Chase v Ausgrid Management Pty Ltd

[2022] NSWDC 337

District Court

New South Wales

Medium Neutral Citation:

Chase v Ausgrid Management Pty Ltd [2022] NSWDC 337

Hearing dates:

12 May 2022

Date of orders:

15 August 2022

Decision date:

15 August 2022

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraph [187] for orders.

Catchwords:

PRACTICE AND PROCEDURE – application by defendant for dismissal of plaintiff’s proceedings commenced out of time; counter-application by plaintiff seeking leave to proceed – whether plaintiff’s explanation for delay in commencing proceedings is full and satisfactory and justifying a grant of leave to proceed absent a material prejudice to the defendant

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW), s 14, s 26, s 56, s 58

Motor Accidents Compensation Act 1999 (NSW), s 66, s 70, s 72, s 73, s 92, s 96, s 109

Workers Compensation Act 1987 (NSW), s 66, s 151L

Cases Cited:

Bluescope Steel Pty Ltd v De Caires [2002] NSWCA 43

Chase v Blue Op Partner & Ors [2021] NSWDC 249

Djakovic v Perez [2015] NSWCA 174

Eades v Gunestepe [2012] NSWCA 204

Ellis v Reko Pty Limited [2010] NSWCA 319

Galea v Bagtrans Pty Limited [2010] NSWCA 350

Holt v Wynter [2000] NSWCA 895

House v The King (1936) 55 CLR 499; [1936] HCA 40

Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2001] NSWCA 442

Karambelas v Zaknic (No 2) [2014] NSWCA 433

Mancini v Thompson [2002] NSWCA 38

Markisic v Commonwealth of Australia [2010] NSWCA 273

Ren v Jiang (No 3) [2014] NSWCA 204

Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53

Smith v Grant [2006] NSWCA 244

Smith v Grant [2006] NSWCA 244

Walker v Howard [2009] NSWCA 408

Category:

Procedural rulings

Parties:

David Chase (Plaintiff)
Ausgrid Management Pty Ltd t/as Ausgrid (Defendant)

Representation:

Counsel:
Mr R Foord (Plaintiff/respondent)
Mr KR Rewell SC (Defendant/applicant)

Solicitors:
Law Partners (Plaintiff)
McInnes Wilson (Defendant)

File Number(s):

2021/321913

Publication restriction:

None

Judgment

Table of Contents

Competing interlocutory applications	[1] – [6]
Summary of outcome	[7]
Overview	[8] – [18]
Factual background	[19] – [33]
Present procedural position	[34] – [36]
Legislative requirements	[37] – [40]
Issues for determination	[41] – [42]
Evidentiary basis for defendant’s dismissal application	[43] – [51]
Evidence of Mathew Foley	[44] – [51]
Evidentiary basis for plaintiff’s application for leave to proceed	[52] – [118]
Plaintiff’s statutory declaration – 4 November 2020	[56] – [58]
Affidavit evidence from the plaintiff – 11 March 2022	[59] – [73]
Plaintiff’s oral evidence	[74] – [79]
Affidavit evidence from Ms Gillian Potts	[80] – [87]
Evidence of Mr Nayven Taouk	[88] – [118]
Issue 1 – Non-report of accident to the police	[119] – [122]
Issue 2 – No notice of claim within 6 months of accident	[123]
Issue 3 – Quantum threshold	[124]
Issue 4 – Explanation for delay in commencing proceedings	[125] – [182]
Legal principles as extracted from cases decided on appeal	[130] – [142]
A reasonable person in the position of the plaintiff	[143] – [154]
Plaintiff’s particular explanations for delay	[155] – [169]
The former solicitor’s explanations	[170] – [172]
The current solicitor’s explanations	[173]
Are the explanations full?	[174]
Are the explanations satisfactory?	[175] – [178]
Conclusions as to the nature of the explanations	[179] – [182]
Disposition	[183] – [184]
Costs	[185] – [186]
Orders	[187]

Competing interlocutory applications

1. The plaintiff, David Chase, claims damages for personal injury he sustained whilst driving an allegedly defective heavy vehicle owned by the defendant, Ausgrid Management Pty Ltd, trading as Ausgrid ACN 615 449 548 (“Ausgrid”). The proceedings are governed by the provisions of the Motor Accidents Compensation Act 1999 (NSW) (“MAC Act”). That fact was not immediately apparent to the plaintiff’s solicitor before the expiry of some critical limitation dates.

2. A procedural dispute has arisen because the plaintiff filed these proceedings after the expiry of the prescribed 3-year limitation period without a prior application to the Court for a grant of leave to proceed.

3. That delay occurred in unusual and complicated circumstances, partly due to fault conceded in hindsight by his solicitor, and partly due to delay by the defendant Ausgrid and one of its third-party insurers. The latter period of delay occurred because it took some time for Ausgrid and its insurer to reply to the plaintiff’s solicitor’s urgent request for the correct vehicle identification details so that the correct insurer could be notified of the plaintiff’s claim. The 3-year limitation period ran out during the time that request remained unanswered.

4. After Ausgrid had been served with the plaintiff’s present statement of claim, its third-party insurer rejected, and has continued to reject as incomplete and unsatisfactory, the plaintiff’s explanations for the delay incurred in the late filing of his proceedings.

5. In conformity with those decisions by the third-party insurer, the defendant seeks to have the plaintiff’s case dismissed for non-compliance with the required statutory timetable. In response to the defendant’s dismissal application, the plaintiff seeks an opposing order for a grant of leave to proceed.

6. The resolution of these competing applications involves the exercise of reasoned discretion: House v The King (1936) 55 CLR 499; [1936] HCA 40. In this case it has required a detailed examination and exposition of a plethora of material relied upon by the parties to discern whether the plaintiff’s explanations are full and satisfactory, contrary to the position taken by the defendant’s third-party insurer. That task involved sifting through an unhelpfully structured “muck of evidence”, a term of legal archaeology that I shall borrow from Philippe Sands QC, as used albeit in a different context in his work, East West Street: Weidenfeld & Nicholson, 2007. My reasons for decision now follow.

Summary of outcome

7. In summary, on my examination of the evidence in these competing applications, and for the reasons that will be made plain after identifying and analysing the issues and the evidence, I have found that, on a consideration of the dictates of justice, the plaintiff has fully and satisfactorily explained the delay and has established a compelling case for a grant of the leave he sought in order to maintain his proceedings: s 58(2) of the Civil Procedure Act 2005 (NSW) (“CP Act”); s 109 of the MAC Act. That conclusion necessarily means that the defendant’s application for dismissal of the plaintiff’s proceedings must be refused.

Overview

8. In reviewing the factual background of this application, and without intending any disrespect to the plaintiff, it is relevant to note that he is a relatively unsophisticated man with a limited education, having left school at the end of Year 10.

9. Relevant to the issues in this case, at the relevant times, the plaintiff had no particular knowledge of the structured nuances and the differing labyrinthine procedural requirements of the varying compensation schemes involving claims for workers’ compensation, compulsory third party (“CTP”) motor accidents, and public liability, as existed in this State, and which applied to his circumstances. He was similarly unaware of the need to comply with the applicable procedural time limits in order to pursue his entitlements to compensation under those varying schemes.

10. Understandably, the plaintiff relied upon his assigned solicitor, Mr Nayven Taouk, then an employee of Law Partners, to deal with those considerations within the complex statutory framework that needed to be navigated for him to achieve compensation for his injury.

11. Mr Taouk gave oral evidence at the hearing of these applications. He had earlier prepared evidence in the form of statutory declarations and affidavits aimed at providing the defendant’s insurer with a full and satisfactory explanation for the delay incurred in the filing of the plaintiff’s claim.

12. At the hearing Mr Taouk was searchingly cross-examined by Senior Counsel for Ausgrid concerning the content of the various documents he had prepared in order to advance the plaintiff’s claim. This was in circumstances where the CTP insurer, QBE Insurance (Australia) Ltd (“QBE”), maintained a continued attitude of rejection of the explanations proffered by the plaintiff and by the solicitors acting on his behalf, concerning the delay incurred in bringing the proceedings.

13. In my assessment, Mr Taouk gave unhesitatingly candid answers in response to the questions that were asked of him in that cross-examination. On my consideration of the evidence as a whole, I have accepted his evidence in its entirety. He candidly conceded, in hindsight, that in the confusing circumstances he was at fault with regard to aspects of the timeline of events that led to the expiry of the limitation periods that applied in this case.

14. Unfortunately, the plaintiff’s claim became one out of time in unusually rare and complicated circumstances relating to the concurrent operation of the statutory schemes for making claims for workers’ compensation, work injury damages claims, civil liability claims, and motor accident claims. In some respects, the delineation between the requirements of those schemes do not reveal bright lines of demarcation, where there was some scope for overlap, and ample scope existed for experienced practitioners to be misled in some nuanced factual circumstances.

15. In this case, it is of some significance that, before the 3-year limitation period expired, the defendant Ausgrid, and one of its third-party insurers, were unintentionally instrumental in causing a material element of the delay experienced by the plaintiff in filing his claim.

16. On a review of the evidence, it is clear that of the delays incurred the two material elements of delay requiring explanation in this case are first, the delay comprising the first 6 months which followed the plaintiff’s injury, where because of the plaintiff’s lack of knowledge as to what was required, the affected CTP insurer was not notified of his claim when it should have been, and secondly, the element of delay that occurred later, due to the plaintiff’s claim being filed after the expiry of the 3-year limitation period.

17. In that latter period of time, Ausgrid and one of its insurers unintentionally contributed to that delay because time was taken to obtain and provide critical information as to the identity of the vehicle in question where that information was needed to identify the relevant insurer.

18. In these applications, it became necessary to review the entire factual background to the plaintiff’s claim and the ensuing events in order to reach a concluded view on the appropriate disposition of the competing interlocutory applications before the Court. Those background events are summarised in the paragraphs that now follow.

Factual background

19. On 9 June 2017, the plaintiff was driving the defendant’s heavy vehicle with the defendant’s permission. On that day, in the course of his work, he had driven three such vehicles belonging to the defendant. He did not have a record he could consult in order to identify those vehicles with the level of particularity required for instituting legal proceedings.

20. The plaintiff claims that due to the absence of a properly functioning pneumatic air suspension system which should have been operational within the driver’s seat, he injured his back when the vehicle he was driving bounced as he drove it over a dip in the roadway on the M1 Motorway. Consequently, he claims his injury was due to a breach of the duty of care owed by the defendant in permitting the vehicle to be used whilst it was in a defective condition.

21. The plaintiff filed his statement of claim on 12 November 2021 without a prior grant of leave from the Court. Such leave was required because the filing was out of the time prescribed by statute. Accordingly, as defined by the MAC Act, his proceedings are necessarily deemed to be a late claim. This occurred in explicable circumstances where beforehand, when the plaintiff had sought initial legal advice, but this was limited to only seeking guidance as to his workers’ compensation rights.

22. The late filing of the plaintiff’s present claim occurred because earlier, following subsequent legal advice, he had been advised by his solicitor to proceed with a workers’ compensation claim, and to then proceed with separate negligence proceedings, based upon principles relating to public or occupiers’ liability in relation to the condition of the vehicle involved in his injury.

23. On 16 June 2021, those other proceedings alleging public or occupiers’ liability negligence were dismissed by another Judge of this Court on the ground that the correct cause of action had not been identified, and as a result, the wrong party had been sued: Chase v Blue Op Partner & Ors [2021] NSWDC 249. In these proceedings the plaintiff is now seeking to overcome and rectify that position in order to claim compensation for his injuries.

24. Two things should be noted about those dismissed proceedings.

25. First, they were in fact commenced against the correct defendant, Ausgrid, the present defendant, but on a different basis, within the 3-year limitation period on the mistaken assumption that the proceedings were governed by the provisions of the Civil Liability Act 2002 (NSW), and not by the provisions of the MAC Act.

26. Secondly, those proceedings, as originally formulated, although initially framed against Ausgrid, the present defendant, were later amended at the urging of the solicitors for Ausgrid in that case, to replace that defendant with a group of other named corporate defendants, as a partnership, in lieu of Ausgrid. It should be noted that the solicitors who represented Ausgrid in the dismissed proceedings and obtained that result were Messrs Norton Rose Fulbright, and not Messrs McInnes Wilson, who represent Ausgrid in this case.

27. Against that procedural background, I accept the submission made on behalf of the plaintiff that the circumstances of his injury have led to some unusual permutations as to his potential legal remedies for compensation.

28. The first of those potential remedies available to the plaintiff was to pursue a public liability claim against Ausgrid in relation to poor maintenance of the truck. The second was a workers’ compensation claim against his employer to seek the payment of statutory benefits, and a related modified common law work injury damages claim against his employer due to the arguably deficient system of work in which the plaintiff was engaged in at that time. The third was a CTP negligence claim against the present defendant, Ausgrid, as the owner of the truck that was involved in the circumstances of the plaintiff’s injury.

29. The plaintiff initially sought and obtained legal advice from the firm Law Partners in relation to his statutory workers’ compensation rights. No controversy arose in relation to the detail of what he was advised in relation to those rights. The pursuit of the plaintiff’s workers’ compensation rights would not have precluded him from pursuing a claim for damages for personal injury under any other of the available schemes for compensation. To date, the plaintiff has apparently already received over $424,000 in statutory workers’ compensation benefits due to the subject injury.

30. The plaintiff was advised by his solicitors that in addition to his workers’ compensation rights he should pursue a public liability claim against the owner of the truck. He made that claim within the applicable 3-year limitation period, ironically, initially naming Ausgrid as the defendant. Ultimately, on 16 June 2021, when those proceedings were critically scrutinised, they proved to have been misconceived, and this resulted in the dismissal of those proceedings: Chase v Blue Op Partner & Ors [2021] NSWDC 249.

31. By the time those earlier proceedings were dismissed, the plaintiff was already out of time by a little over a year for the timely filing of his present CTP damages claim. He filed the present proceedings a little over 5 months later, which means he was in the circumstances, some 18 months late in bringing what had by then, become a late CTP claim.

32. In these proceedings, in retrospect, the plaintiff’s former solicitor has candidly and regretfully acknowledged that in the circumstances, the plaintiff had been incorrectly advised, although the confusion which led to that situation was understandable, and the error was unintentional.

33. In the plaintiff’s application for leave to proceed, any questions of actual prejudice that might arise for consideration must be determined against the above factual background.

Present procedural position

34. On 17 December 2021, the defendant filed the present application to have the plaintiff’s claim dismissed pursuant to s 70 of the MAC Act. In the alternative, the defendant sought to have the plaintiff’s claim dismissed for non-compliance with the requirements of s 72 and s 109 of that Act. The defendant also sought consequential orders for costs.

35. During the hearing of the defendant’s application for dismissal, it became clear that the plaintiff required, but had not filed, an application for leave to enable him to proceed with his CTP claim: s 109 of the MAC Act.

36. Absent evidence of any real prejudice to the defendant, given the similarity of the central issues in both types of application, and in accordance with the spirit of s 56 of the CP Act, which requires the Court to facilitate a just, quick and cheap determination of the real issues in dispute, the parties were informed that on pragmatic grounds, an order would be made dispensing with the need for the plaintiff to file a formal counter-application to seek such leave: s 14 of the CP Act.

Legislative requirements

37. At this point it is pertinent to identify the effect of the relevant legislative provisions.

38. Briefly summarised, s 70 of the MAC Act requires a motor accident claimant to report a motor accident to police. In cases of late claims, in accordance with the standards identified in s 66(2) of the Act, a full and satisfactory explanation must be provided by a late claimant for not complying with the duties arising under that Act. Such failures of compliance are to be determined according to what a hypothetical reasonable person would have done in the plaintiff’s circumstances.

39. Section 72 of that Act requires that notice of a claim be given within 6 months of the occurrence of an accident. Section 109 of that Act requires a claimant to commence proceedings within 3 years of the occurrence of an accident. The latter provision also requires that in the event of a late claim, a claimant must satisfy a statutory quantum threshold, and must also provide a full and satisfactory explanation for the delay in commencing the proceedings before a court can grant leave to proceed, notwithstanding the antecedent procedural non-compliances.

40. In factual circumstances which attract those provisions, it is always open to a CTP insurer, in an appropriate case, to accept a proffered explanation for delay as being both full and satisfactory so as to justify and facilitate a grant of leave. Regrettably, that did not occur in this case.

Issues for determination

41. Absent evidence and arguments suggesting the existence of a material prejudice affecting the defendant, the issues requiring determination in this notice of motion that are relevant to the question of whether or not the plaintiff should be granted leave to proceed with his present claim may be summarised as follows:

1. Whether the plaintiff’s explanation to the Court for not reporting the underlying factual circumstances of the incident to the police is full and satisfactory: s 70(1) of the MAC Act;

1. The significance and the effect of the failure of the plaintiff to give notice of his CTP claim to the relevantly affected insurer within 6 months of its occurrence: s 72(1) of the MAC Act;

2. Whether, in the event that the plaintiff satisfies all other gateway criteria for a grant of leave, he is likely to be awarded damages of not less than 25 per cent of a defined statutory threshold: s 109(2) of the MAC Act;

3. Whether the plaintiff has provided a full and satisfactory explanation for his delay in not commencing the proceedings within 3 years of the incident which gave rise to his injury: s 109(3)(a) of the MAC Act.

42. My review of the extensive evidence on those issues appears between paragraphs [43] and [118] below. My consideration and determination of those issues appears between paragraphs [119] to [182] below.

Evidentiary basis for defendant’s dismissal application

43. In support of the strike-out application, the defendant relied upon the affidavit of its solicitor, Mathew Foley, sworn on 17 December 2021. Mr Foley’s affidavit included compendious annexures: pp 1 – 127. The defendant’s court book comprised 322 pages of material which will be identified and reviewed in the paragraphs that now follow.

Evidence of Mathew Foley

44. Mr Foley’s affidavit was essentially of a procedural nature. It set out and recited the chronology of events with the supporting documentary material that has led to the present procedural difficulties which the plaintiff faces and seeks to overcome as a result of the defendant’s CTP insurer rejecting his explanation for his late claim. Mr Foley’s recitation of events proceeded as follows:

1. Attention was drawn to the fact that within the 3-year limitation period the plaintiff had initially pursued an occupiers’ liability case against the owner of the vehicle, noting that those proceedings were dismissed by an order of the Court on 16 June 2021, where that dismissal was on the ground that the proceedings were ill-founded as the plaintiff’s claim for damages was more properly founded upon the assumed occurrence of a CTP motor accident, as noted at paragraph [23] above. An irony of that position was that the present defendant, Ausgrid, was initially named as a defendant in those proceedings, which were in fact filed within the 3-year limitation period for that claimed cause of action;

2. This necessarily meant that the plaintiff’s subsequent claim for damages against the same defendant arising from a motor accident, which was rejected by the defendant’s CTP insurer, was filed outside the 3-year limitation period;

3. A number of consequential difficulties relating to the applicable statutory requirements were highlighted, as follows:

1. Contrary to the requirements of s 70(1) of the MAC Act, and in the insurer’s view, without satisfactory explanation, the incident giving rise to the plaintiff’s claim had not been reported to the police in a timely manner, where that provision was aimed at protecting CTP insurers from exposure to late claims;

2. Contrary to the requirements of s 72(1) of the MAC Act, the plaintiff had not lodged his CTP claim within 6 months of the incident, namely, by 9 December 2017, where that provision was also intended to be protective of insurers.

45. In the circumstances outlined in Mr Foley’s affidavit, the CTP insurer rejected the plaintiff’s claim because his proceedings had been commenced 18 months after the expiry of the 3-year limitation period.

46. In taking that stance, the insurer asserted that the plaintiff had not provided a full and satisfactory explanation for the delay in bringing his claim: s 109(3)(a) of the MAC Act. At one point, in rejecting the plaintiff’s explanation for the delay, the CTP insurer asserted, somewhat contentiously as it turns out, that it appeared the plaintiff had knowingly allowed the limitation period to expire without taking appropriate action. The plaintiff takes issue with that assertion.

47. Following my review of the evidence as a whole, I consider that a relevant and significant series of events that relate to Mr Foley’s client, Ausgrid, have not been fully highlighted in the chronology of events as relied upon by the defendant in this case.

48. That material relates to the plaintiff’s innocent misidentification of the vehicle in question. In June/July 2020, this resulted in a consequential delay in the plaintiff’s solicitor correctly identifying it and then notifying the correct insurer. That element of delay was due to the time taken by Ausgrid and Allianz, one of its CTP insurers, to find the correct information and advise the plaintiff’s solicitor accordingly. In the time that was taken up in that short period, the 3-year limitation period for making a CTP claim had unfortunately expired.

49. I have considered the extensive materials annexed to Mr Foley’s affidavit, which are as follows:

1. A copy of the judgment of the District Court in the plaintiff’s previous dismissed proceedings, Chase v Blue Op Partner & Ors [2021] NSWDC 249: Annexure “C”, pp 14 – 23;

2. A copy of the plaintiff’s application to the State Insurance Regulatory Authority (“SIRA”), for a special assessment of a procedural claims dispute pursuant to s 96 of the MAC Act: Annexure “D”, pp 24 – 35;

3. A copy of the plaintiff’s statement of issues and submissions to SIRA dated 22 January 2021 seeking a CARS 5A special assessment from the claims resolution service: Annexure “D”, pp 36 – 39;

4. A copy of the insurer’s submissions to SIRA dated 1 February 2021, including the insurer’s reply to the plaintiff’s submissions: Annexure “E”, pp 40 – 55;

5. A copy of a certificate of exemption issued by SIRA on 27 September 2021 pursuant to s 92(1)(b) of the MAC Act, and the related clauses 14.16.3, 14.16.4, 14.16.7 and 14.16.9 of the claims assessment guidelines: Annexure “F”, pp 56 – 58;

6. A copy of the plaintiff’s personal injury claim form lodged with the defendant’s correct CTP insurer, QBE, on 9 June 2020 as distinct from the claim form which had been lodged with the other, incorrect insurer, Allianz: Annexure “G”, pp 59 – 68;

7. A copy of a letter dated 29 July 2020 from Ausgrid’s solicitor to the plaintiff’s solicitor, asserting contentiously (after the expiry of the 3-year limitation period) that the circumstances of the plaintiff’s then current claim “do not fall within the ambit” of the MAC Act, and suggesting, that if the plaintiff maintained a contrary view, a full and satisfactory explanation should be provided for the delay in making the claim: Annexure “H”, pp 67 – 68;

8. A copy of an email dated 22 September 2020 from the plaintiff’s solicitor to the defendant’s solicitor taking issue with the insurer’s view as cited in sub-paragraph (7) above, and enclosing a statutory declaration dated 22 September 2020 from Mr Taouk, the plaintiff’s then solicitor: Annexure “J”, pp 69 – 75;

9. A copy of a letter dated 8 October 2020 from the defendant’s solicitor to the plaintiff’s solicitor taking issue with the sufficiency of the explanation provided on the plaintiff’s behalf concerning the delay in making his claim, including some comments which critically traversed particular sections of Mr Taouk’s statutory declaration: Annexure “K”, pp 76 – 77;

10. A copy of a further statutory declaration dated 4 November 2020 from Mr Taouk setting out a series of detailed responses to the 8 October 2020 letter from the solicitor for the defendant referred to in sub-paragraph (9) above: Annexure “L”, pp 78 – 83. That document will be analysed in the review of Mr Taouk’s evidence in the context of the consideration of Issue 4;

11. A copy of a detailed statutory declaration from the plaintiff dated 4 November 2020, setting out further explanatory material in paragraphs 1 – 68: Annexure “M”, pp 119 – 126;

12. A copy of a letter dated 2 December 2020 from the defendant’s solicitor to the plaintiff’s solicitor advising that the defendant’s insurer continues to reject the plaintiff’s claim, citing the stated basis of the rejection being that his explanations were considered to be neither full nor satisfactory, also indicating that the insurer relies on the previous grounds and other unspecified grounds of rejection including those previously identified in the letter dated 8 October 2020. That letter, which appears to have been in part expressed in formulaic terms, concluded as follows:

“In addition but not limited to the reasons stated in the aforementioned correspondence, the insurer also relies on the lack of explanation relevant to the delay between June 2019 and May 2020 in circumstances where the request for surgery had been rejected by the Claimant’s workers compensation insurer yet the claimant seemingly did nothing in relation to the matter (despite having already engaged solicitors) until he was contacted by the solicitor in May 2020 as the limitation period 3 years from the date of his incident was expiring.

For the reasons stated (but not limited to) in this letter and our letter dated 8 October 2020 the insurer rejects the claim and the explanation/s as being neither full nor satisfactory.”

[Annexure “M”, p 127]

50. In my view, the above reasons for rejection of the plaintiff’s explanation not only lacked adequate particularity of reasoning, but by asserting that the plaintiff “seemingly did nothing”, it appears the insurer’s rejection was based on the falsely assumed premise that the plaintiff had been given certain legal advice when such advice had not actually been provided to him, as will become clear from an examination of the evidence of Mr Taouk. That part of the CTP insurer’s reasoning which relied on the plaintiff having engaged solicitors was superficial as the terms of that engagement were not given due weight.

51. The above constellation of events gave rise to the two competing applications presently before the Court, the first application in time being the defendant’s strike-out application, and the second application in time being the plaintiff’s application for leave to proceed. Relevant aspects of the material identified above, and in the plaintiff’s explanatory materials set out in the paragraphs that now follow, will be referred to in the consideration of the issues requiring determination.

Evidentiary basis for plaintiff’s application for leave to proceed

52. The plaintiff’s application for leave was reactive to the defendant’s dismissal application. In support of the plaintiff’s resistance to the defendant’s dismissal application, and in support of his own application for leave to proceed, he relied on his statutory declaration dated 4 November 2020, his own affidavit sworn on 11 March 2022, his own oral evidence, two affidavits from his solicitor, Ms Gillian Potts, sworn 21 April 2022 and 10 May 2022, with annexures, and two statutory declarations and two affidavits by Mr Taouk.

53. The 21 April 2022 affidavit of the plaintiff’s present solicitor, Ms Potts, also included a series of compendious annexures: pp 1 – 150. Also amongst those annexures were affidavits of the plaintiff’s former solicitor, Mr Taouk, affirmed on 19 February 2021 and 9 March 2021, and another statutory declaration from Mr Taouk affirmed on 4 November 2020, which was filed in the previous dismissed proceedings referred to at paragraph [23] above.

54. At the request of the defendant, the plaintiff gave oral evidence in support of his application (T9 – T20), as did Mr Taouk: T21 – T33. This was a justifiable exception to the general rule restricting cross-examination on affidavits in interlocutory applications because it was necessary to clarify some factual details: Ren v Jiang (No 3) [2014] NSWCA 204, at [11]; Markisic v Commonwealth of Australia [2010] NSWCA 273, at [31].

55. A review of the documentary and oral evidence relied upon by the plaintiff now follows.

Plaintiff’s statutory declaration – 4 November 2020

56. On 4 November 2020 the plaintiff provided a statutory declaration. It was attached to Mr Foley’s affidavit as Annexure “M” and comprised 68 paragraphs: pp 119 – 126. The document is erroneously headed “STATUTORY DECLARATION OF NAYVEN TAOUK” instead of listing the plaintiff’s name. Nothing of significance turns on that error.

57. In that statutory declaration the plaintiff referred to the following matters:

1. His pre-accident employment details and his description of the accident and its aftermath in terms of pain and his inability to work: paragraphs 1 – 10;

2. His medical consultations, and the resultant investigations and the initial medical treatment he obtained: paragraphs 11 – 20;

3. His first contact with Law Partners on 30 November 2017 for advice on his workers’ compensation rights, and his later further contact with that firm on 22 January 2018, which led to him retaining that firm on 8 March 2018 to act for him, his initial conference with his solicitor on 27 March 2017, and the circumstances in which he received advice as to his workers’ compensation rights, and the absence of any advice on CTP issues: paragraphs 21 – 28;

4. His subsequent medical and surgical treatment and associated investigations between 16 March 2018 and 24 June 2019, at which time the workers’ compensation insurer, at that time GIO, issued a formal notice denying liability for the procedure recommended to him by his treating neurosurgeon, Professor Sheridan, for an L3 – L5 laminectomy and a related nerve root decompression procedure: paragraphs 29 – 44;

5. His struggles with his post-injury disabilities: paragraphs 45 – 51;

6. His 1 May 2020 email communication from Law Partners requesting particulars from him as to his situation, and advising him there was a 3 year statutory limitation for him to file a public liability claim. This was in circumstances where he had no previous knowledge or understanding of such claims: paragraph 52;

7. His participation in a 6 May 2020 conference with counsel, and some discussion on his solicitor’s 11 May 2020 request to the GIO for it to review the decision to deny liability for the proposed surgical treatment to his back, as was recommended by Professor Sheridan, followed by GIO’s acceptance of liability for his treatment: paragraphs 53 – 56;

8. His receipt of a 2 June 2020 call from his solicitor advising him that he might have an available CTP claim, requiring him to complete a personal injury claim form to pursue that claim. At this point, unfortunately, the plaintiff did not have the correct registration details of the vehicle that was involved in his injury, and this was a problem which resulted in a continuing delay which led to the expiry of the 3-year limitation period in those events: paragraph 57;

9. His receipt of a 16 June 2020 letter from his solicitor with advice on his CTP claim, by which time the 3-year limitation period had expired: paragraph 58;

10. His anxious preoccupation at that time with his need for surgery, which was carried out on 17 July 2020, and which resulted in him achieving some relief, which then led to him attending, without positive result, to his solicitor’s advice to report the incident, which gave rise to his injury, to the police: paragraphs 59 – 63;

11. His continuing post-operative day-to-day struggles due to ongoing injury-related disabilities: paragraphs 64 – 66;

12. His unawareness before receiving advice from his solicitor as to his legal rights, entitlements, and statutory obligations relating to workers’ compensation and CTP claims for personal injury, where he was at all times reliant upon his solicitor to provide him with advice on such matters, and where his personal priority had been to obtain the treatment which his specialist had recommended to him: paragraphs 67 – 68.

58. The plaintiff’s statutory declaration was dated 4 November 2020. This was the same date when the defendant’s solicitor received that document, along with an accompanying statutory declaration from Mr Taouk. One month later, on 2 December 2020, Messrs McInnes Wilson, the solicitors acting on behalf of the CTP insurer, wrote to the plaintiff’s solicitor advising that the insurer continues to reject the claim and the explanation (for the delay) as being “neither full nor satisfactory”, relying also on its earlier correspondence dated 8 October 2020.

Affidavit evidence from the plaintiff – 11 March 2022

59. The plaintiff prepared an affidavit on 11 March 2022. The initial matters of relevance to emerge from this affidavit essentially comprised a basic description of the manner in which his injury occurred, the resultant problems that have followed and which have continued. The affidavit was essentially along the lines of the plaintiff’s earlier statutory declaration of 4 November 2020 but with some further detail added, including details of the medical investigations and treatment that he has either received, or had difficulty obtaining over the course of time.

60. It was because of those matters that, on about 30 November 2017, the plaintiff called Law Partners to obtain some legal advice about his potential workers’ compensation rights. This was in the context where the plaintiff had not previously been involved in either a workers’ compensation claim, or a CTP claim, and had only very limited understanding on such matters.

61. It is clear from the materials in evidence that Law Partners responded to the plaintiff’s inquiry by advising him he had workers’ compensation rights and there was a potential for him to make a work injury damages claim in addition to his workers’ compensation rights once his medical condition had stabilised.

62. The legal advice the plaintiff received at that time was reasonable and reflective of the circumstances. This was because the plaintiff’s injury occurred in the course of his employment and there were no other vehicles involved in the events in which the injury occurred. In those circumstances, the plaintiff said, and I accept, that he did not formally engage Law Partners at that time as he was intent on concentrating on his treatment, and at that time, there was no immediate dispute that required attention through legal representation.

63. On 22 January 2018, properly, Law Partners called the plaintiff as a follow-up of the previous contact with him. At that time the plaintiff was significantly distracted by his son’s seriously concerning health issues. However, later, he booked a consultation scheduled to take place with Law Partners for 8 March 2018.

64. On 8 March 2018, Mr Taouk, the solicitor assigned by Law Partners to handle the plaintiff’s matter, took detailed instructions from the plaintiff in connection with his workers’ compensation claim. Having duly considered the evidence of the plaintiff and Mr Taouk, I accept that in those events, at no point was there a discussion raised on the plaintiff’s potential CTP rights. At that time the pursuit of the plaintiff’s workers’ compensation rights remained in abeyance because major surgical treatment was being planned for a proposed L3 to L5 laminectomy.

65. That surgery took place on 16 March 2018. However, the plaintiff’s injury-related health problems did not abate following that surgery. Instead, they continued, and the plaintiff remained under medical review and further medical testing. This remained the case until 24 June 2019, when the workers’ compensation insurer issued a disputation notice denying liability for the plaintiff’s L3-5 laminectomy and nerve root decompression. The plaintiff was distressed by that development because, by that time, he was being advised by his treating doctors that he would require lumbar fusion surgery, which he decided he would have, consistent with his obligation to mitigate his damages: s 151L of the Workers Compensation Act 1987 (NSW) (“WC Act”).

66. At around that time, and on 1 May 2020, the plaintiff was again contacted by Law Partners. At that time, he was advised that the 3-year limitation period for lodging a public liability claim was approaching and that issue was under investigation. I accept that at that time the plaintiff had no knowledge or understanding of the basis for or the timing parameters of public liability claims.

59. On 6 May 2020, the plaintiff had a telephone conference with Mr Taouk and with counsel to clarify the circumstances of his injury. As a result, correspondence ensued with the workers’ compensation insurer, which resulted in the insurer ultimately accepting liability for the plaintiff’s proposed, albeit delayed spinal fusion surgery. This was at a time when the plaintiff was experiencing great anxiety. He was preoccupied with his son’s health problems, and his own health problems, including the pending proposed major surgery, which ultimately took place on 16 July 2020.

60. It was in the lead-up to those events that on 2 June 2020, Law Partners called the plaintiff to tell him that he might have an available CTP claim. However, the plaintiff was at that time unable to provide the correct registration number of the vehicle involved in his injury. This evidentiary hiatus inevitably caused a delay at a critical time whilst clarifying correspondence took place with different insurers.

61. On 16 June 2020, the plaintiff received a letter from Law Partners advising him as to the possibility of him having an available CTP claim. By that time, 8 days earlier, the 3-year limitation period had already expired. Surrounding those events, the plaintiff was significantly debilitated by his preoccupying medical issues and he was anxiously awaiting major spinal surgery.

62. Whilst the 16 July 2020 surgery provided the plaintiff with a degree of relief from his physical problems, his pain and the related disabilities remained, which meant that he could not return to his previous work.

63. It was in that time frame that the plaintiff’s solicitors advised him to report to the police the details of the incident that led to his injury because an out of time or a late CTP claim was being contemplated by his solicitors.

64. On 13 October 2020, on the advice of his solicitor, the plaintiff called the police assistance line to make a belated report but he was told he needed to actually attend at a police station to make a report. On 14 October 2020, he attended Campbeltown Police Station to make a report of the incident but his request was refused on the stated ground that the incident had occurred more than 3 years earlier, the inference being such a report would have been futile at that time.

65. On the issue of quantum, the limited evidence suggests that the plaintiff continues to suffer significant injury-related physical and psychological disabilities which indicates he could expect to receive a significant damages award if his CTP claim was successful.

Plaintiff’s oral evidence

74. In the course of cross-examination of the plaintiff on his affidavit evidence he confirmed that he was generally aware that for many years there has been a scheme available in this State for faultless drivers to obtain some compensation for injuries, and similarly, he was aware there was a workers’ compensation scheme for injured workers, but was unaware of the details.

75. That said, I am satisfied that following the occurrence of his injury and until June 2020, the plaintiff was unaware that there might be a viable potential for him to claim motor accident compensation. I accept that it was not until Mr Taouk told him of that possibility that he became aware of the possibility that he could pursue such a potential claim. Until then, he simply thought of his injury as having given rise to a workers’ compensation claim. I consider that to have been a reasonably held view from his perspective in the circumstances where no other vehicle had been involved or at fault in the subject incident.

76. The plaintiff confirmed that when he retained Law Partners as his solicitors in March 2018, he had only done so in relation to this workers’ compensation rights as he was experiencing the problem of the workers’ compensation insurer declining to pay for the surgical treatment that had been recommended to him. He confirmed that at that time, he was in receipt of workers’ compensation payments, and he received advice about the possibility of seeking a lump sum workers’ compensation payment, but he was not given any advice or information about the potential for him to make a CTP motor accident claim for damages until June 2020.

77. The plaintiff confirmed that in the intervening period between 2018 and 1 May 2020, and then early June 2020, his communications with his solicitors concerned the progress of his workers’ compensation claim and a public liability claim. The early part of those communications concerned the dispute over the need and the cost of the recommended surgery, where the workers’ compensation insurer had taken the position of preferring to follow the advice of a non-treating doctor on that question, rather than accepting the opinion of a treating doctor, and where his preoccupation was his concern to obtain the treatment he required for his injured back. This was plainly a distracting time for the plaintiff.

78. When pressed during cross-examination, the plaintiff did not accept the speculative proposition that, in the face of the position taken by the workers’ compensation insurer in refusing to authorise the recommended back surgery, he may have asked his solicitor whether “there (is) some other way we can deal with this?”: T17.47. I accept the plaintiff’s evidence in that regard.

79. The plaintiff steadfastly defended his non-acceptance of that proposition by saying he was not sure about the legal position and he had assumed, with what I here interpolate as being justifiable confidence, and without cause for doubt, that his solicitor was looking after his interests, and all he wanted to do was “get fixed up and go back to work”, which meant overcoming the resistance of the workers’ compensation insurer in meeting the cost of the surgery he needed, where from 2017, his own resources were limited as he had been paying for his son’s cancer treatment: T18 – 20.

Affidavit evidence from Ms Gillian Potts

80. The plaintiff’s present solicitor, Ms Gillian Potts, has provided two affidavits in resistance to the defendant’s strike-out application. These were respectively affirmed on 21 April 2022 and 10 May 2022. No application was made for Ms Potts to give oral evidence. The effect of her affidavit evidence and its accompanying annexures, as contained in the plaintiff’s Court Book, is summarised below. Ms Potts, a solicitor employed by Law Partners, has been the plaintiff’s solicitor since 2 July 2021, which is when the plaintiff’s former solicitor, Mr Taouk left the employment of Law Partners.

First affidavit from Ms Potts

81. The first affidavit of Ms Potts summarised the procedural courses of the respective proceedings taken by the plaintiff.

82. The first of those proceedings involved the public liability claim which was dismissed in the District Court on 16 June 2021, as referred to at paragraph [23] above.

83. The second of those proceedings involved the lodgement of a CTP claim which was lodged with a CARS 5A Application on 11 January 2021. That process ultimately resulted in the Personal Injury Commission issuing a Certificate of Exemption on 27 September 2021 which declared that the plaintiff’s claim was not suitable for assessment according to the provisions of the MAC Act and related guidelines. That certificate was the gateway for the plaintiff to commence Court proceedings.

84. Following Ms Potts’ review of Mr Taouk’s files and her review of the terms of the Certificate of Exemption, she obtained advice from counsel, took instructions from the plaintiff, which led to the present proceedings ultimately being filed in this Court on 12 November 2021.

85. The affidavit of Ms Potts annexed relevant affidavits, other relevant documents, including the statutory declarations and affidavits from Mr Taouk, will be separately summarised.

86. Many of the annexures to Ms Potts’ first affidavit were also annexed to the initiating affidavit of Mr Foley, already reviewed between paragraphs [43] to [49] above, with the exception of the following material:

1. A copy of an affidavit affirmed by Nayven Taouk on 19 February 2021 in the dismissed proceedings: Annexure “A”, pp 4 – 17, with annexed pages 18 – 133 marked in the series “A” to “MM”, which are referred to in the sub-paragraphs 2 – 14 that follow;

2. A copy of a statement of claim filed in the earlier District Court proceedings which initially named Ausgrid, as the only defendant, and the defendant in these proceedings, have been dismissed: Annexure “P”, pp 47 – 55;

3. A copy of a request dated 4 September 2020 for further and better particulars in relation to the dismissed proceedings: Annexure “V”, pp 62 – 65;

4. A copy of an invitation dated 10 September 2020 from the defendant’s present solicitors suggesting the above proceedings must be dismissed: Annexure “W”, p 66;

5. A copy of 18 September 2020 correspondence with Messrs Norton Rose Fulbright, the solicitors for the defendants in the dismissed proceedings, suggesting that defendants have been incorrectly joined in those proceedings: Annexure “X”, pp 67 – 68;

6. A copy of Mr Taouk’s statutory declaration dated 22 December 2020: Annexure “Z”, pp 70 – 75;

7. A copy of a 21 October 2020 reply to the letter from Norton Rose Fulbright providing particulars: Annexure “AA”, pp 76 – 78;

8. A copy of Mr Taouk’s second statutory declaration dated 3 November 2020: Annexure “CC”, pp 82 – 87;

9. An unsigned copy of Mr Taouk’s second statutory declaration undated: Annexure “DD”, pp 88 – 95;

10. A copy of an amended statement of claim in the earlier dismissed proceedings as referred to at paragraph [23] above, which had deleted Ausgrid as a defendant and substituted a partnership of 5 other companies as defendants: Annexure “EE”, pp 96 – 104;

11. A copy of a 2 December 2020 letter from the defendant’s solicitor to the plaintiff’s solicitor rejecting the plaintiff’s claim and the explanations for its late lodgement: Annexure “FF”, p 105;

12. A copy of a 3 December letter from Norton Rose Fulbright to the plaintiff’s solicitor foreshadowing a dismissal application in the dismissed proceedings referred to at paragraph [23] above: Annexure “GG”, pp 106 – 107;

13. A copy of a statement of issues and submissions on behalf of the plaintiff in support of a CARS 5 application for a special assessment, and related correspondence: part of Annexure “HH”, pp 119 – 129;

14. A copy of a 16 February 2021 letter from the defendant’s solicitor to the plaintiff’s solicitor setting out the basis upon which QBE had denied that the plaintiff’s claim falls within the ambit of the MAC Act: Annexure “MM”, pp 130 – 132;

15. A copy of a supplementary affidavit affirmed on 9 March 2021 by Mr Taouk in the dismissed proceedings referred to at paragraph [23] above. That supplementary affidavit was used in the dismissed proceedings in an unsuccessful endeavour to resist the dismissal of those proceedings: part of Annexure, pp 133 – 147.

Second affidavit from Ms Potts

87. For completeness, Ms Potts’ second affidavit annexed some procedural correspondence dated 9 May 2022 relating to the plaintiff’s workers’ compensation claim. That material does not call for further review or consideration.

Evidence of Mr Nayven Taouk

88. When the plaintiff consulted Law Partners on 8 March 2018, Mr Nayven Taouk was the solicitor who was assigned to work on his claim. Thereafter, Mr Taouk continued to have the conduct of the plaintiff’s claim until he left the firm on 2 July 2021. Mr Taouk’s evidence in this application, in the form of statutory declarations, affidavits and oral evidence, was extensive.

89. In total, Mr Taouk prepared two affidavits and two statutory declarations over the course of time of his stewardship of the plaintiff’s claim in an attempt to provide the CTP insurer with an explanation for the plaintiff’s delay in bringing his claim. In chronological order, these were as follows:

1. His first statutory declaration was dated 22 September 2020. It is found buried in the evidence as Annexure “Z” to the affidavit of Ms Potts affirmed on 21 April 2022: pp 70 – 75;

2. His second statutory declaration was dated 4 November 2020. It is found at pp 78 – 83 of Mr Foley’s affidavit dated 17 December 2021;

3. His first affidavit was affirmed on 19 February 2021. A copy of that affidavit is Annexure “A” to the affidavit of Ms Potts affirmed on 21 April 2022;

4. His second affidavit was affirmed on 9 March 2021. It is described as a supplementary affidavit which was filed in the dismissed proceedings. In the evidence in these proceedings it is part of Annexure “MM” to the affidavit of Ms Potts affirmed on 21 April 0222.

90. In the paragraphs that now follow, those declarations and affidavits are examined in the order in which they were created.

Mr Taouk’s first statutory declaration – 22 September 2020

91. Mr Taouk’s statutory declaration dated 22 September 2020 dealt with the following matters:

1. He described the effect of the initial instructions he obtained from the plaintiff whereby the plaintiff explained how his employer had assigned him to attend at the Ausgrid premises, how the vehicle in question was allocated to him, and how the driving incident in which he was injured had occurred: paragraphs 1 – 6;

2. He described the effect of his instructions concerning the plaintiff’s instructions of his report of injury to his employer, how the employer’s workers’ compensation insurer, then CGU Workers’ Compensation Insurance, received the plaintiff’s initial claim for workers’ compensation, he described the plaintiff’s lack of prior knowledge of how workers’ compensation or CTP claims proceeded, and he described how the plaintiff’s initial concerns simply revolved around his state of health, and not compensation: paragraphs 7 – 11;

3. He described in some detail the course of the medical consultations, investigations, and treatment that were undertaken by the plaintiff between 2017 and March 2018, and in particular, the difficulty the plaintiff had experienced in getting the treatment recommended to him by his treating neurosurgeon, approved by the workers’ compensation insurer: paragraphs 12 – 23;

4. He described his first contact with the plaintiff on 8 March 2018 by teleconference, and he identified the workers’ compensation oriented advice that he gave to the plaintiff. Mr Taouk’s description of that advice was in the following terms:

“24.   On 8 March 2018,1 consulted with the Plaintiff for our initial teleconference. 1 took his instructions and provided advice as to his workers compensation entitlements. I explained that his workers compensation statutory entitlements will be his primary course of compensation, as this will provide him with medical expenses, weekly benefits and a permanent impairment claim. I explained that when there is concurrent right under MACA 1999 and WCA 1987, that the workers compensation scheme supersedes the CTP scheme with respect to statutory entitlements.

25.   It was explained to the Plaintiff that he would have no necessary interaction with the CTP scheme unless a cause for a common law claim would arise, that is when he is degree of permanent impairment becomes ascertainable so to consider the limitations of his statutory entitlement’s in workers compensation scheme. At this point there was no need to prepare or file a CTP claim because it would be in essence a redundant exercise and a superfluous expense with only bureaucratic compliance to point to as reason.

26.   Considering the ongoing treatment and incapacity, any disruption to his ongoing receipt of workers compensation entitlements would have been dire. As such the Plaintiff was focused on improving his condition and attempting to return to works with hopes that any compensation obtainable via a common law claim for damages would be not necessary.”

Mr Taouk was cross-examined by Senior Counsel for the defendant on the content of those paragraphs, to seek a different meaning to that relied upon by the plaintiff. This was the subject of submissions which will be addressed in the course of my reasons for considering and determining Issue 4.

5. He described the plaintiff’s surgical and post-surgical course between 16 March 2018 and June 2019 which led to a dispute with the workers’ compensation insurer, then GIO, where a notice had been issued by which the insurer denied liability for payment of the L3-L5 laminectomy and spinal fusion surgery that had been recommended to him for treatment of his back problems: paragraphs 23 – 37;

6. He described how on a review requested by the plaintiff’s solicitor, the insurer relented and agreed to pay for that surgery, which took place on 17 July 2020. The statutory declaration went on to describe the plaintiff’s post-operative treatment: paragraphs 38 – 40;

7. He described how within the period identified in sub-paragraph (6) above, on 2 June 2020, a conference with the plaintiff took place in which the plaintiff was informed that there was a 3-year limitation for CTP claims, which would in his situation, expire on 9 June 2020, and how based on that advice, urgent attention was then given to filling out the required CTP motor accidents claim form, and the expedited investigations that followed: paragraphs 41 – 43;

8. He described how, despite his efforts to complete his factual investigation directed at the defendant Ausgrid to ascertain the correct registration details of the vehicle involved in the incident which caused the plaintiff’s injury (the plaintiff having driven three different Ausgrid vehicles on that day), his enquiries did not receive a response before the expiry of the limitation period on 9 June 2020. He also explained how, in the face of a necessarily incomplete claim form, the plaintiff’s CTP claim could not be progressed, where it appears this was due to a confusion between vehicle registration numbers and differing Ausgrid insurers (Allianz and later QBE), which could not be quickly resolved: paragraphs 44 – 47;

9. Finally, in an endeavour to satisfy the CTP insurer’s need for an explanation of the delay, Mr Taouk at paragraphs 49 – 52 of his statutory declaration dated 22 September 2020, declared as follows:

“49.   As can be appreciated from the above, until the Plaintiff consulted solicitors he was ignorant of his rights, entitlements and statutory obligations relating to workers compensation and CTP personal injury schemes.

50.   Furthermore, the complex disharmony and interactions between concurrent regimes, gave rise for a greater level of prudence by the Plaintiff in deciding which cause of action he is to pursue. Upon the approach of his final invasive surgery, with consideration of the impeding statutory limitation, and gaining a greater understanding as to the reality of his future earning capacity and need for treatment and care, it became apparent at this time that the Plaintiffs most appropriate cause of action would be to pursue common law damages under the CTP scheme.

51.   As a matter of obiter, the issue relating to lack of reporting to Police, this is no more than a notional issue, and bears no practical implication to the course of the claim. The manner in which our client sustained his injury does not warrant contacting the NSW Police who under their own concession are so limited on resources that they issued policy that they would not attend an accident unless the injury results in transport to hospital, broken bone or draws blood. Any denial based on lack of reporting is doomed to fail and will be veraciously disputed.

52.   We kindly request that the above explanation be accepted as full and satisfactory.”

92. The insurer was not impressed and remained unmoved by those explanations, and accordingly, rejected the plaintiff’s late claim.

Mr Taouk’s second statutory declaration – 4 November 2020

93. Mr Taouk’s second statutory declaration (Annexure “L” to Mr Foley’s affidavit, at pp 78 – 83) enclosed the following material:

1. A copy of the plaintiff’s solicitor’s New Client Telephone Enquiry form dated 30 November 2017 showing that the plaintiff sought workers’ compensation advice from his solicitor on that date: Annexure “M”, pp 86 – 87;

1. A copy of Mr Taouk’s conference note of his discussion with the plaintiff on 8 March 2018: Annexure “M”, p 88;

2. A copy of the plaintiff’s solicitor’s costs disclosure and client service agreement dated 9 March 2018, signed by the plaintiff relating specifically to a workers’ compensation claim: Annexure “M”, pp 89 – 92;

3. A copy of an undated brief to counsel, and a copy of counsel’s initial advice dated 9 April 2020 in response, flagging the need to commence proceedings on behalf of the plaintiff, but noting a degree of uncertainty as to the proposed defendant: Annexure “M”, pp 93 – 99;

4. A copy of email correspondence dated 1 May 2020 and 5 May 2020 addressed to the plaintiff seeking further factual information as requested by counsel, flagging the need for a further conference: Annexure “M”, pp 100 – 102;

5. A copy of a conference file note in emailed form dated 6 May 2020 relating to instructions on relevant factual matters: Annexure “M”, pp 103 – 106;

6. A copy of counsel’s advice dated 2 June 2020 advising of the imminent need to commence MAC Act proceedings: Annexure “M”, pp 107 – 108;

7. A copy of the plaintiff’s solicitor’s request to Ausgrid for preliminary discovery pursuant to UCPR r 5.2, r 5.3 and r 23.8, relating to the vehicle in question in the proceedings: Annexure “M”, pp 109 – 111;

8. A copy of Ausgrid’s reply dated 4 June 2020 to the preceding request for preliminary discovery seeking information about the plaintiff and the incident: Annexure “M”, p 112;

9. Copies of correspondence dated 5 June 2020 from the plaintiff’s solicitor to Ausgrid enclosing a copy of the preceding letter: Annexure “M”, p 114;

10. A copy email dated 12 June 2020 from Allianz CTP claims department to Ausgrid, copied to the plaintiff’s solicitor, with related documents dated 9 June 2020: Annexure “M”, p 115;

11. A copy email from the plaintiff’s solicitor to Allianz CTP claims department enclosing a claim form and an attached medical certificate from the plaintiff’s treating general practitioner, the delayed receipt of which was stated to have been the cause of the most recent delay in forwarding claims documentation: Annexure “M”, p 116;

12. A copy email dated 3 July 2020 from Allianz to the plaintiff’s solicitor advising that Allianz had incorrectly recorded the vehicle registration details, and advising that QBE was in fact the correct CTP insurer, and not Allianz, as was previously thought to have been the case: Annexure “M”, p 117;

13. A copy email dated 3 July 2020 from the plaintiff’s solicitor to QBE enclosing a copy of the plaintiff’s claim form and explanatory correspondence from Allianz: Annexure “M”, p 118.

Mr Taouk’s first affidavit – 19 February 2021

94. Mr Taouk’s first affidavit, affirmed 19 February 2021, comprised 88 paragraphs, as follows:

1. He described the background facts concerning the plaintiff’s injury on 9 June 2017, the plaintiff’s report of the accident to his employer, the initiation of the workers’ compensation claim by the employer, and the plaintiff’s reported lack of prior knowledge of CTP claims: paragraphs 1 – 10;

2. He described in summary form the plaintiff’s reported symptoms, the course of his subsequent medical consultations and treatment, the referral of the plaintiff for specialist neurosurgical treatment, and the surgical recommendation for operative treatment: paragraphs 11 – 22;

3. He described how the plaintiff contacted him on 6 March 2018, to seek advice on his workers’ compensation rights, and the plaintiff’s retention of Law Partners to pursue a workers’ compensation claim, and he stated that at no time prior to 8 April 2020 did he inform the plaintiff that he might have a CTP claim for damages: paragraphs 23 – 31;

4. He stated that in the interim, between April 2018 and August 2019, the plaintiff was pursuing consultations and treatment for his back problems, in the context of a dispute with the workers’ compensation insurer over whether it would meet the cost of his proposed surgical treatment, which it ultimately did approve: paragraphs 32 – 51;

5. He described how counsel had advised on 9 April 2020 and 6 May 2020 of the possibility of bringing a claim for damages under the CL Act: paragraphs 32, 46 – 48;

6. He identified the date of 2 June 2020 as the first date on which counsel advised of the availability of a CTP cause of action which required that proceedings be instituted by 9 June 2020: paragraphs 53 – 54;

7. He described his attempts from 4 June 2020 to 12 June 2020, to obtain from Ausgrid the correct vehicle registration number so that a CTP claim could be lodged: paragraphs 55 – 61;

8. He identified the 12 June 2020 email from the CTP insurer Allianz confirming the defendant’s vehicle registration number and inviting the receipt of a duly completed personal injury claim form: Annexure “A” to the affidavit of Mr Taouk, at page 56, as referred to in paragraph 61 of his affidavit;

9. He identified that it was not until 3 July 2020 that Allianz advised there had been an error in Ausgrid’s identification of the vehicle in question, where Allianz then advised that given the correct registration details were by then known, the plaintiff’s claim should be submitted to a different CTP insurer, QBE, the insurer which is presently opposing the plaintiff’s right to proceed: paragraphs 62 – 65;

10. He identified the continuous correspondence dated 3 July 2020 from Ausgrid’s present solicitors, McInnes Wilson disputing the plaintiff’s entitlement to pursue his claim: paragraphs 66 – 67;

11. The balance of his affidavit dealt with updates on the plaintiff’s medical treatment, and the disputations correspondence between Law Partners and McInnes Wilson on whether or not the plaintiff had provided a full and satisfactory explanation for the delay in bringing his claim, and the subsequent course of the other proceedings that were ultimately dismissed at a later date, namely 16 June 2021: paragraphs 68 – 88.

Mr Taouk’s second affidavit – 19 March 2021

95. Mr Taouk’s second affidavit, dated 19 March 2021, described the plaintiff’s history of medical assessments and treatment from the time of his 9 June 2017 injury until Mr Taouk’s first teleconference with the plaintiff on 8 March 2018, in the context of Law Partners having opened a file in relation to the plaintiff for a workers’ compensation claim.

96. On 8 March 2018, following the earlier teleconference between the plaintiff and Mr Taouk, in a second teleconference, arrangements were made for the plaintiff to sign relevant documents by which he agreed to engage and retain Law Partners to act for him. The engagement of Law Partners formally commenced on 9 March 2018.

97. On 20 March 2018, Law Partners registered the file relating to the plaintiff’s claim in the firm’s internal records as a workers’ compensation claim.

98. In that context, in the preceding days, the plaintiff had undergone significant, albeit unsuccessful spinal surgery where he was experiencing significant pain. Clearly, at that time, his medical condition was not stable, and a definitive exploration of his legal rights was not a priority for him at that time.

99. On 27 March 2018, Mr Taouk took instructions from the plaintiff to pursue a claim for his entitlements pursuant to s 66 of the WC Act to seek a lump sum payment for permanent impairment. Mr Taouk advised the plaintiff that he would have to wait a minimum of 6 months before he could be assessed by a medical examiner to determine whether his condition had reached the stage of maximum medical improvement for a workers’ compensation assessment to take place.

100. Mr Taouk said that at that time, he did not advise the plaintiff of any rights or entitlements he might have had for pursuing a CTP claim.

101. As at April 2020, Mr Taouk was conscious of the imminent expiry on 9 June 2020, of a 3-year limitation period for filing CTP damages proceedings. Accordingly, on 8 April 2020 he sent a brief to counsel to advise as to the most appropriate course of action the plaintiff could pursue having regard to matters of quantification.

Oral evidence of Mr Taouk

102. Mr Taouk was required for cross-examination on the content of his statutory declarations and affidavits. Understandably, Mr Taouk’s evidence was based on a review of his file notes and a reliance on his best recollection of the underlying conversations and actions he took at the time he worked on the plaintiff’s claim and the related file.

103. In cross-examination, Mr Taouk was asked whether, in his early advice to the plaintiff he had turned his mind to whether the plaintiff’s accident might have involved a defects case that could be brought under the MAC Act until counsel raised that possibility with him.

104. Mr Taouk confirmed that between March 2018 and May 2020, in that context, as the plaintiff’s workers’ compensation solicitor, it did not occur to him that the plaintiff could have a motor accident claim. He also confirmed that in that time he was unaware of the decision of the NSW Court of Appeal in Galea v Bagtrans Pty Limited [2010] NSWCA 350, until counsel advised him of the effect of that decision.

105. Mr Taouk confirmed that when he had first spoken to the plaintiff he had focussed his attention on the fact that the plaintiff was injured in the course of his employment because the truck he was driving had an uncushioned driver’s seat. He said that in those circumstances, the possibility of the plaintiff making a MAC Act claim did not come to his mind. He confirmed, with the benefit of hindsight, that he would have advised differently now that he has become aware of the decision in Galea v Bagtrans Pty Limited [2010] NSWCA 350.

106. Those events occurred at a time when Mr Taouk had only commenced his employment with Law Partners 4 months earlier, where he was employed as a workers’ compensation solicitor, with an allocated caseload of 200 active files.

107. Mr Taouk confirmed that at the time he prepared his 22 September 2020 statutory declaration, he was aware he was dealing with the plaintiff’s by then very late CTP claim, and therefore a full and satisfactory explanation for the delay in making that claim was required. This included an explanation for not making a claim within 6 months of the occurrence of the underlying incident.

108. Mr Taouk confirmed that although, on 2 June 2020, he had received counsel’s advice to the effect that the plaintiff may have an available MAC Act claim, and this was just 7 days away from the expiry of the applicable 3 year limitation period, he was unable to take the step of filing a statement of claim for the plaintiff because as at 2 June 2020 there had been a mix-up by Ausgrid that had resulted in him being provided with an incorrect vehicle registration number.

109. Despite realising this, and despite his urgent attempts to obtain the correct vehicle registration number from Ausgrid, the correct information was only provided by or on behalf of Ausgrid after the expiry of the 3-year limitation period.

110. Mr Taouk confirmed that in those events, the mix-up due to the misinformation as to the vehicle registration number had been corrected on 3 July 2020. At that time, the correct insurer, QBE instead of Allianz with whom he had been dealing, had been identified and was notified of the plaintiff’s claim. He stated, and I accept, this element of delay occurred despite his best efforts to urgently overcome the problem that was created by or on behalf of Ausgrid.

111. Mr Taouk confirmed his understanding that, in compliance with s 72(1) of the MAC Act, QBE ought to have been notified of the plaintiff’s claim by lodgement before the expiry of 6 months following the accident, that is, by 9 December 2017.

112. Mr Taouk was taken to paragraphs 24 and 25 of his 22 September 2020 statutory declaration where he had deposed to the effect that he had explained to the plaintiff there was an element of concurrency of rights under the MAC Act regime and the workers’ compensation regime in that pending the finalisation of a CTP claim, workers’ compensation rights and benefit payments would continue. This was in the context that he was at that time unaware of the effect of the decision in Galea v Bagtrans Pty Limited [2010] NSWCA 350.

113. Mr Taouk explained that the plaintiff’s file was assigned to him to deal with a workers’ compensation claim and he proceeded to act on it accordingly.

114. Mr Taouk stated that his comprehensive contemporaneous file note confirmed that his involvement in the plaintiff’s claim was focussed on the plaintiff’s workers’ compensation rights. He said that his advice therefore did not extend to him dealing with a claim under the CTP scheme of the MAC Act. In that context he candidly conceded that, in hindsight, he had simply failed to identify an available cause of action under the CTP scheme (T29.40), but is now better informed on what advice ought to have been given at that time: Galea v Bagtrans Pty Limited [2010] NSWCA 350.

Conclusions concerning Mr Taouk’s evidence

115. I am satisfied Mr Taouk gave his evidence truthfully to the best of his recollection, aided by the material he had created contemporaneously.

116. Understandably, the cross-examiner sought to undermine Mr Taouk’s explanation to the effect that he did not give CTP advice to the plaintiff: T29.42 – T30.26. In my view, the proposition put to Mr Taouk in cross-examination to challenge his explanation of the events involved a conflation that did not have the intended undermining effect.

117. Understandably, the cross-examiner sought to highlight an apparent discrepancy between Mr Taouk’s file note which made no reference to CTP advice (which was consistent with his account that no such advice was given), and paragraphs 24 and 25 of his statutory declaration which made reference to CTP advice.

118. In my view, as Mr Taouk confirmed, when questioned about CTP advice (at T30.14), with understandable defensiveness, that at the time he spoke to the plaintiff, he thought there was no need to prepare and file a CTP claim. Properly understood, there was no relevant tension between Mr Taouk’s statutory declaration and his file note. In the unfortunately confusing circumstances that had evolved, he was justified in placing a defensive hindsight gloss in his commentary. It was not materially inconsistent with his file note. I accept his explanation to that effect.

Issue 1 – Non-report of accident to the police

119. The importance and the relevance of the issue of whether or not the plaintiff had reported his accident to the police as required by s 70(1) of the MAC Act, receded during the course of the hearing of these applications.

120. On the evidence it is clear, and I find, that the plaintiff had no understanding to the effect that he needed to report the incident in question to the Police in order to proceed with a claim for CTP motor accident damages.

121. In my view, in the plaintiff’s circumstances, objectively, that was a reasonable position for him to take at that time as no other vehicle was involved in the incident, and a report of the incident to Police would seem to have been of limited, if not doubtful, utility. Understandably, later when the plaintiff did try to report the incident to the Police, as was suggested by his solicitor, no report was taken from him due to the passage of time.

122. Consequently, for the purposes of the present applications, and pragmatically, the defendant no longer argues the point which it had initially raised, namely that the non-report of the accident to Police is a disentitling factor. Accordingly, this issue does not require any further consideration.

Issue 2 – Absence of a notice of claim within 6 months of the accident

123. The fact that the plaintiff did not lodge a notice of claim within 6 months of his injury as required by s 72(1) of the MAC Act is entirely understandable in this case, in light of his evidence, which I accept, that not only was he unaware of a requirement to do so within that time, but he did not receive earlier and timely advice to the effect that he must do so. Simply put, this failure was not his fault. Accordingly, such failure should not be taken to be a disentitling factor in the consideration of his application for leave to proceed on the facts outlined in these reasons.

Issue 3 – Quantum threshold

124. During the course of argument the applicant defendant conceded that the quantum threshold element to be satisfied as provided by s 109(2) of the MAC Act was no longer a contested or disentitling issue requiring the plaintiff to satisfy, for the purpose of this interlocutory application. This was an appropriate concession given the enormity of the amount of workers’ compensation payments the plaintiff has received to date, where those payments would be required to be factored into any damages award made under the MAC Act. Accordingly, this issue no longer requires consideration.

Issue 4 – Explanation for delay in commencing the proceedings

125. The plaintiff’s submissions properly conceded the obvious lateness of his claim. That conclusion was irresistible.

126. Those submissions also conceded the failure of the plaintiff’s former solicitor to recognise at an earlier and appropriately timely stage, that the circumstances of the plaintiff’s injury came within the ambit and scope of the scheme of the MAC Act. The plaintiff’s submissions also conceded that there had been consequential failures to advise and to act accordingly. However, of themselves, those failures do not operate as a bar to the plaintiff proceeding with his claim even at this late stage.

127. The fact that the plaintiff’s legal representatives made those concessions does not necessarily mean that the plaintiff’s application for leave to proceed should fail, or that the plaintiff should seek to pursue an alternative consequential remedy from his solicitors. That is especially so where the terms of s 109(3)(a) of the MAC Act provide for the possibility of a grant of leave to proceed, which if granted, overcomes such obstacles, and renders otiose the need to consider pursuit of an alternative remedy.

128. In that regard, on behalf of the plaintiff, it was in effect submitted that objectively, in the described circumstances, a hypothetical reasonable person in the position of the plaintiff would have done what the plaintiff had done, and would have followed the advice of his solicitor in the terms that such advice was given, that is, without the consideration of a CTP claim being available. That is so, notwithstanding that initial advice was incorrect. This is especially so because beforehand, he had never made a personal injury claim of any kind, and had no detailed knowledge of the procedural or time requirements for making such claims under the scheme of the MAC Act: Smith v Grant [2006] NSWCA 244, at [64].

129. In contrast, on behalf of the defendant, drawing upon a series of decided cases for support, it was suggested that the plaintiff’s proffered explanations were neither full nor satisfactory, and it appeared, as was previously asserted by the defendant’s CTP insurer, that the plaintiff had deliberately allowed the limitation period to lapse, and for a period “did nothing”, before making his claim, an assertion which the plaintiff disputed and which I do not accept.

Legal principles as extracted from cases decided on appeal

130. At this point, to provide context for the required analysis, it is appropriate that I undertake a review of an array of relevant authorities concerning the requirements of a full and satisfactory explanation.

131. The onus is on a claimant to provide a full and satisfactory explanation for the delay incurred in bringing a claim: Eades v Gunestepe [2012] NSWCA 204, at [52].

132. Whilst generally, the many decided cases explaining the operation of the discretionary aspect of the MAC Act scheme offer guidance, ultimately, where the Court is called upon to exercise a discretion, each case must be decided on its own facts: Ellis v Reko Pty Limited [2010] NSWCA 319, at [18]; s 58(2) of the CP Act.

130. Since the enactment of the MAC Act, there have been many cases that have been considered and decided on appeal that deal with what should be or should not have been acceptably taken to be a full and satisfactory explanation regarding delay for the purpose of applying s 66(2), s 72, s 73 and s 109(3)(a) of the MAC Act. In my view, without intending to set out an exhaustive analysis of the cases, the following summary is sufficiently representative of the substantive effect of them.

131. An explanation that is “full and satisfactory” requires that two elements be addressed. First, an explanation which has that characteristic must include a full account of the conduct, including the actions, knowledge, and belief of the claimant, from the date of the injury until “the date of providing the explanation”. Secondly, the explanation must be such that a hypothetical reasonable person in the position of the claimant “would have been justified in experiencing the same delay”. The determination of whether there has been a full and satisfactory explanation requires the making of an evaluative judgment to assess, by reference to the objective standard, and taking into account the claimant's position, to determine whether the delay that in fact occurred was reasonably justifiable in the circumstances: Karambelas v Zaknic (No 2) [2014] NSWCA 433, at [16]-[17].

132. In approaching the task of providing a full and satisfactory explanation, the claimant is not entitled to selectively pick and choose which component elements that comprise the delay should be addressed in the explanation to be provided. The explanation must provide a full account of the events that transpired during the relevant periods of delay. Once that explanation has been provided, it is for the Court to decide whether the explanation is satisfactory in the sense of satisfactorily explaining the delay: Mancini v Thompson [2002] NSWCA 38, at [46]-[47]; Djakovic v Perez [2015] NSWCA 174, at [15]-[19].

133. The explanation for the delay must in the first instance be provided to the insurer: s 73(1) of the MAC Act. At that point it is always open to an insurer, if it thinks fit, to accept the explanation. If the insurer had in this case accepted the explanation, this would have readily facilitated a grant of leave. However, that did not occur here, as the insurer held the somewhat speculative belief, based on inference rather than fact, that the plaintiff had deliberately allowed the limitation period to lapse. In my view that inference was unfounded, and was spuriously skewed towards the insurer’s interests without a duly balanced consideration of the plaintiff’s situation.

134. A proffered explanation may be “full” without seeking to explore the blameworthiness or otherwise of a claimant’s solicitor with respect to the solicitor’s role in the events that have led to a need to provide the explanation concerning the untimeliness of a claim. Delay on the part of a solicitor does not necessarily bar the claim: Smith v Grant [2006] NSWCA 244, at [33]-[36] [80] and [83].

135. In that latter regard, it is necessary to observe the caution against unwarranted speculation or inferences against legal practitioners that assume deficiencies in legal representation: Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53, at [13]. An approach along those lines is a distraction from the need to consider the jurisdiction conferred by s 109(3) of the MAC Act.

136. Whilst the determination of whether the explanation provided is full and satisfactory (and therefore not selective) is a decision to be made objectively. The degree of objectivity might vary according to varying factual circumstances and the particular characteristics of the claimant. Where a solicitor is required to provide an explanation for the incurred delay, the burden of providing the explanation for the delay is not as broad or as onerous as the burden on the claimant to provide an explanation. The question is not whether things could have been done more quickly, but rather, whether, on an examination of the circumstances, measured objectively, a hypothetical reasonable person in the position of the claimant would have been justified in experiencing the same delay. In that regard, although the whole period needs to be addressed in the explanation, it is not necessary to recite all of the minutiae as to what took place over the course of the time in question: Walker v Howard [2009] NSWCA 408, at [53]-[56], [64], [73], [104], [108], [134].

137. In considering whether or not to grant leave to enable a claimant to bring or maintain proceedings, in cases where there was a deliberate decision to allow a statutory limitation period to expire, that fact, if established, would operate powerfully against a grant of leave. It is therefore important that an applicant for leave provide a reasonable explanation for the delay, including negativing an absence of diligence or carelessness on the part of the applicant: Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2001] NSWCA 442, at [89], [91].

138. With regard to considering whether a limitation period was deliberately allowed to lapse, there is a critical distinction to be recognised between the circumstance of a claimant making a fully informed tactical decision not to pursue a claim, or even being careless about one’s right to claim, and the very different circumstance where a late claim arose due to a lack of knowledge or understanding on the part of the claimant, where the claimant relied upon professional advice to pursue an alternative statutory claim: Bluescope Steel Pty Ltd v De Caires [2002] NSWCA 43, at [29].

139. The principles extracted from those cases will be applied in the consideration that now follows.

A reasonable person in the position of the plaintiff: s 66(2) of the MAC Act

143. Central to a consideration of whether the nature of the plaintiff’s explanation for the delay in his case is full and satisfactory is the identification of some relevant characteristics of a reasonable person in the position of the plaintiff during the period of delay that requires explanation in this case.

144. My impression of the evidence suggests that a reasonable person in the position of the plaintiff would have had the following characteristics.

145. Such a person with the limited education of the plaintiff, would not have any specific or reliable understanding of the procedural requirements and time limits for the making of claims for compensation for personal injury pursuant to the workers’ compensation and motor accidents’ compensation schemes.

146. Such a person, in 2017, after realising the seriousness of an injury sustained in the course of employment when operating a motor vehicle, where no other vehicle was involved in the incident, would have sought timely guidance and reassurance from a legal practitioner to clarify his workers’ compensation rights. He would have consulted a law firm that professed expertise in that area of practise. In doing so, he would have most likely ventilated his issues of concern over the availability to him of workers’ compensation, and if he had confidence in the guidance that was given to him, as was the case here, he would have retained that firm to represent him in any dispute that might arise concerning his rights. Absent the involvement of another vehicle in the incident which caused him injury, he would most probably not have considered that he had a right to make a CTP claim unless advised that such a claim might be available to him.

147. Absent any notice or concern to the contrary as to the substance of the advice given to him by the lawyers whom he had retained, such a person would have reposed confidence in his legal representation. He would have acted in accordance with advice so given, and he would have taken steps to re-consult his retained lawyers if a specific problem had arisen which required legal representations to be made on his behalf to any insurer denying him entitlement to legal redress for injuries that he considered to be the basis for a legitimate claim for compensation.

148. A reasonable person in the position of the plaintiff, suffering the debilitating effects of a back injury of the kind suffered by the plaintiff, where the workers’ compensation insurer paying him his workers’ compensation payments was refusing to pay for an L3 - L5 laminectomy and spinal fusion procedure, recommended to him by his treating Professor of Neurosurgery, to mitigate his damage, would have re-consulted his workers’ compensation solicitor to seek to protect his interests in that regard by making representations to the insurer to change its intransigent position. Such a person would have gained reinforced confidence in his lawyers where they had succeeded in shifting the workers’ compensation insurer from its previously held position of refusal to pay for the mitigatory surgery he needed.

149. A reasonable person in the position of the plaintiff would most probably have had other concurrent distracting issues in his life that would also have occupied his focus and attention. Examples of such distractions, as affected the plaintiff, were his money worries at having exhausted his own financial resources due to the financial cost of his son’s need for treatment for a serious life-threatening illness, his own concerns and anxieties not only over his son’s illness, but also due to his own debilitated state of health and inability to work due to the subject injury.

150. Such a person would, most likely, not have paused to question or second-guess, or carry out his own research, to check on the correctness or not of the compensation advice given to him by his lawyers, where that advice, on its face, seemed to be reasonable, and not doubtful as to its content.

151. Such a person would continue to have confidence in his retained lawyers until he became aware of a possible need to change course on any new aspect of legal advice that might have emerged, such as suing the present defendant, but on an incorrectly conceived and formulated cause of action, such as ultimately occurred in the dismissal of the first legal case that he brought in respect of the injury he sustained on 9 June 2017.

152. A reasonable person in the position of the plaintiff, until 2 June 2020, and in the days leading to that date, would not have known that there was a need to report circumstances of his injury sustained on 9 June 2017 to Police within a reasonable period of time. Nor would he have known that he was required to have reported the incident in question to the CTP insurer or to the defendant within 6 months of the occurrence of the injury.

153. Whilst as at 2 June 2020, a reasonable person in the position of the plaintiff might by that time have known that a 3-year limitation period for filing a CTP claim for damages was about to expire on 9 June 2020, such a person, recognising that he was in the throes of a technical legal dispute over his entitlement to make a late claim at that point, being personally powerless to resolve the problem at short notice, he most probably would have left the handling and the resolution of those disputed circumstances to his retained lawyers. This would have been especially so where, crucially, he lacked the requisite knowledge of the particular registration number of the vehicle he was driving at the time of his injury, where from that point, such knowledge was the key to the pursuit of a successful CTP claim for damages.

154. At that point, a reasonable person in the position of the plaintiff would most probably have left the pursuit and the resolution of such problems, and any related dealings with the CTP insurer, to be managed by his lawyers, as the plaintiff in fact did in this case. As such, a reasonable person in the position of the plaintiff would have experienced the delays that the plaintiff has encountered in this case.

The plaintiff’s particular explanations for delay

155. The approach taken by the plaintiff’s representatives was to provide comprehensive evidence of all elements of the delays that required a full and satisfactory explanation.

156. The plaintiff’s explanations, as found at paragraphs [56] to [58] above (being his statutory declaration to the insurer on 4 November 2020), and at paragraphs [59] to [73] above (being affidavit sworn on 11 March 2022), and his oral evidence (summarised at paragraphs [74] to [79] above), stand to be evaluated in accordance with the identified statutory provisions and previously decided cases which explain the workings of those provisions.

157. Relevantly, in this case, the plaintiff is required to explain (1), why he did not report his injury to the Police, as required by s 70(1) of the MAC Act; (2), why he did not make his claim by notifying the insurer or the defendant of it within 6 months of his injury, as required by s 72(1) of the MAC Act; and (3), why he did not bring his claim within 3 years of his injury, thereby requiring a grant of leave pursuant to s 109(3)(a) of the MAC Act.

(1) Delay of report to Police

158. As explained at paragraphs [119] to [122] above, the failure to comply with s 70(1) of the MAC Act requiring the need to report a motor accident to the Police, the plaintiff’s explanation is quite simple, and not complex. He simply did not know he had to do so. As is identified at paragraph [122] above, the defendant no longer regards this element of delay as requiring any further explanation. Its remaining relevance is that this particular element of delay began the continuum of further delay, as explained below.

(2) Delay of not reporting to insurer or defendant within 6 months

159. As explained at paragraphs [125] to [129] above, the failure to comply with s 72(1) of the MAC Act requiring notice of a claim to be given to the insurer or the proposed defendant within 6 months of the injury, the plaintiff’s explanation is also quite simple in that the plaintiff did not know that there was a statutory requirement that he notify the insurer or the defendant of his injury within 6 months of the occurrence. That element of delay then continued until after the 3-year limitation period had expired, when the plaintiff was given formal legal advice as to this particular requirement.

(3) Delay of 3 years in filing the claim

160. As to the plaintiff’s failure to bring his claim within 3 years of his injury as required by s 109(1) of the MAC Act, his explanation is that he was unaware of this particular requirement until his solicitor advised him of it, by which time his claim was already out of time.

161. The context was that the plaintiff believed it was his workers’ compensation rights that were being appropriately addressed, where in the advice he was initially given, there had been no initial mention of his CTP rights.

162. I do not accept the defendant’s asserted positions to the effect that the plaintiff had knowingly allowed the limitation period to expire (as referenced at paragraph [46] above), or that he “did nothing” (as referenced at paragraph [50] above).

163. The insurer’s positions in that regard involve first, an oversimplified view of the events that transpired, and secondly, in the case of the latter assertions, a false premise.

164. Whilst it is true that by early June 2020 the plaintiff was aware of the looming expiration of the 3-year time limit, it is a distorted oversimplification to assert he knowingly allowed that limitation period to expire when he was powerless to act to immediately change the problem. In fact, at that time, the management of that issue was in the hands of his lawyers, who were frustrated by the circumstances of the timing in not being able to ascertain the correct vehicle registration number so that the correct insurer could have been put on notice of the claim, even though the identity of the defendant had been correctly ascertained. In my assessment, an assertion that in those circumstances the plaintiff knowingly allowed a limitation period to expire is based on a misconception.

165. Similarly, it is incorrect to assert, as the insurer has done, that the plaintiff “did nothing”, where he took the reasonable steps of leaving the correct management of his claim to his lawyers in circumstances where he had no notice until the eleventh hour that things had gone awry procedurally.

166. It is plain from the plaintiff’s account of events as summarised in the body of these reasons that, on 2 June 2020, just 7 days before the expiry of the 3-year limitation period, he was unaware of his entitlement to bring a CTP claim and he was unaware of his obligations to comply with the stringent statutory obligations required of a claimant for making either a workers’ compensation claim or a CTP claim. In that regard, he was preoccupied with the need to attend to his pressing health issues and he was entirely reliant upon his solicitor for advice as to how to proceed on those matters under the appropriate scheme.

167. It was in those circumstances that he became aware of the possibility of making a CTP scheme claim just days before the expiry of the 3-year limitation period. In that time, he was powerless to act to preserve his rights due to a lack of knowledge of the actual registration number of the vehicle which was involved in his injury.

168. It is of some significance that the confusion and delay which then followed was contributed to by both the defendant and the defendant’s insurer where the wrong vehicle was identified, and it took weeks to clarify that confusion. There was nothing that the plaintiff could have done in that period of confusion to speed up the process in order to file his proceedings before the expiry of 3 years.

169. It is also of some significance that the CTP insurer knew of the prevailing circumstances within those explanations when the plaintiff’s claim was rejected.

The former solicitor’s explanations

170. The plaintiff’s own explanations as outlined in the preceding paragraphs were augmented by the explanations provided by his former solicitor Mr Taouk, as identified at paragraphs [88] to [118] above, particularly between paragraphs [108] to [112], which comprised Mr Taouk’s first statutory declaration dated 22 September 2020, his second statutory declaration dated 4 November 2020, his first affidavit affirmed on 19 February 2021, his second affidavit affirmed on 9 March 2021, and his oral evidence given on 12 May 2022.

171. As outlined at paragraphs [71] to [72] above, the plaintiff only became aware of a need to report the incident in question to Police after Mr Taouk advised him to do so, and only became aware of the 3-year limitation problem on 2 June 2020, as explained by Mr Taouk’s evidence summarised at paragraphs [108] to [112] above.

172. There are no relevant or disentitling inconsistencies between the evidence of the plaintiff and Mr Taouk.

The current solicitor’s explanations

173. The plaintiff’s current solicitor, Ms Potts, who assumed the carriage of the plaintiff’s matter from Mr Taouk, also augmented the explanations of the plaintiff and his former solicitor. Her affidavit evidence, of 21 April 2022 and 10 May 2022, is summarised at paragraphs [80] to [87] above. The evidence of Ms Potts serves to complete the explanatory picture as to the fullness of the explanations for delay encountered in this claim. No issues arise for analysis from within her evidence.

Are the explanations full?

174. In my assessment of the evidence, reviewed and summarised at paragraphs [74] to [79] above, the plaintiff’s explanations fully canvas his knowledge, beliefs, conduct and actions in the period between when he was injured up until the time he made his application for leave to proceed. His explanations were corroborated and factually supported by the evidence of his present solicitor and his former solicitor. His explanation was comprehensively full in its particularity. I find his explanation, which relevantly includes his conduct, actions, knowledge and beliefs, to be “full” within the meaning of s 66(2), s 70(2), s 73(1) and (4), and s 109(3)(a) of the MAC Act.

Are the explanations satisfactory?

175. In my assessment of the plaintiff’s explanation, as augmented by the evidence of Mr Taouk and Ms Potts, on the required objective view, I consider that a hypothetical person in the position of the plaintiff as referenced at paragraphs [143] to [154] would have been justified in experiencing the same delay that was experienced by the plaintiff in bringing his claim.

176. First the initial failure to report the incident which caused his injury to the Police as required by s 70(1) of the MAC Act is no longer an issue, as explained at paragraphs [119] to [122] above.

177. Similarly, the initial failure to report the incident to the insurer for the defendant as required by s 72(1) of the MAC Act, is no longer an issue, as explained at paragraph [123] above.

178. Thirdly, the plaintiff did not knowingly allow the 3-year limitation period to expire in the sense of doing nothing. He left the matter in the hands of his lawyers who were initially confounded by the complexity of the pathway for making the correct claim. That factor does not operate as a bar to a grant of leave to enable the plaintiff to proceed as the circumstances of the delays incurred have been fully and satisfactorily explained.

Conclusion as to the nature of the explanations

179. I do not accept as reasonable the position taken by the CTP insurer seeking an inference that the plaintiff allowed his claim to become out of time. That inference is skewed, unbalanced and is entirely speculative, without any reasonable foundation in the evidence that was before the insurer when the plaintiff’s explanations were rejected. There is no additional evidence adduced in these proceedings which suggests to the contrary.

180. Whilst the explanations of the plaintiff and those of his solicitor did not satisfy the CTP insurer, which has maintained its resistance to the plaintiff proceeding with his late claim, on my assessment of the factual circumstances, which were adequately put before the insurer, notwithstanding that resistance, I consider the plaintiff is entitled to proceed with his claim as a reasonable person in his position would have been justified in experiencing the delay he has experienced in making his claim.

181. In balancing the competing positions of the parties, absent evidence of material prejudice, I consider that the dictates of justice require acceptance of the submissions made on behalf of the plaintiff to the effect that he should be granted leave to proceed, with the result that the defendant’s motions seeking dismissal of the proceedings should be dismissed.

182. The plaintiff has provided a full and satisfactory explanation for the delay in making his claim. This justifies an order for the grant of leave that he seeks pursuant to s 109(3)(a) of the MAC Act.

Disposition

183. The defendant’s notice of motion seeking dismissal of the plaintiff’s proceedings should be dismissed, and at the same time, the plaintiff’s application for leave to proceed, albeit out of time, should be granted.

184. Following the making of formal orders to that effect, including as to costs, having regard to the considerable delay the plaintiff has encountered in reaching this procedural point in his pursuit of compensation, and having regard to the requirements of s 56 of the CP Act, for the Court to facilitate the just, quick and cheap resolution of the real issues in dispute, I propose to make appropriately structured case management orders, including an order for an early mediation to take place pursuant to s 26 of that Act.

Costs

185. In modern litigation conducted under the regime of the CP Act, there are no fixed or settled rules for making orders for costs on applications requiring the exercise of discretion: s 98(1) of the CP Act. The exercise of a discretion to award costs must be dependent upon the facts of the particular case: Holt v Wynter [2000] NSWCA 895, at [104].

186. In my view, as the plaintiff has succeeded in obtaining an order for the dismissal of the defendant’s application, he should have an order that the defendant should pay his costs of resisting that application on the ordinary basis, noting that the costs of resisting the defendant’s application did not involve materially different elements to his own application for leave to proceed, as was permitted by an order made pursuant to s 14 of the CP Act.

Orders

187. I make the following orders:

1. Pursuant to s 14 of the CP Act, I dispense with the requirement for the plaintiff to file a notice of motion pursuant to s 109 of the MAC Act to seek leave to proceed with the present proceedings, notwithstanding that the proceedings have been filed out of time;

2. The defendant’s notice of motion filed on 17 December 2021 is dismissed;

3. The defendant is to pay the costs of the plaintiff in respect of the dismissed motion;

4. Pursuant to s 109(3)(a) of the MAC Act, leave is granted to the plaintiff, nunc pro tunc, extending the time for the filing of these proceedings to 12 November 2021, thereby regularising the proceedings which have already been commenced;

5. No orders as to the costs of the plaintiff’s application for leave to proceed pursuant to s 109(3)(a) of the MAC Act;

6. The exhibits may be returned;

7. Liberty to apply on 7 days’ notice if further or other orders are required.

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Decision last updated: 15 August 2022