Prospero v Farmer

[2020] NSWDC 631

District Court

New South Wales

Medium Neutral Citation:

Prospero v Farmer [2020] NSWDC 631

Hearing dates:

15 October 2020

Date of orders:

23 October 2020

Decision date:

23 October 2020

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraph [44] for orders

Catchwords:

PRACTICE AND PROCEDURE – application by plaintiff pursuant to s 110 of the Motor Accidents Compensation Act 1999 (NSW) seeking reinstatement of her motor accident compensation claim – limits placed on cross-examination of affidavit evidence in an interlocutory application

Legislation Cited:

Motor Accident Injuries Act 2017,

Motor Accidents Compensation Act 1999 (NSW), s 85, s 110(3) and (5)

Uniform Civil Procedure Rules, r 35.2, r 42.1

Cases Cited:

Markisic v Commonwealth of Australia [2010] NSWCA 273

Ren v Jiang [2014] NSWCA 1

Category:

Procedural and other rulings

Parties:

Ninette Prospero (Plaintiff)
Mary Farmer (Defendant)

Representation:

Counsel:
Mr W Carney (Plaintiff)
Mrs C Allan (Defendant)

Solicitors:
PK Simpson (Plaintiff)
McInnes Wilson Lawyers NSW (Defendant)

File Number(s):

2020/165377

Publication restriction:

None

Judgment

Contested interlocutory application by plaintiff

1. By notice of motion filed pursuant to s 110(5) of the Motor Accidents Compensation Act 1999 (NSW) (“MAC Act”), the plaintiff, Ms Ninette Prospero, seeks an order for reinstatement of her personal injury damages claim arising out of a motor vehicle accident on 2 September 2017 where the CTP insurer, Allianz Australia Insurance Ltd, opposes that course on the contended ground that the plaintiff’s claim should be considered to have been withdrawn by reason of the operation of s 110(3) of that Act.

Procedural context

2. On 2 September 2017, the plaintiff was injured in a motor vehicle accident. Her claim for damages in respect of those injuries is governed by the terms of the MAC Act. She sustained serious leg injuries which she claims were caused by the negligence of the defendant, Ms Mary Farmer, the insured driver of the motor vehicle which collided with the plaintiff’s motorcycle when the accident occurred.

3. On 3 June 2020, the plaintiff filed her statement of claim initiating the proceedings. She erroneously purported to do so pursuant to the Motor Accident Injuries Act 2017 (NSW). On 25 June 2020, the defendant filed a defence identifying a factual dispute as to the accident circumstances as well as identifying a legal dispute as to whether the Motor Accident Injuries Act 2017 (NSW) was engaged by the factual circumstances of the claim. In that defence it was claimed, correctly, that the applicable legislation which governed the proceedings was the MAC Act.

4. On 25 June 2020, the plaintiff filed an amended statement of claim in which the jurisdiction of the Court was correctly invoked pursuant to the provisions of the MAC Act. The defendant has not yet filed a defence to that amended statement of claim.

5. The defendant disputes the plaintiff’s entitlement to maintain these proceedings for two reasons, those being first, pursuant to s 110(3) of the MAC Act, the defendant claims that the plaintiff should be taken to have withdrawn her claim by reason of alleged non-compliance with a notice issued by the defendant’s insurer dated 9 August 2019, which required the plaintiff to commence proceedings within 3 months of that date, and secondly, because of an alleged failure of the plaintiff to co-operate with the defendant’s insurer to provide the insurer with sufficient information about her claim: s 85 of the MAC Act. The resolution of those disputes is dependent upon the determination of relevant factual matters.

Evidence

6. The parties provided a joint Court Book (Exhibit “A”) comprising the affidavit evidence and related annexures upon which they relied for the determination of the present application. The plaintiff relied upon her own affidavit sworn on 16 September 2020, and that of her solicitor, Mr Thomas Coxall, sworn on 17 September 2020. The defendant relied upon the affidavit of her solicitor, Mr Adam Abboud, sworn on 30 September 2020.

7. The plaintiff appeared and gave oral evidence via an AVL connection from her present place of residence in Queensland. Counsel for the defendant cross-examined the plaintiff on her affidavit: UCPR r 35.2. That cross-examination was restricted to limited issues in light of the interlocutory nature of the application: Ren v Jiang [2014] NSWCA 1, at [11]; Markisic v Commonwealth of Australia [2010] NSWCA 273, at [31].

Issues

8. As originally formulated, the two issues requiring consideration were first, the question of whether, pursuant to s 85 of the MAC Act, the plaintiff had complied with her duty to co-operate with the CTP insurer, and secondly, whether her circumstances justify an order for reinstatement pursuant to s 110(5) of the MAC Act.

9. In view of the plaintiff’s difficult living circumstances during the period when she did not have legal representation, where her ability to engage in communications was intermittent, the issue concerning s 85 of the MAC Act fell away, leaving the remaining issue of reinstatement to be determined.

10. In the course of argument, the defendant conceded there would be no material prejudice to a fair trial of the issues to be determined in this case if the leave presently sought by the plaintiff was granted.

Material facts

11. The plaintiff is at present, and has for some considerable time been homeless. She has had to deal with circumstances that were described as being tumultuous for her, that description seems apt. She presently resides in emergency accommodation provided to her by the Salvation Army. Her existence has been overshadowed with significant problems in her life.

12. Before the subject accident, and subsequently, the plaintiff has been beset with painful medical-related issues due to the effects of previous and unrelated surgery. The aftermath of those circumstances has caused her to suffer continuing pain which has distracted her attention and her ability to attend to the minutiae of life’s day-to-day tasks.

13. Following the subject accident, in December 2017, she was discharged from hospital after her primary treatment. Until that time, and until February 2018, her mail had been accumulating in a post office box because she had been living in a caravan.

14. Following her discharge from hospital the plaintiff continued to receive medical treatment for the injuries she sustained in the subject accident. The combination of those circumstances and her pre-injury state of health had a debilitating and worrying effect upon her. This interfered with her ability to deal with matters of detail.

15. Before the events giving rise to the present claim, whilst the plaintiff had been residing in Victoria, she had incurred injuries in a motor vehicle accident for which she received compensation from the accident compensation scheme in that State. This occurred without the need for her to consult lawyers.

16. Her dealings with Allianz, the CTP insurer for her present claim, had proceeded upon the basis of a similar but naïve belief on her part that she did not need lawyers to deal with the present claim.

17. In NSW, co-extensively, whilst seeking to deal with Allianz to advance her claim in order to seek payment for the treatment she required, in 2019, the plaintiff was largely pre-occupied with seeking to avoid eviction from premises, she was unsuccessful in those attempts.

18. As a result the plaintiff became homeless. Between November 2019 and March 2020 she lived in a tent in a National Park. During her period of homelessness her resources were extremely limited. She had limited access to mail, telephone and email communication until she obtained assistance from the Salvation Army.

19. It is against those background circumstances that the plaintiff’s intermittent dealings with Allianz took place in the course of her attempts to advance her present claim. That is, until she engaged her present solicitors in February 2020, from which time they took over communications with Allianz.

20. The reason the plaintiff contacted her solicitors was that she was concerned to know of her options for obtaining specialist medical treatment for the significant ongoing and painful effects of her injuries. Prior to receiving that advice she did not understand the implications of relevant correspondence she had received from Allianz, in particular, the letter dated 9 August 2019.

21. Since the engagement of her solicitors, the procedural chronology of events has been unremarkable and not requiring explanation. The plaintiff’s statement of claim was filed on 3 June 2020. From that time there have been no procedural delays requiring explanation.

22. Since February 2020, apart from unavoidable delays relating to COVID-19 issues, there have been no material delays in the pursuit of her claim. However, in this application the issue of delay requires a full and satisfactory explanation for her non-compliance with a notice given to her by Allianz: s 110(5) of the MAC Act.

23. In the paragraphs that follow, the chronology of the plaintiff’s circumstances, including the effect of her dealings with Allianz, is set out for the purpose of the required consideration.

24. On 11 April 2018, Allianz wrote to the plaintiff denying liability for her claim based, inter alia, on a police report which the plaintiff claimed was incorrect. That letter invited the plaintiff to contact the Claims Advisory Service but noted that Service would not provide her with legal advice: Exhibit “A”, Tab 2.1, pp 37 – 38.

25. On 9 August 2019, Allianz wrote to the plaintiff: Exhibit “A”, Tab 2.1, pp 39 – 40. The plaintiff did not receive that letter until a further 8 weeks had passed. She was living in Queensland at the time and was unable to identify the date of receipt with precision. For the present purposes of analysis, it can be assumed the 3 month notice then commenced to run from 9 October 2019, that is, requiring the plaintiff’s proceedings to be commenced by 9 January 2020: T6.25 – T6.37. That did not occur.

26. Some of the communications between the plaintiff and Allianz were by telephone, and some proceeded by way of email whenever the plaintiff had internet access. The course and content of those communications proceeded with a degree of inefficiency because of a number of changes in Allianz personnel who were handling the plaintiff’s claim. The unchallenged content of the plaintiff’s account of those communications indicates that there was a degree of lack of consistency in those communications.

27. On or about, or shortly after 16 October 2019, the plaintiff received an email from Allianz. It seems that Allianz had extended the plaintiff’s date for compliance with the previous s 110 notice. The October 2019 correspondence shows that Allianz advised the plaintiff the new expiry date for the s 110 notice was 9 November 2019, Allianz also repeatedly stressed to the plaintiff that it was important that she seek legal advice. The last letter in those terms, sent by email, was dated 25 October 2019: Exhibit “A”, p 130.

28. At that time the plaintiff was confused about the requirements and did not have legal assistance for this claim. She lived in Queensland in difficult circumstances and needed legal assistance on matters concerning NSW law.

29. On 4 February 2020, the plaintiff emailed Allianz to advise she had not received certain documents, she had not yet engaged legal assistance for this matter but she was in the process of doing so. She also asked for a copy of the police report dealing with the subject accident.

30. At this point it should be noted that the plaintiff was also involved in QCAT proceedings over a tenancy matter in respect of which she was self-represented. This was doubtless a further source of unhelpful distraction and preoccupation for her.

31. On 4 February 2020, Allianz emailed the plaintiff to advise that the previously issued s 110 notice had expired, but in that communication it was noted that the plaintiff had advised that she had legal representation. In the circumstances, Allianz advised the plaintiff that if she did not provide details of her legal representatives within 28 days, that is, by 3 March 2020, it would proceed to close its file in relation to her claim: Exhibit “A”, p 129. In my view, that communication should be construed as a waiver of the previously expired notice period.

32. In the meantime, the plaintiff had retained her present solicitors.

33. On 10 March 2020, the plaintiff’s solicitor sent Allianz an email in the following terms:

“Thank you for your email and for providing a copy of the claimant’s file.

We confirm we are instructed to pursue this matter and to commence proceedings in the District Court in due course.

Our client instructs she did not understand the effect of your s110 notice and unfortunately only first sought legal advice in early February 2020. She had never before sought or received advice from a lawyer prior to the expiration of your s110 notice. She instructs she was awaiting final confirmation from the police regarding the outcome of her ongoing enquiries, for which she only received a response after the s110 deadline had expired.

We are also instructed the claimant is presently homeless and has had a tumultuous past 6 months. These issues will be fleshed out and ventilated in further evidence to be provided.

In the circumstances, we kindly ask whether the insurer will withdraw the s110 notice. This would avoid the time and costs involved for the parties in proceeding to a Summons or Notice of Motion to ventilate the s110 breach.

If the s110 notice is withdrawn, the claimant should then be able to commence proceedings within the requisite 3 year period from the date of accident prior to 2/9/2020.”

[Exhibit “A”, pp 125 – 126]

34. On 14 April 2020, Allianz wrote to the plaintiff’s solicitor advising it could not withdraw the s 110 notice. Nevertheless, the following indication was given by Allianz:

“Noting the circumstances however, we agree not to take issue with the breach of that notice if proceedings are lodged by your client within 1 month of this email (close of business 12/04/2020). If this occurs, we will agree to consent orders to that effect.

Please note however that ultimately this will be a matter for the court.”

[Exhibit “A”, p 125]

[Emphasis as in the original text]

35. On 14 April 2020, the plaintiff’s solicitor emailed Allianz to advise that he had incurred an unfortunate delay in advancing the matter because he had been required to self-isolate due to COVID-19 and other uncontrollable factors that had kept him away from his office. In those circumstances, an extension was sought from Allianz: Exhibit “A”, p 123.

36. In response to that request, later that same day, Allianz advised the plaintiff’s solicitor that it would not take issue with breach of the s 110 notice if proceedings were filed by 14 May 2020: Exhibit “A”, p 122.

37. Unfortunately, due to intervening practical difficulties in conferring with the plaintiff who was in a remote location and a need to consider relevant evidence, where COVID-19 factors also had an impact on delay, the plaintiff’s solicitor found he was unable to comply with that extension. On 3 June 2020 the plaintiff’s solicitor advised Allianz of those circumstances: Exhibit “A”, p 119.

38. The plaintiff’s solicitor’s 3 June 2020 email to Allianz included the following text in addition to the above explanation:

“We note you will now be taking issue with the s110 breach and we will therefore commence preparing for the inevitable notice of motion.

We do note your earlier concession that you would not take issue with the s110 breach and whilst we appreciate that was on the proviso pleadings would be lodged sooner, we maintain the additional time was required in order to properly consider the entirety of the evidence end confer with the plaintiff and counsel in circumstances where COVID19 has played a significant factor in the delay.

We also maintain that the additional time that has transpired since your deadline of 14/5/2020 and now, has not in any way prejudiced the insurer.

We thereby put you on notice that we will reserve our right to seek the costs of any notice of motion on the basis you issued a s110 directive on an unrepresented injured claimant, where the appropriate course of action in those circumstances should have been to simply advise the injured person legal proceedings would need to be commenced within 3 years of the date of the subject accident.

We reserve our right to rely on this email on any question concerning costs.”

[Exhibit “A”, p 119]

39. In response, Allianz advised the plaintiff’s solicitor it took the view that ultimately, the question of whether the plaintiff was able to bring these proceedings was a matter for the Court to decide: Exhibit “A”, p118.

40. The plaintiffs’ statement of claim was filed on 3 June 2020. Ultimately, the plaintiff’s proceedings were filed 18 days after the re-set 14 May 2020 extension, hence the need for the present notice of motion.

Legislation

41. Section 110 of the MAC Act provides:

110 Insurer may require claimant to commence court proceedings

(1) The insurer of a person against whom a claim is made may give the claimant notice requiring the claimant to commence court proceedings in respect of the claim if:

(a) the claimant has been entitled to commence the proceedings for a period of at least 6 months, and

(b) at least 18 months have elapsed since the date of the motor accident to which the claim relates.

(2) The claimant must comply with the notice within 3 months after its receipt.

(3) If the claimant does not comply with the notice as required by this section, the claimant is taken to have withdrawn the claim.

(4) A claimant whose claim is taken to have been withdrawn by the operation of this section may apply to a court of competent jurisdiction for reinstatement of the claim.

(5) The court may reinstate the claim if the court is satisfied that the claimant has a full and satisfactory explanation for the failure to comply with the notice.

Consideration and disposition

42. I find that the plaintiff’s circumstances as described earlier in these reasons provide the Court with a sufficiently full and satisfactory explanation for her earlier non-compliance with a notice from the insurer requiring her to commence proceedings. In those circumstances, I consider that the discretion conferred on s 110(5) of the MAC Act should be exercised in her favour. I therefore propose to grant the relief that she seeks in this application.

Costs

43. As the plaintiff has succeeded in obtaining a grant of the leave she has sought, pursuant to UCPR r 42.1, I consider that she should have an order that the defendant pay her costs of the application on the ordinary basis. The plaintiff’s solicitor foreshadowed an application for costs. The matter at issue in this application could have been the subject of consent orders that could have been made at a lesser cost than the costs which have been incurred.

Orders

44. I make the following orders:

1. Pursuant to s 110(3) and (5) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff’s motor accident claim arising from injuries she sustained on 2 September 2017 is reinstated;

2. The defendant is to pay the plaintiff’s costs of the notice of motion filed on 7 August 2020 on the ordinary basis;

3. The exhibits may be returned;

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

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Decision last updated: 23 October 2020