Hanan Al-Rawahi v Mohammad Ali Niazi

[2006] ACTSC 84

HANAN AL-RAWAHI v MOHAMMAD ALI NIAZI [2006] ACTSC 84 (15 September 2006)

PRACTICE AND PROCEDURE – ss51 & 59, Civil Law (Wrongs) Act – applicant’s failure to serve notice of claim – “reasonable excuse” – when is respondent “identified”
PRACTICE AND PROCEDURE – s51(1)(c)(ii), Civil Law (Wrongs) Act – discretion of court to authorise complainant to proceed – considerations to which court should have regard in making order – effect of making or refusing orders on parties – general consideration of interests of justice
WORDS AND PHRASES – “reasonable excuse” – “identified”

Civil Law (Wrongs) Act 2002, ss51, 59 & 62
Road Transport (General) Act 1999, s193
Motor Accidents Act 1988 (NSW)
Workers Compensation Act 1987 (NSW)
Human Rights Act 2004, s21

McGregor v Franklin [2006] ACTSC 69
Itek Graphix Pty Limited v Elliott [2002] NSWCA 442
Russo v Aiello (2003) 215 CLR 643

No.  SC 652 of 2006

Judge:             Master Harper
Supreme Court of the ACT

Date:              15 September 2006

IN THE SUPREME COURT OF THE       )
  )          No.  SC 652 of 2006
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:HANAN AL-RAWAHI

Applicant

AND:MOHAMMAD ALI NIAZI

Respondent

ORDER

Judge:  Master Harper
Date:  15 September 2006
Place:  Canberra

THE COURT ORDERS THAT:

1. The applicant be authorised to proceed further with her claim against the respondent in relation to personal injury despite her non-compliance with the requirements of section 51 of the Civil Law (Wrongs) Act 2002.

1. The respondent’s costs of the application be paid by the applicant.

1. On 19 February 2004 the applicant was struck by a car driven by the respondent on a pedestrian crossing on Eastern Valley Way, Belconnen. She seeks an order under section 59 of the Civil Law (Wrongs) Act 2002 authorising her to proceed further with a claim for damages for personal injury despite her non-compliance with the requirements of section 51 of that Act in relation to the giving of written notice of the claim to the respondent within the time specified by the section.

1. In her originating application, she seeks in the alternative a declaration that she has remedied the non-compliance: her counsel concedes that she has not done so and that she is not entitled to such a declaration.

1. The relevant portions of section 51 are as follows:

51 Notice of claim

(1)   Before a claimant brings a proceeding against someone else (a respondent) based on a claim in relation to a personal injury, the claimant must give the respondent written notice of the claim.

(2)    The notice must—

(a)contain a statement of the information required by regulation; and

(b)authorise each of the following to have access to the records and sources of information relevant to the claim that are required by regulation:

(i) the respondent;

(ii)  if the respondent is insured against the claim—the respondent’s insurer for the claim; and

(c) be accompanied by the documents required by regulation.

(3)   The notice must be given within the period that ends on the earlier of the following days:

(a) the day that is 9 months after—

(i)  the day the accident giving rise to the personal injury happened; or

(ii)  if symptoms of the injury are not immediately apparent— the day symptoms of the injury first appear;

(b)the day that is 4 months after the later of the following days:

(i)  the day the claimant first instructs a lawyer to provide advice about seeking damages for the personal injury;

(ii) the day the respondent is identified.

(4)   If the claimant is a child, the claimant’s parent or legal guardian may give the notice for the claimant.

(5)   If the notice is not given within the period required under subsection (3), a reasonable excuse for the delay must be given in the notice or by separate written notice to the respondent.

(6)   Without limiting subsection (5), an excuse is reasonable if it is prescribed by regulation for this section.

(7)   If the respondent knows of anyone else (a relevant person) against whom a proceeding based on the claim may be begun by the claimant, the respondent must, within the period prescribed by regulation (or, if no period is prescribed, within 1 month after the day the respondent receives the notice)—

(a)give a copy of the notice to each relevant person; and

(b)tell the claimant in writing about each relevant person and give the claimant a short written statement explaining why each of them may be a relevant person.

(8)   If the respondent is a child, the respondent’s parent or legal guardian may comply with subsection (7) for the respondent.

1. Section 59 provides as follows:

59       Claimant’s failure to give complying notice of claim

(1)   If a claimant does not give a complying notice of claim, the claimant cannot proceed further with the claim unless—

(a)           the respondent to whom notice of the claim was purportedly given—

(i)  has given the claimant a written notice to the effect that the respondent is satisfied the notice is a complying notice of claim or the claimant has taken reasonable action to remedy the noncompliance; or

(ii)      is presumed, under section 54 (3) (Respondent’s response to notice of claim), to be satisfied the notice is a complying notice of claim; or

(b)           the respondent has waived any noncompliance; or

(c)           the court, on application by the claimant—

(i) declares that the claimant has remedied the noncompliance; or

(ii)      authorises the claimant to proceed further with the claim despite the noncompliance.

(2)   An order of the court under subsection (1) (c) may be made on conditions the court considers necessary or appropriate to minimise prejudice to a respondent from the claimant’s noncompliance.

1. The only provision of the Act as to the consequences of non-compliance is section 62, which provides sanctions in relation to costs and interest. However, it seems to me that a Court in which proceedings were brought would be obliged on application to give some effect to section 59, perhaps by staying an action until the non-compliance has been dealt with under the section.

1. The plaintiff instructed her solicitors on 25 March 2004. She was at that time unable to provide the solicitors with any details of the vehicle at fault. The solicitors applied on 5 April 2004 for a police report. They received a response in the following terms:

I refer to your correspondence of 5 Apr 2004 requesting a copy of the police report relating to a motor vehicle accident involving: Mohammad Niazi – Alison Nash – Nanan [sic] Al-Rawahi.

I regret that the copy of the report you seek is still not yet available as police have not completed their inquiries into this matter.

Arrangements have been made to provide you with such a copy when it becomes available.

1. Ms Nash was a friend of the claimant who was also struck and injured. The solicitor having the conduct of the matter suspected that Mohammad Niazi was probably the driver of the vehicle at fault. She wrote to the police again on 24 May and 6 August 2004 and 10 February 2005, following up her request for a copy of the police report. She eventually received the report on 23 February 2005. The report gave details of the accident, including the name of the driver at fault, Mohammad Ali Niazi, his licence number and residential address, and the make and registration number of the car he had been driving.

1. At the beginning of September 2004 there was, I infer, some discussion between the claimant and her solicitor about the identity of the driver. It seems that the claimant had been making her own inquiries in this regard. On 3 September 2004, she sent an email to the solicitor giving a business address at the University of Canberra for Ali Niazi, with a business telephone number and a mobile number. On 8 September, the claimant completed a notice of claim on a form provided by the Law Society of the Australian Capital Territory, with provision for the information required under section 51. On 9 September, the solicitors prepared a letter addressed to Ali Niazi at the University of Canberra address, to be served with the notice of claim, and instructed a firm of process servers to serve it on him. The process servers attended at the address on 14 September. They were told that Mr Niazi was not at work and was going overseas. They called the mobile number and spoke to Mr Niazi, who said that he was in Kuwait and was due back on 31 October 2004. He gave them his residential address, which turned out to be the address shown in the police report. The process servers conveyed this information to the solicitors, noting that there was another telephone number listed for A Niazi in the White Pages online website. They concluded “We now hold the process pending your further instructions.”

1. The solicitors concede that they did not follow up further with the process servers. Personal service of the notice of claim has never been effected on the respondent.

1. On 25 February 2005, the applicant sent an email to the solicitor. Ms Nash had asked the applicant to accompany to an interview at NRMA, and Ms Nash’s solicitor also wished to speak to her. She asked whether it was in order to attend the meeting. Coincidentally, the solicitors had received the police report two days earlier.

1. On 3 March 2005, Alison Nash made a signed statement to Moreys Investigations Pty Ltd, a firm of insurance claim investigators acting on instructions from NRMA Insurance. She described the collision and her injuries and initial treatment. She mentioned the applicant by name and said that the applicant had suffered more serious injuries, including a fractured pelvis, and still suffered from pain and problems with the left knee. Ms Nash had had a brief conversation with the driver of the vehicle involved but had not got his name or any other details.

1. On 7 March 2005, Mr McKoy of Moreys sent a fax to the applicant’s solicitors reading as follows:

We act for the NRMA in the above matter which relates to a motor vehicle collision on 19 February 2004. We have been instructed to seek an interview with Hanan Al-Rawahi regarding that collision. Jennifer Gregory is our Canberra representative and will conduct the interview once you have authorised it … we respectfully seek your approval to interview Hanan Al-Rawahi.

1. The only heading of the fax was “NRMA CTP claim”. There was no reference in the fax to Ms Nash or to the respondent. The applicant’s solicitor’s evidence is that she assumed from the fax that Moreys had been instructed to investigate the extent of the applicant’s injuries and to advise NRMA as to its potential liability to her. In the circumstances this does not seem to me to have been an unreasonable assumption. On 18 March 2005 the applicant’s solicitor replied to Moreys in the following terms:

NRMA CTP claim

Hanan Al-Rawahi

Thank you for your facsimile of 7 March 2005 advising that you are assessing the claim in Hanan Al-Rawahi’s case. Hanan is an international student from the Middle East and we have taken a statement from her and propose to make that available to you if you like. She has already had enough interruption to her studies and her family are anxious to diminish the interference so we are not inclined to authorise any further interview as she has been quite distressed by the whole affair. I will send you the statement shortly and perhaps we can discuss this.

1. On 24 May 2005 the applicant flew home to Oman to stay with her family and recover from her injuries. She returned to Canberra on 17 July 2005.

1. By 11 August 2005 the plaintiff’s solicitors had heard nothing more from Moreys. On that date the applicant’s solicitor telephoned Mr McKoy and asked whether he had a copy of the notice of claim. He replied by fax on the same day advising that his firm had not been served with a notice of claim, and that any further queries should be directed to NRMA. He quoted a claim number and telephone number at NRMA Insurance.

1. Following initial telephone contact with the NRMA claims officer, the plaintiff’s solicitors sent the notice of claim to NRMA by fax on 16 August 2005.

1. On 26 August 2005 NRMA wrote to the plaintiff’s solicitors. They asserted that the notice of claim had been received outside the statutory time limit. They drew attention to section 51 of the Civil Law (Wrongs) Act. They demanded an explanation for the late lodgment, and a full account of the applicant’s conduct, including actions, knowledge and belief, from the date of the accident until the date of the explanation. They asked that the explanation be in the form of a statutory declaration.

1. They went on in the same letter to ask for information, to be provided by 30 September 2005, about the accident and the applicant’s injuries and treatment. They asked for a signed authority in relation to medical, hospital and ambulance records, and copies of any medical certificates. The letter included a statement in the following terms: “the explanation is not satisfactory unless a reasonable person in the position of the claimant would have failed to comply with Section [sic] or have been justified in experiencing the same delay”. I can find no statutory warrant for this statement: fortunately the applicant was represented by solicitors who can be assumed to have a sounder grasp of statutory interpretation that an insurance company claims clerk, and it is not suggested that the applicant was misled by it.

1. The applicant’s solicitors responded by letter on 30 September 2005, providing the information requested and forwarding the original notice of claim and a signed authority. They also enclosed a copy of the Canberra Hospital clinical notes, a copy of a report by a surgeon, and a copy of the police report. In addition, they attached a statutory declaration made by the applicant on 28 September 2005 purporting to provide a reasonable excuse for the delay as envisaged by section 51(5). The applicant in the declarations set out the factual background to the matter.

1. On 6 October 2005, an assistant claims manager with NRMA wrote to the plaintiff’s solicitors, stating that the applicant’s excuse was not accepted. She asserted that there had been no reason that the claim could not be lodged without the police report.

1. Further correspondence took place which is not in evidence and is not said by either party to be relevant to the present application. This culminated in a letter of 12 May 2006 from the respondent’s solicitors confirming their instructions to oppose the orders sought.

1. There is little authority as yet as to what will or will not amount to a reasonable excuse for delay in giving notice under section 51(5), or as to the principles a court should apply in considering whether or not to make an order under section 59(1)(c).

1. As I pointed out in McGregor v Franklin [2006] ACTSC 69 at para 32, section 51 requires the notice before action to be given to the respondent, not the insurer. This is the position even, as here, where insurance is compulsory by statute. In the present case, as in McGregor, the named respondent will be the appropriate defendant in a subsequent action for damages. There will usually be no cause of action against the insurer. As I explained in that paragraph, compliance with section 51 is not guaranteed to bring the claim to the attention of the insurer immediately or at all. If the defendant does not pass the notice on to the insurer, the insurer may not find out about it until served with a copy of the originating process, as is required in motor vehicle cases by section 193 of the Road Transport (General) Act 1999. This being so, compliance with section 51 of the Civil Law (Wrongs) Act will not necessarily put the insurer in any better position than it would have been absent the section.

1. In the present case, as in McGregor, the respondent has not been served personally with a notice. I raised the possibility in McGregor of achieving the intention of the legislation by staying proceedings until personal service of the notice and accompanying documents had been effected upon the defendant. It did not seem to me that a stay for that purpose would achieve much in practical terms, and the same observation applies here. It is the insurer, NRMA in this case, which will be liable for any damages recovered by the applicant, and which will have the carriage of any action by the applicant against the respondent.

1. Counsel for the respondent placed some reliance on a judgment of the Court of Appeal of the Supreme Court of New South Wales (Spigelman CJ, Sheller JA and Ipp AJA), Itek Graphix Pty Limited v Elliott [2002] NSWCA 442. The Court of Appeal set aside an order of a District Court judge extending the limitation period for the bringing of an action by an employee against an employer for workplace injuries. It does not seem to me that that decision is of assistance for present purposes. Action there had been commenced outside a limitation period, and the decision did not deal with any issue relating to failure to give a notice before action. Additionally, the provisions of the Workers Compensation Act 1987 (NSW) are quite different to those governing the present application.

1. Counsel for the respondent also relied on Russo v Aiello (2003) 215 CLR 643, a decision of the High Court of Australia dismissing an appeal from the NSW Court of Appeal relating to the principles to be applied by a court in attaining satisfaction, on an application for dismissal of proceedings, that a claimant did not have a full and satisfactory explanation for a delay in making a claim to which the Motor Accidents Act 1988 (NSW) applied. Again, the judgment deals with the construction of NSW legislation which is in quite different terms to the present Act. To use an example, the words used in the Motor Accidents Act, “full and satisfactory explanation”, have been the subject of numerous decided cases, including Russo v Aiello. The legislature of the Territory must have been taken to have chosen quite deliberately to use the words “reasonable excuse” rather than the words “full and satisfactory explanation”. It seems clear that the NSW test was intended to be markedly more onerous than the test under the Civil Law (Wrongs) Act.

1. To comply with section 51, the applicant was required to give notice to the respondent, at the latest, nine months after the accident. She first saw a solicitor on 25 March 2004, and would have been required to give notice within four months of the later of that date and the date the respondent was identified. If time had run from the first consultation with her solicitors, the latest date for notice would have been 25 July 2004. If the respondent was identified subsequently to that first consultation, time would run from the date of identification, if within the nine-month period. The latter expired on 19 November 2004.

1. It is necessary to interpret the words “the day the respondent is identified”. They are expressed in the passive voice. They provide no assistance as to whose identification process is referred to. In construing the words, it should be remembered that the provisions are not limited to motor vehicle collisions. They apply to all actions for damages for personal injury. They are not limited to injuries in respect of which the potential defendant is insured. They are not limited to injuries one might expect to be the subject of an investigation by police or some other government instrumentality. There is thus no objective identifying agency common to all injury claims. In the circumstances the words, to be given a meaning which will be applicable to all injury claims, must be taken to mean identification by the injured person or the legal representatives or other relevant agents of the injured person.

1. It seems to me that for the purposes of the section, the defendant was identified on 3 September 2004, the date of the email from the applicant to her solicitor giving the respondent’s business address and telephone numbers. I infer that the applicant must have been conducting inquiries of her own, and ascertained the information on 3 September. I am satisfied that it is the kind of information which she would have transmitted by email immediately to her solicitor. This means that a period of four months after the date the respondent was identified did not lapse until after the nine-month time limit, which, as I have said, expired on 19 November 2004. That date is accordingly the relevant date for the purposes of section 51.

1. I am satisfied that at that date, neither the applicant nor her solicitors had any details about the vehicle the respondent had been driving at the time of the collision, and that the solicitors came into possession of that information only on receipt of the police report on 23 February 2005.

1. The solicitors acted promptly on being provided by the applicant with the details about the respondent. They got the applicant in and had her complete and sign a notice of claim within a few days, and instructed a process server to effect service. As it turned out, the respondent was overseas. At the date of attempted service, 14 September 2004, the applicant was well within time. The report from the process server, dated 23 September 2004, contained information that the respondent was expected back in Canberra on 31 October 2004. The process servers said that they would hold the notice pending further instructions. We do not know whether the respondent in fact returned to Australia on 31 October 2004. If he did, there was a window of opportunity, between then and 19 November 2004, when the notice could have been served on him in time. With the benefit of hindsight, it can be said that the applicant’s solicitors should have realised this and taken such steps as they could to effect service. It seems to me likely that the importance of that window of opportunity was not evident to the solicitors at the time.

1. Further service on the respondent was not attempted. The solicitors have exposed themselves to some criticism about the delay from 23 September 2004 until they received the police report on 23 February 2005. It should be borne in mind that whilst they had an address for the respondent, they had no information about the registered number of his vehicle and thus no way of identifying its authorised insurer. If served with the notice the respondent might or might not have complied with his obligation to deliver it to NRMA.

1. In March 2005, the investigators for NRMA, Moreys, came into the matter. I accept that their first fax to the applicant’s solicitors misled the latter into assuming that Moreys had been instructed to investigate the applicant’s claim. However, there was again a delay of some months before, apparently under some misapprehension, the solicitor telephoned Mr McKoy of Moreys and asked whether he had a copy of the notice of claim. Not surprisingly, he replied immediately by fax that his firm did not have a notice of claim. It is clear that no notice of claim by that date had been served on anyone. Within days of that conversation and fax, the applicant’s solicitors contacted NRMA and sent the notice of claim to them.

1. Counsel for the respondent does not complain about the continuing omission to serve the respondent personally with the notice. Counsel accepts the date of service on NRMA, 16 August 2005 as the date the notice was given for the purposes of section 51. There is thus a delay of about nine months. Having set out the events in chronological order, one can understand how it came about. A preliminary question which arises is whether the excuse which was contained in the applicant’s statutory declaration of 28 September 2005 amounted to a reasonable excuse for the delay. Because the police report was still not available, any notice given in time would not have contained important information, in particular the registration number of the respondent’s car. It can be assumed that the insurer would have been unable to complete its inquiries into liability until the police report became available the following February. Counsel for the respondent concedes that the delay has occasioned no prejudice to the respondent or to the insurer.

1. There seem to me to be three issues relevant to the question of excuse and to the length of the delay. The first is the failure of the solicitors to realise the importance of the contents of the process servers’ report of 23 September 2004, including the expected date of return to Canberra of the respondent and the fact that the process servers were holding the notice pending further instructions. The second is their failure to appreciate that time for service of the notice would run out on 19 November 2004, and to treat the matter as one of urgency as that date was approaching. The third failure was not to conduct a motor registry search immediately on receipt of the police report to check that the defendant’s vehicle was registered and insured at the date of the accident, and to provide a copy of the notice and other documentation to the authorised insurer as soon as it was identified. Whilst there is no obligation to serve a notice of claim on an insurer, prompt provision of relevant documentation to an insurer at an early stage will be a highly relevant factor in deciding whether in the interests of justice a plaintiff who has not complied with the notice requirements of the legislation should be permitted to proceed with an action.

1. No action for damages for personal injury has yet been commenced. The limitation period for such an action would expire three years after the date of the injury: Limitation Act 1985, section 16B. The applicant is thus still within time to commence an action should the court authorise her to proceed further with her claim.

1. It seems to me that the failure of the applicant’s solicitors to make any further attempt to serve the notice of claim on the respondent after his return to Australia and prior to 19 November 2004 militates against any objective finding that the applicant’s excuse for not giving the notice in time was reasonable. After 19 November 2004, the applicant remained under a continuing obligation to give the notice although out of time, if she intended to pursue her claim. It does not appear to me that there is objectively any reasonable excuse for the delay between receipt of the police report and delivery of the notice nearly six months later, except for the short period which would have been taken up in conducting a motor registry search, confirming insurance and identifying the insurer. It was reasonable of the insurer, in its letter of 26 August 2005, to ask for an explanation for the delay (though not, perhaps, in quite such peremptory terms). The rejection by NRMA of the excuse, however, seems to have been based on an expectation that the notice of claim should have been served on NRMA rather than on the respondent, and does not seem to have taken account of the fact that that would not have been possible until the police report was available.

1. The exercise of the jurisdiction conferred on the Court by section 59 is not, however, conditional upon the applicant having had a reasonable excuse for a delay in service of a notice of claim. It is clear from subsection 59(2) that prejudice to a respondent is one factor to which the Court is to have regard. It seems to me that the section confers on the Court a discretion to grant or refuse an application, which is to be exercised judicially having regard to the circumstances of each case. It would not, in my view, be appropriate for me to seek to develop principles governing the exercise of the discretion which might fetter its exercise in some future case. It should be exercised after considering the effect of making or refusing the orders sought on both parties, and considering generally the interests of justice.

1. As the discretion is conferred by statute, it is also appropriate when exercising it to have regard to the Human Rights Act 2004. Section 21 of that Act provides for the right to a fair trial. The section relevantly provides that “Everyone has the right to have … rights and obligations recognised by law … decided by a competent, independent and impartial court or tribunal after a fair and public hearing”. In an application such as this, where the claimant’s right to bring an action for damages for personal injury is at stake, this provision suggests that if there is any doubt, the Court should err in favour of ordering that the claimant be allowed to pursue her claim.

1. In the present case, the insurer is now in possession of all of the material it would have had if a notice had been served in time. No prejudice has been occasioned to the respondent or the insurer by the delay. Some delay was inevitable in any event by reason of the delay in the police report becoming available, perhaps itself occasioned by the respondent’s absence from Australia for a time. The applicant has herself been out of Australia to spend time with her family while recuperating.

1. This is a case where a pedestrian has been struck on a marked crossing by a car. Without seeking to prejudge the issue of liability, I note from the police report that the respondent was to be prosecuted for “furious/reckless/dangerous driving”. If I were to refuse the order sought, the applicant would go without a remedy for her apparently serious injuries, including a fractured pelvis, and the respondent would escape civil liability. So would the insurer, which has accepted a premium for the very risk which has eventuated.

1. I am mindful that the legislature has provided in section 62 for the consequences of noncompliance with the obligation to serve a complying notice of claim. A plaintiff who has failed to comply may be penalised in interest and in costs. These will be options available to the trial judge should the plaintiff commence and proceed with an action. I am persuaded that she should not be deprived of the opportunity to do so. There will be an order authorising the claimant to proceed further with the claim despite her failure to give the respondent a complying notice of claim.

1. The applicant comes to the court seeking an indulgence. The respondent has been in no way unreasonable in opposing the application. The applicant should pay the respondent’s costs of the application.

   I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

   Associate:

   Date: 15 September 2006

Counsel for the applicant:  Mr B C Collaery
Solicitors for the applicant:  Collaery Lawyers
Counsel for the respondent:  Mr G P McNally
Solicitors for the respondent:  Moray & Agnew
Date of hearing:  1 September 2006
Date of judgment:  15 September 2006