was not registered.

1. Up to this point in time it is not correct to say, as the primary judge found, that the applicant had done "nothing" since the conference of 7 June. In fact he had made inquiries and provided information to the solicitors. In mid-July he received a further communication from the solicitors saying that they were still pursuing inquiries of MDTC. In early August a response was received referring to the accident policy and on 5 August the solicitors sent that claim form to him seeking his further instructions.

1. The applicant explained his delay in responding to that request in paragraphs 17, 18 and 19 of his first declaration and in paragraphs 7 and 8 of his third declaration, where he said:

"7. After receiving the email from my solicitors advising me of the voluntary workers personal accident policy I became very dejected. I did not understand that my solicitors were investigating other possible rights I may have under the public liability legislation and believed that my only rights were under this policy. The money offered by the policy did not even begin to cover my losses as a result of the accident. I been off work for four months and had been slowly rebuilding my business since returning to work. I was not able to do all of my pre-injury work duties and had to rely on replacement labour or turn-down work which I would otherwise have been able to do. ...

8. I again focused my energy on my business and coping with my injuries as best I could by myself. After two months of trying my best to cope by myself, I contacted Carroll & O'Dea seeking further help. I did not know if there were other avenues for compensation available to me and wanted to clarify this with them."

1. His making that contact resulted in the second conference with Mr Govan on 6 October 2010. He gave Mr Govan instructions not to proceed with the insurance claim (White 462). In his third declaration the applicant said that he also instructed Mr Govan to "investigate other possible claims available to me, including a possible CTP claim. I did not know at this stage that I would have an entitlement to make a claim under the CTP scheme. I knew that the motorcycle which caused the accident was uninsured and I had no knowledge of the Nominal Defendant scheme." (White 378).

1. The primary judge found that at this conference the applicant instructed the solicitors to pursue his rights under the MAC Act (White 101G). That finding is contradicted by the applicant's evidence and is not supported by any other evidence. On 6 October 2010 Mr Govan wrote to two of the applicant's treating doctors, Drs Day and Cameron. Each letter referred to that firm acting "in relation to a personal injury claim". The letters were headed "Patrick Brierley v Marulan Driving Training Complex" or "Patrick Brierley v Marulan Driver" (White 478, 479). On 11 October 2010 the solicitors wrote to the applicant to summarise "our instructions and the status of the claim". That letter was headed "Your Public Liability Claim" (White 480). It made no reference to the respondent or to any motor accident claim. The letter noted that the solicitors were to "move ahead and organise a medico-legal appointment".

1. In late October Mr Govan perused clinical notes and reports received from Dr Day. In his view they disclosed "quite significant injury" (White 462X). As a result, he asked his assistant to organise for a medico-legal assessment of the applicant and also to arrange a conference with a barrister to discuss the applicant's claim. During that conference the barrister advised that a motor accident claim should be submitted (White 463H). In the circumstances described above, the applicant's statement that it was not until this conference that he was given that advice is not contradicted by any of the communications which preceded it. Nor was it inconsistent with any earlier statement he had made.

1. On 11 November the solicitors sent a medical certificate to Dr Cameron requesting that he complete as part of a notice of a motor accident claim. On the same day information was sought from the applicant to enable that notice of claim to be completed (White 482). The applicant responded, providing the requested material on 25 November 2010 (White 485). In his third declaration he said he did not receive that email until 19 November and that it took him a few days to gather all of the information requested (White 379L). The solicitors prepared the claim form and sent it to the applicant on 1 December 2010 (White 486). It was received by him on 6 December and signed and returned on the next day (White 379M).

1. The primary judge's other findings as to the periods during which the applicant did "nothing", or provided little or no explanation for any delay, cannot stand in the face of this evidence, none of which was challenged or contradicted by other evidence or was improbable. Those findings are referred to in [36] above.

1. The following further findings of the primary judge were not justified on the same basis: that the applicant "learned" about the MAC Act on 7 June 2010 (White 91S); that there were three versions of what the applicant was told on 7 June 2010 (White 92G); that the applicant's statement in the third declaration that he was not aware that he had rights to claim under the compulsory third party insurance before November 2010 was wrong (White 92H); that reasonably understood and taking account of the evidence of the solicitors the statutory declarations contained "conflicting versions" of what had occurred and required "guess work" on the part of the primary judge (White 92M); that the applicant learned of his rights under the MAC Act on 7 June 2010 (White 94D); that it was not possible to reconcile what was said in the first declaration with what was said in the third declaration (White 94E); that the applicant did "nothing" between 15 July 2010 and 6 October 2010 (White 95M); that the "contemporaneous inquiries were explicitly consistent with the investigation of a claim" under the MAC Act as well as the investigation of other avenues of claim (White 95T); that the contemporaneous actions described by Mr Govan demonstrate that the topic under discussion on 7 June 2010 was a claim under the MAC Act (White 96L); that the applicant did nothing between 7 June and 30 June 2010 (White 97D); that there was clear evidence that the applicant had been told about a motor vehicle claim on 7 June 2010 because he had obtained the respondent's registration details (White 97U); that the applicant offered no explanation for why nothing really happened to advance his claim between 6 October 2010 and 9 November 2010 (White 99U); and that the applicant did nothing between 1 July 2010 and 4 August 2010 (White 98R-S).

1. The evidence to which I have referred in the narrative above supported findings, as the applicant maintained, to the following effect. The applicant was given no advice at the conference on 7 June 2010 as to any particular claim which he could pursue either against Mr Ellis or the owner or operator of the Training Centre or any other party. The solicitors initially focused their investigations upon the possibility of a public liability claim against the owner or operator of the Training Centre rather than any claim against the respondent. By the end of June 2010 they were proceeding on the mistaken understanding that the respondent's motorcycle was unregistered at the time of the accident and accordingly that for there to have been a claim against the Nominal Defendant the accident had to have happened on a "road". There were no inquiries directed to that question. The correspondence with MDTC produced a reply indicating the existence of a policy of accident insurance under which a claim might be made on behalf of the applicant. The possibility of his making such a claim was raised with him. His delay in considering whether to make such a claim was explained and the explanation was justifiable in view of the fact that he believed at the time that his only rights were under that policy. At the conference which the applicant arranged on 6 October 2010 the solicitors were instructed to investigate other possible claims including a motor accident claim. In response, the solicitors sought to obtain an updated medical assessment of the applicant's position. They continued, in their correspondence, to refer to a possible public liability claim. A conference was then arranged with a barrister. At that conference the applicant was advised for the first time that he could make a motor accident claim and that one should be made promptly. Steps were then taken to obtain the information necessary to give notice of that claim. That information was obtained and notice given in December 2010.

1. In these circumstances, where the applicant was relying upon the solicitors for advice as to the claims he might be entitled to make and as to how and by what time those claims had to be notified or made, a reasonable person in his position would have experienced the same sort of delay that he did. That delay was for a period of six months from the time that he first saw the solicitors.

Conclusion

1. I am satisfied that the applicant had a full and satisfactory explanation for his delay in making the motor accident claim. The primary judge erred in concluding otherwise. The respondent's application to dismiss the proceedings commenced in the District Court should itself have been dismissed.

1. I propose the following orders be made:

(1)   Grant leave to appeal.

(2)   Appeal allowed.

(3)   Set aside orders of the District Court made on 22 March 2013.

(4)   In place thereof,

(a) dismiss the defendant's motion of 27 September 2012 seeking to dismiss the proceedings pursuant to s 73(7) of the Motor Accidents Compensation Act 1999 (NSW);

(b) order the defendant to pay the plaintiff's costs of the defendant's motion.

(5)   Order the respondent to pay the applicant/appellant's costs of the application for leave to appeal and appeal.

1. GLEESON JA: I agree with Meagher JA.

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Decision last updated: 17 July 2014