Dijakovic v Perez

Case •

[2015] NSWCA 174

•

29 June 2015

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Dijakovic v Perez [2015] NSWCA 174
Hearing dates:30 April 2015
Decision date: 29 June 2015
Before: Gleeson JA at [1];
Leeming JA at [129];
McCallum J at [134]
Decision:

(1)Leave to appeal be granted.
(2)The appeal be allowed.
(3)The orders made by the District Court on 30 May 2014 be set aside.
(4)In lieu thereof:
(a)grant leave to the plaintiff pursuant to s 109 of the Motor Accidents Compensation Act 1999 (NSW) to commence the proceedings;
(b)the plaintiff’s cost of the notice of motion filed 14 March 2014 be the plaintiff’s costs in the proceedings.
(5)The respondent to pay the applicant’s/appellant’s costs of the application for leave to appeal and the appeal.

Catchwords: MOTOR ACCIDENTS COMPENSATION – failure to commence proceedings for damages within three years of accident – requirement of leave – Motor Accidents Compensation Act 1999 (NSW), s 66(2) and s 109(3) – whether evidence established a “full and satisfactory” explanation for the delay – whether monetary threshold likely to be met – primary judge erred in concluding otherwise
Legislation Cited: Motor Accidents Act 1988 (NSW) s 43A
Motor Accidents Compensation Act 1999 (NSW) s 3, 60, 66, 82, 85A, 89A, 89C, 90, 91, 109
Cases Cited: 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 [2014] NSWCA 409
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364
Brierley v Ellis [2014] NSWCA 230; 67 MVR 282
Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379
Eades v Gunestepe [2012] NSWCA 204; 61 MVR 328 Harika v Tupaea [2003] NSWCA 332; 58 NSWLR 675
House v The King [1936] HCA 40; 55 CLR 499
Karambelas v Zaknic (No 2) [2014] NSWCA 433
Mancini v Thompson [2002] NSWCA 38
Russo v Aiello [2003] HCA 53; 215 CLR 643
Sinclair v Darwich [2010] NSWCA 195; 77 NSWLR 166
Walker v Howard [2009] NSWCA 408; 78 NSWLR 161
Category:Principal judgment
Parties: Mark Ivan John Dijakovic (Applicant)
Alfonso Ricard Sarralde Perez (Respondent)
Representation:

Counsel:
R Sheldon SC / E Welsh (Applicant)
M A Cleary (Respondent)

Solicitors:
Brydens Compensation Lawyers (Applicant)
Moray & Agnew Lawyers (Respondent)
File Number(s):2014/188627; 2014/256119
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Civil
Date of Decision:
30 May 2014
Before:
Olsson DCJ
File Number(s):
2013/375029

Judgment

  1. GLEESON JA: The applicant, Mr Dijakovic, was injured in a motor vehicle accident that occurred at Croydon on 21 October 2009. The respondent, Mr Perez, was the driver of the other vehicle involved. The accident occurred as Mr Dijakovic approached an intersection at which the traffic lights were green and an oncoming vehicle, driven by Mr Perez, made a right turn in front of him and Mr Dijakovic “T-boned” the turning vehicle. Mr Perez (by his CTP insurer) has admitted liability in respect of the accident. At the time of the accident Mr Dijakovic was 26 years old.

  2. Although able to walk, Mr Dijakovic was taken by ambulance to hospital. X-rays revealed no fractures and he was discharged with the recommendation that he take an analgesic for pain relief, if necessary.

  3. Mr Dijakovic did not commence legal proceedings against Mr Perez until 13 December 2013, being more than three years after the accident. Thus it became necessary for him to seek the leave of the Court to commence proceedings: s 109(1) of the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act). He subsequently filed a notice of motion on 14 March 2014 seeking leave to maintain the proceedings.

  4. Under s 109(3) of the MAC Act, the leave of the Court in proceedings in respect of a claim for damages arising from a motor accident must not be granted unless: (a) the claimant provides a full and satisfactory explanation to the Court for the delay; and (b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss as at the date of the motor accident. It was common ground that the applicable monetary threshold was $97,500.

  5. On 30 May 2014, a judge of the District Court (Olsson DCJ) refused the application for leave on both grounds: Dijakovic v Perez (District Court (NSW), Olsson DCJ, 30 May 2014, unrep).

  6. Mr Dijakovic has applied for leave to appeal against that decision. The application for leave to appeal and the appeal itself, should leave be granted, were heard concurrently.

  7. Although the conditions as to which satisfaction is required under s 109(3) each involve evaluative judgments, differing views have been expressed as to whether the satisfaction of those conditions is truly a discretionary decision in the sense discussed in House v The King [1936] HCA 40; 55 CLR 499. This is relevant to the standard of appellate review of such findings: Eades v Gunestepe [2012] NSWCA 204; 61 MVR 328 at [2]-[8] (Basten JA) compare at [41]-[43] (Hoeben JA; Tobias AJA agreeing). See also Harika v Tupaea [2003] NSWCA 332; 58 NSWLR 675 at [9] (Mason P; Tobias JA and Foster AJA agreeing) in relation to a similar but not identical provision in s 43A(7) of the Motor Accidents Act1988 (NSW). This question does not require resolution in the present case. Assuming that Mr Dijakovic must satisfy the House v The King criteria, he has done so in the present case. For the reasons which follow, I have concluded that leave to appeal should be granted and the appeal allowed.

  8. An understanding of how the two conditions in s 109(3) were dealt with in the Court below is assisted by an outline of the legislative provisions, the relevant facts and the evidence in support of the application for leave.

Legislative provisions

  1. Section 109 of the MAC Act provides for time limits on the commencement of court proceedings as follows:

s 109 Time limitations on commencement of court proceedings

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

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

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

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

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

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

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

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

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

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

  1. The reference to a “full and satisfactory explanation” is, by s 66(2), to:

… a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.

  1. The words “Authority”, “claim” and “claimant” are defined by the MAC Act, s 3 as follows:

Authority means the Motor Accidents Authority of New South Wales constituted under Part 8.1.

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

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

  1. The reference in s 109(2) to a “claim” that has been referred to the Authority for assessment, is a reference to a claim that has been referred by the claimant or the insurer, or both, for assessment under Pt 4.4 of the MAC Act: s 90.

  2. Before a claim may be referred to the Authority for assessment, the scheme of the MAC Act requires the claimant and the insurer to undertake certain steps with a view to resolution of the claims without court proceedings. In order of sequence, the required steps are:

  1. the insurer has a duty to make a reasonable offer of settlement to the claimant within two months of receipt of the claimant’s particulars of the claim as required by s 85A: s 82(1);

  2. the parties must participate in a settlement conference under s 89A(1) as soon as practicable after the insurer makes a settlement offer under s 82; and

  3. if the claim is not settled, each party must make an offer of settlement within 14 days after the settlement conference concludes: s 89C(1).

  1. It is only necessary to also mention that under s 91 of the MAC Act a claim may not be referred for assessment under Pt 4.4 unless a period of 28 days has elapsed after each party to the claim has made an offer of settlement as required by s 89C: s 91(1). However a claim may be referred for assessment under Pt 4.4 at any time in certain circumstances as provided in s 91(2), none of which are presently relevant.

A full and satisfactory explanation

  1. An explanation is “full and satisfactory” within s 66(2) if it satisfies two requirements. These were explained by Meagher JA (Basten JA and Simpson J agreeing) in Karambelas v Zaknic (No 2) [2014] NSWCA 433 at [16].

  2. First, it must include a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until “the date of providing the explanation”. In the case of late proceedings under s 109(1) that is the date on which the explanation is first provided. Here, Mr Dijakovic’s explanation comprised a combination of affidavit evidence and his oral evidence before the primary judge. Thus he had to explain the period between 21 October 2009 and 30 May 2014.

  3. The purpose of the requirement that the explanation be full, and the necessity to set out fully “the conduct, including the actions, knowledge and belief of the claimant”, is so that the Court can evaluate all of the reasons for the delay and decide whether they are full and satisfactory: Mancini v Thompson [2002] NSWCA 38 at [46]. It is for this reason that it has been said that the applicant for leave cannot “pick and choose” the information to be given relevant to the delay and which the Court has to decide is “satisfactory”: Mancini v Thompson at [46].

  4. Secondly, the explanation must be such that a reasonable person in the position of the claimant “would have been justified in experiencing the same delay”. The “delay” is the period during which the claimant was late commencing proceedings more than three years after the date of the motor accident, subject to the effect of s 109(2) which stops time running where a claim has been referred to the Authority for assessment under Pt 4.4. Here it is common ground that the effect of s 109(2) was that the relevant delay was almost 16 weeks.

  5. The concept of a satisfactory explanation in s 66(2) requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant’s position, the delay which has occurred was reasonably justifiable. The explanation is directed to the delay which occurred to the time when the proceedings were commenced: Karambelas v Zaknic at [17].

The late commencement of proceedings

  1. On 30 October 2010, a little over a week after the accident, Mr Dijakovic consulted Brydens Compensation Lawyers (Brydens). On 17 November 2009 he completed and signed a personal injury claim form. The claim form was lodged with the relevant CTP insurer (QBE) on 18 November 2009. On 31 December 2009, QBE admitted liability on behalf of Mr Perez.

  2. The provisions of the MAC Act require Mr Dijakovic to establish that he suffered a degree of permanent impairment greater than 10% before damages may be awarded for non-economic loss: s 131. At issue between Mr Dijakovic and the insurer was whether Mr Dijakovic’s impairment satisfied this threshold.

  3. Mr Dijakovic failed to attend a medical appointment arranged for him by Brydens for March 2010. Between April and October 2010 he failed to respond to correspondence from Brydens seeking instructions.

  4. On 5 October 2010 Mr Dijakovic contacted Brydens and advised that he did wish to proceed with his claim. However, he again failed to respond to correspondence and telephone calls from Brydens between November 2010 and March 2011. Finally, on 17 March 2011, he telephoned Brydens. A conference was arranged with the solicitor handling his matter for 31 May 2011. He failed to attend, but attended a rescheduled conference on 23 June 2011.

  5. Mr Dijakovic attended upon various doctors retained by Brydens between July and October 2011. The doctors provided reports in September 2011 (Dr Clark, psychiatrist, dated 30 July 2011), October 2011 (Dr Conrad, surgeon, dated 20 October 2011) and November 2011 (Dr Bodel, orthopaedic surgeon, dated 22 September 2011).

  6. On 18 January 2012 Brydens wrote to Mr Dijakovic informing him of the threshold level of whole person impairment before damages may be awarded for “pain and suffering”. The letter stated that the medical reports had been reviewed and advised that there was no evidence available to establish that the injuries had resulted in a whole person impairment of greater than 10%. Accordingly Brydens recommended that Mr Dijakovic should concede to the insurer that his injuries had not reached the relevant threshold and therefore he was not entitled to recover damages for pain and suffering (that is, for non-economic loss).

  7. An internal Brydens’ memorandum dated 3 February 2012 from “David” to “Lee” (who it may be inferred was Mr Lee Hagipantelis), recorded that Mr Dijakovic had attended a conference with Brydens the previous day during which he gave instructions that his physical injuries had deteriorated and that he could not lift anything despite continuing as a forklift driver and storeman. The memorandum noted that Mr Dijakovic had given instructions to concede to the insurer that his injuries had not attained the threshold of whole person impairment greater than 10%.

  8. Mr Hagipantelis responded in a memorandum to “David” dated 6 February 2012 with instructions that, given the assessment provided by Dr Clark, a MAS Application for both the physical and the psychiatric injuries should be pursued and that steps should be taken to ensure that treating and medico-legal reports were up-to-date. These instructions were passed on in a memorandum dated 13 February 2012 from “David” to Ms Babanour. That memorandum requested Ms Babanour to ensure that treating medico-legal reports were up-to-date and to obtain a report from Dr Kolac at Ashfield. In turn, in a memorandum dated 16 February 2012, Ms Babanour requested Ms Cara Jones (who at that time was a paralegal with Brydens) to proceed with a MAS Application for both physical and psychiatric injuries.

  9. On 30 March 2012 Ms Jones informed Ms Babanour in a memorandum that the application had been prepared but there was no up-to-date medical schedule on the file. Ms Jones requested that such a schedule be prepared to ensure that the medicals which had been served (up until that date), were included in the “MAS 2A” Application. Ms Jones noted that once this had been done the application would be ready to be lodged with the Medical Assessment Service.

  10. On 9 July 2012 an internal memorandum addressed to Mr Hagipantelis, amongst others, noted that Brydens was about to lodge the MAS 2A Application.

  11. Finally, on 20 July 2012 (after a delay of over 8 months since obtaining the last medical reports), an application described in the covering letter as a “MAS 2A Application” was lodged by Brydens with the Authority on behalf of Mr Dijakovic. Although the application was not in evidence, it was common ground that the application concerned the assessment of a medical dispute regarding whether the degree of permanent impairment of Mr Dijakovic as a result of the accident was greater than 10%: s 60 MAC Act.

  12. On 9 August 2012 Brydens provided particulars of the claim to Mr Perez’s solicitors for the purposes of s 85A of the MAC Act. On 17 August 2012 Brydens invited the insurer to participate in a s 89A conference, scheduled for 29 August 2012, and not an informal settlement conference as had apparently been suggested by the insurer. The insurer took the position that the scheduled conference could not be treated as a s 89A conference because the insurer had not yet made its s 82 settlement offer. Brydens responded in a letter dated 24 August 2012 stating that they would only participate in an informal conference if it could be a s 89A conference. It seems that the informal conference scheduled for 29 August 2012 did not proceed. Subsequently on 18 September 2012, the insurer made its s 82 offer of settlement to Brydens.

  13. On 19 October 2012, being just prior to the three year anniversary of the accident, Brydens lodged an application with the Authority described in the covering letter as a “CARS Form 2A Application”. Again this application was not in evidence. It was common ground that this application concerned a referral of a claim to the Authority for assessment, purportedly under s 90 of the MAC Act.

  14. It seems that the parties participated in a s 89A settlement conference on 6 December 2012, and the insurer served its s 89C offer on Brydens on 10 December 2012. Mr Dijakovic also made his s 89C offer in a letter from Brydens also dated 10 December 2012.

  15. On 6 and 13 December 2012, the respective medical assessors issued certificates assessing Mr Dijakovic’s degree of permanent impairment, as a result of the motor accident, as not greater than 10% (in the case of Assessor Dr Prior, psychiatrist, the current whole person impairment for psychiatric injury was assessed at 1% and in the case of Assessor Dr Thomson (whose clinical specialty did not appear in the certificate), the degree of permanent impairment was assessed at 0%).

  16. On 5 February 2013 a claims assessor dismissed the CARS Application on the ground that it had been lodged prematurely before the parties had an opportunity to participate in a settlement conference (under s 89A of the MAC Act) or exchange offers (under s 89C of the MAC Act).

  17. On 8 February 2013 a second CARS Form 2A Application was lodged by Brydens with the Authority on behalf of Mr Dijakovic. Again, this application was not in evidence. An assessment hearing was held on 21 October 2013 and a certificate as to assessment was issued by the assessor on 8 November 2013.

  18. Mr Dijakovic did not accept that assessment. Instead, on 13 December 2013 he filed a statement of claim in the District Court. The defence filed by Mr Perez on 14 February 2014 pleaded non-compliance with the limitation period specified in s 109 of the MAC Act.

  19. On 14 March 2014 Mr Dijakovic filed a notice of motion seeking leave pursuant to s 109(1) to maintain the proceedings. Mr Dijakovic, as the person commencing proceedings, has the onus of satisfying the Court that the two conditions set out in s 109(3) were satisfied: Eades v Gunestepe at [52] (Hoeben JA; Basten JA and Tobias AJA agreeing).

The evidence in support of the application

  1. The evidence in support of the application for leave comprised two affidavits from Mr Dijakovic, three affidavits from Ms Jones, a solicitor from Brydens, various medico-legal reports and documentary evidence concerning Mr Dijakovic’s employment history. Both Mr Dijakovic and Ms Jones were cross-examined.

  2. Mr Perez relied upon various medico-legal reports which had been obtained on his behalf from Dr Sekel, occupational medicine consultant, and Dr Smith, consultant psychiatrist.

Mr Dijakovic’s evidence

  1. In his second affidavit Mr Dijakovic described the injuries suffered as a result of the motor accident as injuries to his neck, his left shoulder, his back and his knees. He also said he suffered from shock, anxiety and depression and that since the accident his aggression levels had been elevated substantially. He said that he had been informed that surgery on his shoulder was a real possibility and he would probably accept the advice of his doctor to take any necessary surgery. He said that he had been seeing a psychologist approximately once a month for about a year, that this was helping and that he was also taking antidepressants.

  2. Mr Dijakovic gave evidence of his work history since the accident. At the time of the accident he was employed as a forklift driver at Blue Collar Airport Services. After the accident he was off work for about two days, then placed on light duties for about four weeks before his employment was terminated. He obtained a new job through an employment agency. He said he was working at Norton Glass doing forklift driving until about 7 June 2011 and he had not worked since.

  3. Mr Dijakovic corrected his affidavit, in oral evidence in chief, stating that his last employer was Velluti Providores and that he last worked in November 2012. In cross-examination he said that he stopped working because he could not perform his work anymore, in particular he could not lift his arm up (tcpt 11, lines 21-25).

  4. Mr Dijakovic said that his physical and psychological injuries had prevented him from working since November 2012. He said he did not believe that an employer could rely upon him to attend work when required and perform the work that was asked of him. He referred to constant pain and having some restriction of movement in his back, neck and shoulder. He described his current mental state as being very quick tempered, that he had low energy and was feeling severely depressed.

  5. Mr Dijakovic acknowledged ignoring correspondence and telephone calls from Brydens (between April and October 2010). He said that at the time he could not deal with his claim emotionally. This was because it was distressing for him to recount the events that had occurred. He gave this as the reason why he did not attend the medical appointment that had been arranged in March 2010. He described his reaction upon receiving correspondence from Brydens as causing his palms to sweat and his heart start to race, causing him to feel sick. He said that the correspondence would remind him that his life was not worth much and that it was too much for him to handle.

  6. Mr Dijakovic acknowledged contacting Brydens at one point (which it may be inferred from the evidence of Ms Jones, was 5 October 2010) and giving instructions to proceed with his claim. However, he said his enthusiasm was short lived because he was not mentally able to respond to further letters or answer telephone calls from Brydens.

  7. Although Mr Dijakovic contacted Brydens on 17 March 2011 and gave instructions to proceed with his claim, he could not recall why he did not attend a conference with his solicitor arranged for 31 May 2011. He said it was most likely that he had “chickened out” on that occasion.

Ms Jones’ evidence

  1. Ms Jones was employed by Brydens as a paralegal in 2011 and as a solicitor from May 2012. She had the day-to-day conduct of the proceedings on behalf of Mr Dijakovic from 27 May 2013.

  2. In cross-examination, Ms Jones initially agreed that she was unable to explain the delay by Brydens between the Dr Conrad’s examination of Mr Dijakovic in October 2011 and the lodgement of the MAS Application in July 2012.

  3. After a short adjournment, counsel for Mr Dijakovic led further oral evidence in chief from Ms Jones. She confirmed that she had looked at the Brydens’ file and located various documents. These were tendered without objection and became exhibit 1. Their contents are summarised at [25]-[29] above. In further cross-examination, Ms Jones agreed that Brydens could have proceeded with the MAS Application any time from January 2012.

The medical evidence

  1. As to the medical evidence, it is only necessary to refer to three matters.

  2. First, Dr Peter Conrad, surgeon, examined Mr Dijakovic in October 2011, June 2013 and April 2014. In his last report, Dr Conrad expressed the opinion that Mr Dijakovic had sustained an injury to his ribs, thoracolumbar spine and left shoulder. He also noted that a MRI scan showed what appeared to be a labral detachment of the left shoulder. He agreed with Dr Tan, Mr Dijakovic’s orthopaedic surgeon, that Mr Dijakovic needed an arthroscopic repair and would be off work for about 10 weeks.

  3. With respect to Mr Dijakovic’s work capability, Dr Conrad expressed the opinion that he was not fit to do full on heavy forklift driving, such as he did prior to the accident. He stated that he would be able to do about 20 hours per week of light work in a position where he is able to stand or sit at will and not lift anything more than 5 kgs in weight, and not do any overhead work with his left arm.

  4. In his earlier June 2013 report, Dr Conrad recorded the history given by Mr Dijakovic that his condition had deteriorated since October 2011. Mr Dijakovic described ongoing pain in his back and that this radiated from time-to-time into both legs. He also described some pain in his left shoulder and stiffness in his neck, and that all this was worse when he is standing, sitting, bending or lifting. Dr Conrad recorded that Mr Dijakovic had been looking for work however he was restricted in the types of jobs he was able to do and as a result had not been able to find suitable work.

  5. Secondly, Dr Thomas Clark, consultant forensic psychiatrist, examined Mr Dijakovic in July 2011 and October 2012. In his first report, Dr Clark diagnosed Mr Dijakovic as suffering a post-traumatic stress disorder with an ensuing phobic anxiety disorder. This diagnosis was based on the history given by Mr Dijakovic that he had flashbacks to the event; he was confused and angry about the accident; the insurance company, at one time, attempted to blame him for the accident; and that he sustained chronic injuries, despite his thoughts that he would recover.

  6. In his second report, Dr Clark noted the same diagnosis and expressed the opinion that Mr Dijakovic was suffering from a recurrent anxiety depression (currently depressed with moderated associated anxiety symptoms) and from a complicating functional somatic syndrome. He described this as a post-traumatic stress disorder and noted no genetic vulnerability. Dr Clark recommended that Mr Dijakovic should attend a treating psychiatrist. He observed that initially the course of treatment would be nine months although many cases become chronic, that is, requiring more than two years treatment.

  7. Thirdly, the medico-legal opinions obtained by QBE expressed conflicting views to those obtained on behalf of Mr Dijakovic.

Primary judge’s reasons and findings

  1. The primary judge gave short ex tempore reasons at the conclusion of oral argument on 30 May 2014.

  2. After referring to various events occurring between the date of the accident and the date of commencement of the proceedings, including the first and second CARS Applications, the primary judge stated that the proceedings were commenced “a couple of months beyond the three year time limit imposed by s 109” (Judgment p 4). Her Honour did not explain how she arrived at this assessment of the “delay”. However it seems that her Honour may have taken the view that time stopped running upon the lodgement of the second CARS Application on 8 February 2013, and accordingly, the period of delay was between 21 October 2012 and 8 February 2013. (As noted below, it was the common assumption of the parties before her Honour, that the second CARS Application stopped time running under s 109(2)).

  3. A little later in her reasons (Judgment p 6) the primary judge referred to the “period of delay” which required explanation, as being the period between the accident on 21 October 2009 and 30 May 2014 – a period in excess of 4 years and 7 months. (Mr Dijakovic contends that this statement discloses error by the primary judge and that it is also inconsistent with her Honour’s earlier reference to the proceedings being “a couple of months” late.)

  4. The primary judge found that Mr Dijakovic did not give a full account of the nature, frequency and date of any medical treatment which he had received since the accident, nor a full account of the nature, frequency and dates on which he had worked since the accident (Judgment p 6).

  5. Her Honour considered that the evidence did not make clear what were the circumstances in which Mr Dijakovic left employment with Velluti Providores at the end of 2012 (Judgment p 7).

  6. Her Honour noted Mr Dijakovic’s explanation that he was in constant pain and had some restriction of movement in his back, neck and shoulder which were made worse by his mental state. However, her Honour considered that this explanation did not address Mr Dijakovic’s capacity for doing alternative employment or employment of a less physical nature, nor did it address any steps that he may have taken to obtain psychological assistance in dealing with his psychological issues (Judgment p 7).

  7. Her Honour also observed that there was no reference in Dr Clark’s July 2011 report (which had diagnosed Mr Dijakovic’s psychological condition) to Mr Dijakovic not being able to work or feeling that he was not of any value in that he would not be of any use to an employer for that reason (Judgment p 7).

  8. Her Honour found that Mr Dijakovic did not give a “full” account or a complete explanation, including his actions, knowledge and belief in the period from the accident up to 20 June 2011. (The significance of this date is that it is at the end of the period during which Mr Dijakovic failed to respond to communications from his solicitors and requests to attend medical appointments). With respect to this period, her Honour considered that there was no medical evidence or psychiatric evidence that Mr Dijakovic had an emotional disorder that prevented him from speaking with his solicitors during this period (Judgment p 8).

  9. Her Honour considered that there was “little or no satisfactory explanation” for Mr Dijakovic’s “absolute inability” to respond to his solicitors repeated requests to do things. Her Honour found that a reasonable person in Mr Dijakovic’s position would not have acted in the way in which he did by ignoring for long periods, correspondence and telephone calls from his solicitors (Judgment p 9).

  10. The primary judge identified the delay by Mr Dijakovic’s solicitors as being a period of about six or seven months, between receipt of the last medico-legal assessments in November 2011 and the lodgement of the MAS assessment in July 2012. Her Honour found that no real explanation was given for the solicitor’s delay. Nonetheless, her Honour considered that less weight should be placed on this aspect of the delay than on Mr Dijakovic’s own delay (Judgment pp 9-10).

  11. Her Honour concluded that the main reason that the proceedings were commenced late was that the claim had not been advanced until the very end of the three year limitation period (Judgment p 10).

  12. In relation to the monetary threshold under s 109(3)(b), the primary judge was not satisfied that the total damages of all kinds that would be likely to be awarded to Mr Dijakovic if he succeeds would be not less than 25% of the maximum amount that may be awarded for non-economic loss, which the parties agreed was $97,500 (Judgment p 12). In reaching this conclusion, the primary judge:

  • did not accept that there would be any past economic loss or any future economic loss in the order suggested by Mr Dijakovic’s counsel or, indeed, if at all. In oral submissions, counsel had suggested $64,000 for past wage loss and $450,000 for future wage loss.

  • did not accept that there was any adequate evidence of the need for domestic assistance.

  • accepted that there was likely to be some damages for past and future medical expenses, including possibly even some surgery, but the likely amount did not meet the relevant monetary threshold of $97,500.

  1. As the primary judge found that the conditions in s 109(3) had not been satisfied, it was unnecessary for her Honour to consider whether an extension of time should be granted as a matter of discretion.

The grounds of appeal

  1. The draft notice of appeal and Mr Dijakovic’s written and oral submissions contend that the primary judge erred in four respects. First it is said that the primary judge erred in the determination of the period of delay which required explanation under s 109(3)(a) of the MAC Act. The asserted error is that her Honour did not allow for the suspension of the running of time under s 109(2) by reason of the CARS assessment processes between 19 October 2012 and 8 November 2013.

  2. Secondly, it is said that the primary judge erred in her assessment of the evidence and the application of the correct test of a “full and satisfactory explanation”. The asserted error is that her Honour failed to evaluate Mr Dijakovic’s conduct involving delay against the hypothetical reasonable person in his position.

  3. Thirdly, it is said that the primary judge erred in failing to find that there was a real chance of Mr Dijakovic attaining the relevant damages threshold under s 109(3), which the parties agreed was $97,500.

  4. Finally, it is said that the primary judge erred in failing to exercise the discretion to grant leave.

What was the period of delay for which an explanation was required?

  1. Mr Dijakovic contends that the primary judge wrongly identified “the delay” which required explanation under s 109(3)(a), as being from the date of the accident to the date of the explanation, a period of 4 years and 7 months. The asserted error is that her Honour did not allow for the suspension of the running of time under s 109(2), by reason of the CARS assessment process. It is to be noted that s 109(2) identifies two times, being a beginning period (when a claim is referred to the Authority for assessment), after which time does not run, and an end period (being 2 months after the issue of a certificate of assessment or exemption from assessment), from which time resumes.

  2. In his written submissions, Mr Dijakovic contended that the correct period of “delay” was either:

  • about 3 days (assuming time stopped running when the first CARS Application was lodged on 19 October 2012 until 5 February 2013, and time stopped running again on 8 February 2013 when the second CARS Application was lodged); or

  • alternatively, about 4 months (assuming time stopped running only when the second CARS Application was lodged on 8 February 2013).

  1. In oral argument, the first contention was not pressed and reliance was placed solely on the second contention (tcpt, CA at 1, line 38-39).

  2. In these circumstances it is unnecessary to address the questions raised by the first contention being: (a) whether the reference to a “claim” in s 109(2) includes a claim which has been referred to the Authority for assessment but, as in this case, is subsequently dismissed on the ground that it had been lodged prior to the parties participation in a settlement conference pursuant to s 89A(1), and therefore prematurely (see s 89A(2) MAC Act); and (b) whether such non-compliance inevitably results in the invalidity of the “claim” which has been referred for assessment or has the consequence that s 109(2) is not engaged. As to the effect of non-compliance with statutory provisions, see generally Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 at [33]-[37] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) and at [87] (Kirby J); 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 [2014] NSWCA 409 at [97]-[105] (Leeming JA).

  3. Counsel for Mr Perez acknowledged that although the precise period of “delay” was not at the forefront of the submissions before the primary judge, it was the common assumption of the parties below that, at least, the second CARS Application stopped time running under s 109(2) for the purposes of calculation of the delay (tcpt, CA at 13, lines 39-40). Counsel for Mr Perez did not seek to depart from this position in this Court (tcpt, CA at 14, lines 15-24). Counsel accepted that the relevant period of delay which required explanation was about 16 weeks, being the period between 21 October 2012 and 8 February 2013.

  4. It is appropriate to deal with the delay issue on this basis, which was common ground, notwithstanding the question of construction which would otherwise arise under s 109(2) with respect to the effect of the second CARS Application on the running of time under s 109(1). In particular, if proceedings have not been commenced within the three year period referred to in s 109(1), does time stop running under s 109(2) for the purposes of calculating the period of delay where a claim is first referred to the Authority under Pt 4.4 of the MAC Act, after the three year period in s 109(1) has expired? This question must await another day.

Consideration

  1. The inquiry required by s 109(3)(a) and s 66(2) has two temporal elements. One is the period of “delay” in commencing the proceedings after the three year time limit has expired. It is “the delay” which requires explanation under s 109(3)(a). The other is the period in respect of which a “full” account is required of the claimant’s conduct including the actions, knowledge and belief of the claimant. Authority makes plain that this period is from the date of the accident until the date of providing the explanation for the delay in commencing proceedings: Brierley v Ellis [2014] NSWCA 230; 67 MVR 282 at [7]; Karambelas v Zaknic at [16]; Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 at [48]; Russo v Aiello [2003] HCA 53; 215 CLR 643 at [4]; Mancini v Thompson at [46]-[47].

  2. It may be accepted that at one point in her reasons, the primary judge seems to have conflated these two periods when stating that Mr Dijakovic “has to explain the period of delay that occurred between 21 October 2009 and the present time, 30 May 2014” (Judgment p 6). However when this passage is read in context I do not consider that her Honour misunderstood the period of “delay” which required explanation.

  3. First, the context of her Honour’s reference to the “period of delay” may be seen from the immediately preceding passage in her Honour’s reasons. There her Honour referred to the requirement in s 66(2), that the explanation be fully focussed upon the period from the date of the accident until the date of providing the explanation.

  4. Secondly, her Honour had earlier identified in her reasons, that the period of “delay” in commencement of the proceedings was “a couple of months”. This roughly accorded with the period of delay, which the parties had accepted before her Honour as being the relevant “delay”, on the assumption that the second CARS Application stopped time running under s 109(2).

  5. On a fair reading of her Honour’s judgment, ground 1 is not made out.

A full and satisfactory explanation

  1. Mr Dijakovic next contends that the primary judge erred in her assessment of the evidence of the explanation for the delay. This complaint is directed to her Honour’s findings that the explanation was not: (a) “full”, because of the insufficiency of details of Mr Dijakovic’s knowledge and belief over the period from the date of the accident until June 2011; or (b) “satisfactory”, because a reasonable person in the position of Mr Dijakovic would not have acted in the way in which he did, in ignoring communications from his solicitor for a period of almost 12 to 16 months.

  2. As to (a), Mr Dijakovic contends that the primary judge erred in finding that a “full” explanation had not been given. It is said that the psychological condition he had developed following the accident led to his avoidant behaviour and that the delay on his solicitor’s part between November 2011 and July 2012 was a full account of the relevant period.

  1. As to (b), Mr Dijakovic contends that the primary judge failed to apply the correct test, namely, that of a reasonable person in Mr Dijakovic’s position. It is said that her Honour did not take into account the diagnoses of Dr Clark, the psychiatrist who diagnosed Mr Dijakovic as suffering “post-traumatic stress disorder” and a “phobic anxiety disorder”, when assessing whether a reasonable person in his position would have experienced the same delay. Mr Dijakovic also contends that her Honour was wrong to apportion, in a causal sense, responsibility for the delay to him rather than to his solicitors.

  2. Mr Perez seeks to uphold the primary judge’s findings that the explanation provided was not full or satisfactory. As to (a), counsel for Mr Perez contends that there is an evidentiary gap in the solicitor’s evidence. Counsel characterised this evidence as merely explaining what happened, particularly in the period November 2011 to July 2012, but not properly explaining the reason for the delay.

  3. As to (b), counsel for Mr Perez contends that the delay associated with Mr Dijakovic failing to communicate with his solicitors for about 15 months had a “domino effect” with the consequence that if this had not occurred everything thereafter could have happened earlier and the proceedings could have been commenced within time.

Consideration

  1. In my view, the primary judge’s reasoning on the “full and satisfactory” explanation issue, contains material errors of fact and failed to take into account relevant matters which explained the delay.

  2. First, although Dr Clark’s July 2011 report did not draw a causal connection between his diagnosis of Mr Dijakovic’s psychological condition and his earlier failure to respond to communications from Brydens, this is not surprising. At the time of Dr Clark’s report, Mr Dijakovic had resumed contact with Brydens. Dr Clark’s report was not specifically directed to explaining why Mr Dijakovic had failed to respond to earlier communications from Brydens. Nonetheless, the diagnosis in that report provided, in my view, firm support for Mr Dijakovic’s explanation of the reasons for his earlier avoidant behaviour.

  3. Secondly, the primary judge seems to have overlooked the evidence – affidavit, oral and documentary – which confirmed that but for a short period of incapacity immediately after the accident, Mr Dijakovic worked at a variety of casual jobs, in effect, almost full-time up until November 2012. Contrary to the view of the primary judge, Mr Dijakovic gave evidence in cross-examination as to the circumstances in which he left Velluti Providores at the end of 2012. He explained why he could not perform his work anymore (tcpt at 11, lines 21-26). He also explained why he had not been actively looking for work since that time. Her Honour erred in finding that Mr Dijakovic had not explained his employment position from the time he ceased work in November 2012.

  4. Thirdly, her Honour’s criticism of Mr Dijakovic’s evidence for not addressing his capacity for alternate employment or employment of a less physical nature, ignored the unchallenged evidence of Dr Conrad in his June 2013 and April 2014 reports of the restrictions on Mr Dijakovic’s work capability: see [52]-[54] above. Of even greater significance, her Honour conflated the requirement for a full explanation of the delay with the issues relating to the monetary threshold, in particular whether Mr Dijakovic’s explanation for not working since late 2012 would likely deny his claim for economic loss.

  5. Fourthly, the finding that no real explanation had been given for the delay in the lodgement of the MAS Application ignored the evidence of Ms Jones and the documents from Brydens’ file which were tendered and became exhibit 1. That evidence explained the steps taken between January and July 2012 in preparing and lodging the MAS Application. This task was delegated within Brydens on multiple occasions during February 2012 before ultimately being given to Ms Jones, then a paralegal. Ms Jones having prepared the MAS Application on 30 March 2012, she forwarded it to two other employees of Brydens for finalisation and lodgement, but this did not occur until 20 July 2012.

  6. The explanation for the delay by Brydens is clearly the inefficiencies in the way in which the legal work was performed and supervised at Brydens, Ms Jones having frankly conceded in re-examination that Brydens could have proceeded with the MAS Application from any time in January 2012. In my view, the primary judge erred in finding that the explanation for the delay was not “full”.

  7. Fifthly, the primary judge erred in concluding that a reasonable person in Mr Dijakovic’s position would not have acted in the way he did. This may be taken to be a reference to his avoidant behaviour between March 2010 and June 2011. The primary judge reasoned that because Mr Dijakovic was working during this period and had not sought treatment for his psychological difficulties, his avoidant behaviour was not satisfactorily explained. However, this ignored Mr Dijakovic’s evidence of the reasons for his avoidant behaviour, as well the history and diagnosis recorded in Dr Clark’s July 2011 report. That history included that Mr Dijakovic had stopped going out, had lost his former social life and friends, tended to sit on the computer rather than communicating with people, and he had lost self-confidence and motivation. Dr Clark described this history as involving “pronounced social withdrawal”.

  8. The failure of Mr Dijakovic to seek psychological treatment for his condition is explicable by his aversion to contact during this period. Nor is the fact that he remained in employment during this period inconsistent with Dr Clark’s diagnosis.

  9. Sixthly, the primary judge erred in accepting the “domino effect” argument advanced by counsel for Mr Perez. This argument relied upon a type of “but for” analysis of the respective causal significance or potency of the delays attributable to each of Mr Dijakovic and his solicitors. Mr Perez had submitted that the delay related to Brydens’ conduct between November 2011 and July 2012 would not have mattered, but for the earlier delay by Mr Dijakovic between March 2010 and June 2011. Thus it was contended, and the primary judge accepted, that responsibility for the delay should be attributed to Mr Dijakovic rather than to his solicitors.

  10. This “causal” approach to whether the explanation is satisfactory should be rejected. The question is whether a reasonable person in the position of Mr Dijakovic would have been justified in experiencing the delay which occurred. Where that delay involves, in part, the conduct of the claimant’s solicitor, such delay is ordinarily outside of the control of the claimant, unless the claimant has contributed to the delay, such as by not giving instructions or attending medical appointments as requested.

  11. In the present case, after a long period of inactivity by Mr Dijakovic, he resumed giving instructions and attended necessary medical appointments between June and October 2012. He understood that his solicitors were progressing his claim. He had no control over their conduct during that time. An explanation for what happened, after the final medico-legal report was received in November 2011, was provided by Brydens. The primary judge failed to take into account that Mr Dijakovic had no control over the delay by Brydens in the first half of 2012.

  12. Seventhly, and related to the last matter, the primary judge also failed to take into account that Mr Dijakovic had no control over the timing of the provision of the s 85A particulars by Brydens to the insurer’s solicitors, which did not occur until 9 August 2012, nor the timing of the subsequent steps which were required to be taken under the MAC Act before proceedings in respect of a claim could be commenced; in particular Mr Dijakovic had no control over the timing of the insurer’s offer under s 82 (which did not occur until 18 September 2012), or the timing of the s 89A conference and the making of s 89C settlement offers.

  13. Eighthly, the primary judge failed to take into account that the insurer did not act quickly in making its s 82 offer following receipt of the s 85A particulars on 9 August 2012, notwithstanding that the insurer was entitled to wait a full two months under s 82(1). It waited for about six weeks to respond. The insurer relied upon the absence of it having made a s 82 offer as a precondition to a s 89A settlement conference, which Brydens was seeking after 9 August 2012. Although the insurer finally made its s 82 offer on 18 September 2012, this left insufficient time for the s 89A settlement conference, the making of s 89C offers and the lapse of the required 28 days after the making of such offers, such that proceedings could not be commenced within the 3 year limitation period expiring on 21 October 2013.

  14. In my view, the primary judge erred in finding that the explanation for the delay was not “satisfactory”. First, Mr Dijakovic’s avoidant behaviour was explained by his own evidence and Dr Clark’s opinion of his psychological condition. Secondly, Mr Dijakovic had no control over the conduct of Brydens from June 2011, when he resumed contact with Brydens. Thirdly, Mr Dijakovic had no control over the timing of the steps required to be taken both on his behalf and by the insurer under the MAC Act, before proceedings in respect of his claim could be commenced.

  15. In my view, ground 2 is made out.

Monetary threshold

  1. In notionally assessing damages under s 109(3)(b), the primary judge relied upon three matters for her conclusion that there was no cogent claim for either past or future wage loss in the amount suggested by counsel for Mr Dijakovic, or indeed at all. These matters were: (a) Mr Dijakovic’s previous work history of continuous employment up until the end of 2012; (b) radiology, which her Honour considered showed no impairment of Mr Dijakovic’s left shoulder or left upper body such that he would be unable to do any work; and (c) her Honour’s view that “much of the medical opinion is the same”.

  2. Counsel for Mr Dijakovic contends that the likely damages claim for economic loss well exceeds the applicable monetary threshold of $97,500. It is said that taking Dr Conrad’s assessment of Mr Dijakovic’s capacity to work 20 to 25 hours per week, and based on the evidence that Mr Dijakovic was earning $800 per week, the economic loss of $400 per week, translates into a likely claim of approximately $35,000 for past loss and $300,000 for future loss ($400 x 884.8 less 15% deduction for vicissitudes). Even if Mr Dijakovic’s wage loss was assessed at about $100 per week, counsel said that this would be sufficient to meet the threshold.

  3. Counsel for Mr Perez did not take issue with the integers on which these calculations were based, or their product.

Consideration

  1. The primary judge was required under s 109(3)(b) to assess the likely result of damages if the claim succeeds. This involved a predictive exercise. It is well established that the term “likely” in s 109(3)(b) means a “real chance” or a “real prospect”: Sinclair v Darwich [2010] NSWCA 195; 77 NSWLR 166 at [36]; Eades v Gunestepe at [10]. As Basten JA explained in Eades v Gunestepe at [10], the relevant shade of meaning of “likely” in the present context is conveyed by “the notion of a substantial, as distinct from a remote chance”: Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 at 389 (Mason CJ).

  2. When the question is approached in this manner the difficulties with the primary judge’s approach are evident.

  3. First, the primary judge ignored Mr Dijakovic’s evidence in cross examination that he stopped working at the end of 2012 as he could not perform his duties anymore because he could not lift his arm (tcpt at 11, lines 21-25). Mr Dijakovic was not challenged in cross-examination on that explanation. There is no incongruity between Mr Dijakovic‘s previous history of continuous employment after the accident and his ceasing work as a casual forklift operator, in circumstances where he could not lift his arm at the end of 2012.

  4. Secondly, as to the significance of the radiology, the primary judge did not identify which of the radiology reports she relied upon for her assessment of the impairment to Mr Dijakovic’s left shoulder. Counsel for the respondent suggested that the relevant “radiology” was the left shoulder ultrasound, and the 2009 and 2010 X-rays (tcpt, CA at 32, line 47 – 33, line 10).

  5. There were at least four ultrasound reports in evidence relating to Mr Dijakovic’s left shoulder. These ultrasound reports all found no indication of a rotator cuff tear, though the first ultrasound report (31 October 2011) and, to a greater extent, the last (25 February 2014) identified restricted movement. In the case of the latter report, Dr Hu, the radiologist commented that Mr Dijakovic was significantly limited in the range of movement in his shoulder and suggested that an MRI should be ordered to assess for adhesive capsulitis.

  6. As to the X-rays, Dr Lowenstein recorded in the 26 October 2009 X-ray report that no rib fractures or rib lesions were identified. The Court was not taken to any 2010 X-ray report in the materials before this Court.

  7. However, her Honour seems to have overlooked other investigations of Mr Dijakovic’s left shoulder. An MRI scan on 22 May 2013 revealed possible labral detachment. A further MRI investigation occurred in March or April 2014 and Mr Dijakovic was examined by Dr Tan, an orthopaedic surgeon, around this time (tcpt at 6, line 1-5, 20-22). Although Dr Tan’s advice and the further MRI report were not in evidence, Dr Conrad referred to them in his 22 April 2014 report. Dr Conrad agreed that the MRI shows an apparent labral detachment of the left shoulder, and that, consistent with Dr Tan’s opinion, Mr Dijakovic may require arthroscopic repair, which would cost around $8,000 and prevent him from working for about 10 weeks.

  8. Thirdly, the bald conclusory statement of the primary judge regarding the effect of “much” of the medical opinion, involved the acceptance of one expert or group of experts over another. However, none of the medico-legal witnesses were cross-examined, the parties being content to join issue on the basis of tendering medical reports that expressed a range of views. Her Honour seems to have approached the matter on the basis, urged upon by submissions by counsel for Mr Perez, that a finding should be made with respect to the conflicting medical evidence.

  9. There are two difficulties with her Honour’s approach. The first is that it ignores that satisfaction of the condition in s 109(3)(b) is based on a preliminary enquiry involving a cursory assessment of available material: Eades v Gunestepe at [8] (Basten JA).

  10. The other difficulty is that her Honour’s attention was not drawn to relevant authority in this Court which has considered how conflicting medical evidence should be approached on such an application. Those authorities emphasise that an application for leave under s 109 is not the trial of the claim. Where the parties join issue on the basis of tendering medical reports that take a range of positions, without cross-examining any of the witnesses, “the court should be very slow to resolve the matter adversely to the claimant on the basis of medical reports that are debatably favourable to the insurer on the threshold issue but are contradicted by the claimant’s medical evidence”: Harika v Tupaea at [25] (Mason P).

  11. Although the observation of Mason P in Harika v Tupaea related to a different section, that is s 43A(7) of the Motor Accidents Act, that section used the same formula of words “likely to be awarded” as is used in s 109(3)(b). Further, as Hoeben JA observed in Eades v Gunestepe at [48], s 43A(7) performed a similar, but not identical, function to that of s 109(3)(b).

  12. In this Court, counsel for Mr Perez accepted that her Honour should have approached the threshold issue by reference to the claimant’s medical evidence, taken at its highest (tcpt, CA at 31, lines 37-46). On this basis, counsel accepted that the report of Dr Conrad of April 2014 concerning Mr Dijakovic’s work capacity, together with evidence of his earning capacity based on his wage as at the end of 2012, would have been sufficient to satisfy the threshold of likely damages (tcpt, CA at 33, line 32-36). That concession was properly made.

  13. Accordingly, the judge erred in her approach to the lay and medical evidence in respect of the monetary threshold issue. Ground 3 is made out.

  14. It follows that it is appropriate that leave to appeal be granted and that the appeal be allowed. There would otherwise be an injustice to Mr Dijakovic by the refusal of leave to appeal.

Grant of leave under s 109(1)

  1. It becomes necessary to consider whether this Court should exercise the power under s 109(1) to grant leave to commence proceedings in the District Court rather than for the matter to be remitted to that Court for determination of that question. Counsel for Mr Perez did not seek to advance any reason why this Court should not deal with the matter if the appeal was allowed.

  2. As to the condition in s 109(3)(a), I am satisfied for the reasons given above that a full and satisfactory explanation was given by Mr Dijakovic for the delay, keeping in mind that it is common ground that the delay here was about 16 weeks.

  3. As to the monetary threshold in s 109(3)(b), I am satisfied that there is a real chance that if Mr Dijakovic’s claim succeeds the total damages likely to be awarded will exceed the agreed threshold of $97,500.

  4. No discretionary reasons against the grant of leave were advanced by Mr Perez either before the primary judge or in this Court. In particular, there is no suggestion that the insurer has been prejudiced by the relatively small delay in commencing proceedings.

  5. In my view, there should be a grant of leave to commence proceedings in the District Court.

Conclusion and orders

  1. I propose the following orders:

(1)   Leave to appeal be granted.

(2)   The appeal be allowed.

(3)   The orders made by the District Court on 30 May 2014 be set aside.

(4)   In lieu thereof:

(a) grant leave to the plaintiff pursuant to s 109 of the Motor Accidents Compensation Act 1999 (NSW) to commence the proceedings;

(b)   the plaintiff’s cost of the notice of motion filed 14 March 2014 be the plaintiff’s costs in the proceedings.

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

  1. LEEMING JA: I agree with the reasons of Gleeson JA and the orders his Honour has proposed. Without detracting from anything his Honour has written, I would add the following short points.

  2. As his Honour points out at [81], it is essential to distinguish between the two time periods specified in s 66(2), regard to which is made necessary by the inquiry required by s 109(3)(a). A full account for the conduct, from the date of accident until the date it is provided, is required to be given. A satisfactory explanation for the delay is also required to be given. The “delay” is the period of time which caused the need for the grant of leave under s 109(1). That is established by authority, and is a natural reading of the language, bearing in mind that s 109(3)(a) is a precondition for the grant of leave made necessary by the expiration of the three year period in s 109.

  3. I agree with Gleeson JA that one way in which error was shown here was by the primary judge failing to distinguish between those two time periods. There was a full account from the plaintiff, at least following his cross-examination, explaining why he did not respond to his solicitor’s letters or attend examination. That took place some months before the 3 year period expired. It cannot be determinative of, and is at best only peripherally relevant to, whether a satisfactory explanation for the delay had been provided. The evidence established that Brydens were responsible for that delay.

  1. Also, as Gleeson JA has observed at [78]-[80], it is not necessary to determine the legal consequence of the filing, on 19 October 2012 of a “CARS Form 2 Application”, and its dismissal, on 5 February 2013, by reason of non-compliance with s 89A, for the purposes of s 109(2). Because a claim is made to an executive authority, rather than a court, the principles in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 do not automatically translate, although those principles are apt to assist. The question is one of construction, involving whether the mandatory prohibitions in Division 1A (“A claim cannot be referred … until”) detract from the calculation of time under s 109(2). On one view, s 109(2) applies only to compliant claims – something which is supported by the fact that s 109(2) presupposes that a certificate as to assessment or exemption is issued. On the other hand, that construction creates what might be regarded as a potential for unfairness if a claim is determined by some other means (perhaps, by being withdrawn, or dismissed). Since it is not necessary to determine the point, which was not in any event the subject of full submissions, it is inappropriate to do so.

  2. Finally, I agree that the respondent’s concession, properly made, as to taking the applicant’s case at its highest means that the agreed threshold of $97,500 for s 109(3)(b) was satisfied, that this Court should itself exercise the power under s 109(1), and that it should do so by a grant of leave.

  3. McCALLUM J: I agree with Gleeson JA that grounds 2 and 3 are made out. As to ground 2, as Gleeson JA has explained, the "domino effect" argument advanced on behalf of Mr Perez and accepted by the primary judge invited the application of a wrong test. It reflects a departure from the test posed by the statute and is more onerous. What the Act requires is justification for delay (having regard to the full explanation for the whole period), not proof that delay was not caused by the applicant. The test to be applied was whether a reasonable person in the applicant's position (with his mental state) would have been justified in experiencing the delay which occurred. I agree, for the reasons given by Gleeson JA, that the applicant satisfied both limbs of the statutory test. I also agree with the additional remarks of Leeming JA. I agree with the orders proposed by Gleeson JA.

**********

Decision last updated: 29 June 2015

Most Recent Citation
Cases Citing This Decision

45

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Cases Cited

11

Statutory Material Cited

2

Eades v Gunestepe [2012] NSWCA 204
Rita Harika v Stanley Tupaea [2003] NSWCA 332
Karambelas v Zaknic (No. 2) [2014] NSWCA 433