Peter Emerton v Rachelle McDonald

[2009] NSWDC 26

CITATION:	Peter Emerton v Rachelle McDonald [2009] NSWDC 26
EX TEMPORE JUDGMENT DATE:	19 February 2009
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. The Proceedings are dismissed. 2. The plaintiff is to pay the defendant’s costs of the motion and those of the proceedings to date. 3. The affidavit materials are returned.
CATCHWORDS:	Dismissal of proceedings – Failure to comply with s 85(4) of the Act in providing information
LEGISLATION CITED:	Motor Accidents Compensation Act 1999
CASES CITED:	Hill v Bolt (1992) 16 MVR 183
PARTIES:	Peter Emerton (Plaintiff) Rachelle McDonald (First Defendant) Orix Australia Corporation Limited (Second Defendant)
FILE NUMBER(S):	244/08
COUNSEL:	Mr Smith (Plaintiff) Mr Cummings (First and Second Defendants)
SOLICITORS:	Turnbull Hill Lawyers (Plaintiff) TL Lawyers (First and Second Defendants)

JUDGMENT

1 In this matter the plaintiff commenced proceedings on 1 August 2008 in respect of an accident that occurred on 8 August 2005. The defendant, by motion, seeks an order dismissing the proceedings on the basis that the plaintiff commenced proceedings in breach of s 85(4) of the Motor Accidents Compensation Act 1999. That section prohibits the plaintiff from commencing proceedings in respect of a claim while the claimant fails, without reasonable excuse, to comply with the obligations imposed upon him or her pursuant to the section. Those obligations involve full co-operation with the defendant or the defendant’s insurer for the purpose of giving the defendant sufficient information concerning certain aspects of the claim.

2 It is apparent that the insurer had sufficient information to be satisfied that the claim was valid and to make an assessment of liability. Liability was denied on 16 November 2005. However, the defendant, in my view, has not been provided with sufficient information to put it in a position to make an informed offer of settlement.

3 It was argued for the plaintiff that sufficient information or the means of obtaining sufficient information was provided to the defendant through the claim form that was submitted on 31 August 2005. The claim form contained as part of the statutory declaration an authority to the insurer to secure further information from various parties including medical service providers and employers or accountants.

4 In this case, the insurer chose to ask the plaintiff to provide it with information concerning his income. In September 2005 the plaintiff was asked to provide a certificate of earnings which was not returned to the defendant. In June 2006 the plaintiff was asked to provide tax returns and notices of assessment for the 2002 to 2005 financial years. That information was not provided. Also in June 2006, the plaintiff was asked to advise if medical assessment had been completed and to provide medical reports. That information was not provided.

5 It was apparent that the plaintiff was not served well by his former solicitor, but there appeared to be no explanation for why the current solicitor, having received the former solicitor’s file over a year before the proceedings were commenced, did not provide the outstanding information.

6 In my view, it has not been established either that the plaintiff co-operated as required by s 85(1) of the Act or that the plaintiff complied with his obligations under s 85(2) to comply with any reasonable request for further information.

7 In those circumstances I do not think that the authorities to which I have been referred by the plaintiff are of assistance to him and I regard myself bound by the decision of the Court of Appeal in Hill v Bolt 1992 16 MVR 183, as it has been applied in subsequent decisions, so that the proceedings must be dismissed.

ORDERS
8 The Proceedings are dismissed.

9 The plaintiff is to pay the defendant’s costs of the motion and those of the proceedings to date.

10 The affidavit materials are returned.

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