Syed v Cic Allianz Insurance Ltd

[2021] NSWDC 20

District Court

New South Wales

Medium Neutral Citation:

Syed v CIC Allianz Insurance Ltd & Anor [2021] NSWDC 20

Hearing dates:

4 February 2021

Date of orders:

18 February 2021

Decision date:

18 February 2021

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraph [74] for orders.

Catchwords:

PRACTICE & PROCEDURE – application by insurer for the Nominal Defendant to dismiss plaintiff’s proceedings against that defendant for non-compliance with statutory requirements

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW), 34(1AA), s 34A(5), s 66(2), s 70(1), s 70(7), s 72(1), s 73(7), s 85(4), s 109(1)(a), s 109(3) and s 134

Cases Cited:

Bonnici v GIO (NSW Court of Appeal, unreported, BC 9505231, 16 August 1995)

Brierley v Ellis [2014] NSWCA 230

Harrison v Nominal Defendant (1975) 7 ALR 680; (1975) 50 ALJR 330

Hill v Bolt (1992) 28 NSWLR 329

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

Nominal Defendant v Meakes [2012] NSWCA 66

The Nominal Defendant v Ross [2014] NSWCA 212; (2014) 87 NSWLR 238

Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408

Workers’ Compensation Nominal Insurer v Nominal Defendant [2013] NSWCA 301

Category:

Procedural rulings

Parties:

Ali Shah Shahid Syed (Plaintiff)
CIC Allianz Insurance Ltd for Nominal Defendant (First defendant)
Roads and Maritime Services (Second defendant)

Representation:

Counsel:
Mr S Dehsabzi, solicitor for the plaintiff
Mr J Guihot (First defendant)
Mr M Gerathy, solicitor for the second defendant

Solicitors:
Dehsabzi Lawyers (Plaintiff)
McInnes Wilson (First defendant)
Makinson d’Apice (Second defendant)

File Number(s):

2020/224062

Publication restriction:

None

Judgment

Notice of motion seeking dismissal of proceedings

1. In these proceedings, filed by the plaintiff Mr Ali Shah Shahid Syed, on 31 July 2020, the first defendant, CIC Allianz Insurance Limited, the insurer allocated by the State Insurance Regulatory Authority (SIRA) to represent the interests of the Nominal Defendant, filed a notice of motion on 29 September 2020 seeking a dismissal of the plaintiff’s proceedings on account of failures by the plaintiff to comply with a series of statutory provisions, namely, s 34(1AA), s 34A(5), s 70(1), s 70(7), s 72(1), s 73(7), s 85(4), s 109(1)(a) and s 109(3) of the Motor Accidents Compensation Act 1999 (NSW) (“MAC Act”).

Background to the application

2. On 20 July 2016, the plaintiff sustained injuries in a motor vehicle accident. He claims his injuries were due to fault on the part of the driver of an unidentified motor vehicle. He also claims there was fault on the part of the second defendant, Roads and Maritime Services, concerning the configuration of the roadway where the accident occurred.

3. In this present application the Nominal Defendant seeks to have the proceedings dismissed on the statutory grounds identified above. The second defendant, which appears but has yet to file a defence, does not support the Nominal Defendant’s application for dismissal as the plaintiff’s claimed failure to comply with the identified statutory provisions does not affect his claim against the second defendant.

Evidence on the application

4. In support of the application the first defendant relied upon the affidavit of its solicitor, Mr Adam Abboud, sworn on 28 September 2020. In his resistance to the application, the plaintiff relied upon an affidavit of his solicitor, Mr Sayar Dehsabzi, sworn on 13 November 2020. That affidavit annexed an affidavit from the plaintiff sworn on 13 November 2020. The affidavits annexed relevant claim forms, medical reports and correspondence. The respective deponents were not required for cross-examination.

Rejection of plaintiff’s application to re-open to call further evidence

5. In the course of argument, after hearing submissions advanced on behalf of the Nominal Defendant, the solicitor for the plaintiff sought leave to re-open to call oral evidence from the plaintiff as to the physical and psychological effect of the plaintiff’s injuries. It was suggested that such matters had impacted upon the plaintiff’s ability to comply with the cited statutory requirements for motor accident claims. The proposed further evidence was not the subject of medical opinion evidence served in the plaintiff’s case.

6. The plaintiff’s application to re-open was opposed by the first defendant. After hearing argument on the issue, the plaintiff’s application to call oral evidence was refused. At that time, the parties were informed that the reasons for refusal would be incorporated in these reasons. Those reasons now follow.

7. The oral evidence sought to be called from the plaintiff in a re-opening was said to relate to the plaintiff’s hitherto undocumented depression and anxiety. It was said that those problems had stopped him from communicating with his solicitor concerning procedural matters of controversy identified by the Nomial Defendant as statutory non-compliance: T12.34 – T12.50; T14.42.

8. The plaintiff’s claim of depression and anxiety was not the subject of affidavit evidence although his personal injury claim form referred to the fact that he had experienced psychological problems following the accident and that he had required counselling. A subsequent comprehensive medical assessment and report relating to the plaintiff as tendered in evidence by the Nominal Defendant made no mention of any such history or diagnosis of depression or anxiety.

9. In those circumstances, the Nominal Defendant was plainly not in a position to meet the evidence intended to be called at a re-opening. I accept the Nominal Defendant’s submissions to that effect. It was plain that the plaintiff’s application had scant basis in the documentation that was made available in the course of the application. In interlocutory applications such as this, on due notice, the parties are expected to provide affidavit evidence concerning relevant documentation and explanatory factual matters of importance, in support of their respective positions.

10. In my view, the plaintiff’s application for the evidence to be re-opened to expand upon details of his psychological difficulties, without supporting medical evidence, was problematic because on the basis of that evidence alone, it is unlikely that he would have been able to provide reliable or determinative opinion evidence on those matters in terms of cause and effect concerning a claimed inability to communicate with his solicitor on procedural matters. No application was made on the plaintiff’s behalf for an adjournment of the hearing of the first defendant’s notice of motion.

11. In the described circumstances, to allow the proposed evidence would necessarily have required the first defendant to seek an adjournment in order to take necessary steps to meet the proposed further evidence. This would also have resulted in unreasonable delay and additional costs where the plaintiff’s evidence, without supporting expert opinion evidence, would not have advanced the issue or improved his position in the litigation.

12. This was in circumstances where the underlying issue of procedural delay was not materially addressed by the plaintiff’s affidavit evidence, which simply referred to his frustration at having his claim rejected by the insurer as the reason for not taking further steps after such rejection, where the insurer had not issued its formal notice that it denied liability for the claim until 3 May 2019, and where the claimed defaults of the plaintiff were significantly antecedent to that event.

13. In balancing the respective interests of the parties, having regard to the consequential inevitable delay and costs which would most likely follow a re-opening if allowed, where, also having regard to the chronology of events, the plaintiff’s oral evidence was unlikely to improve his position, I considered that the application made on his behalf to re-open should be refused as being futile.

Factual matters

14. The plaintiff’s personal injury claim form described the circumstances of the subject accident as follows:

“On 20 July 2016 at about 7:00pm, I was driving on Victoria Road when the vehicle on my left whilst maneuvering (sic) the curve encroached into my lane. In order to avoid an imminent danger of accident I applied the break (sic) and tried to move my car further to the right when I lost control of my car and as a consequence I ended up (sic) truck coming on the opposite direction. As a result of this, I sustained injuries on my back, neck and was shock (sic).”

15. The plaintiff’s signature on his personal injury claim form was dated 22 July 2016. That claim form was received by SIRA on 1 March 2017, some 8 months after the accident and 2 months after the 6 month period for making a timely claim to be made without the leave of the Court. Those delays were not explained.

16. No witness details were provided in the claim form (Question 18). The claim form was silent on the question of whether the accident was reported to police (Questions 16 and 17). That part of the form was left incomplete. The claim form also stated that there was no attendance by ambulance personnel and that the plaintiff did not attend a hospital for treatment (Questions 19, 20 and 21).

17. The plaintiff’s claim form described the nature of his injuries as being neck, back and psychological in nature, for which he said he had received physiotherapy, counselling and an MRI scan. The materials tendered in the plaintiff’s application did not include reports on those matters.

18. On 22 July 2016, the plaintiff was examined by his general practitioner, Dr Mohamed Safi, who noted the plaintiff’s injuries as having been to the left upper quadrant, the neck and the back of the shoulders, to the thoracic area and to the lower back, for which the plaintiff was recommended to have analgesia and physiotherapy, as stated in Dr Safi’s medical certificate which forms part of the plaintiff’s personal injury claim form.

19. On 24 February 2017, the plaintiff’s solicitor sent the plaintiff’s claim form to the Nominal Defendant. As earlier identified, the form was signed by the plaintiff on 22 July 2016. That eight month delay was not explained.

20. On or about 3 March 2017, two days after receiving the plaintiff’s claim form, SIRA advised the plaintiff’s solicitor that details may be required of actions taken by or on behalf of the plaintiff to ascertain the identity of the vehicle at fault.

21. On 23 March 2017, the insurer for the Nominal Defendant requested the plaintiff provide a full and satisfactory explanation for the delay in lodging his claim and, on the same date, details were also sought as to all actions taken by the plaintiff in the nature of due inquiry and search to identify the vehicle at fault. No replies were made to that correspondence.

22. On 26 March 2017, the insurer for the Nominal Defendant sought relevant particulars of the plaintiff’s claim. No replies were made to that correspondence.

23. On 29 March 2017, the insurer for the Nominal Defendant made a further request for a full and satisfactory explanation for the plaintiff’s late claim. No replies were made to that correspondence.

24. On 16 June 2017, the insurer for the Nominal Defendant issued an interim notice denying liability for the plaintiff’s claim pending continuing investigations.

25. On 7 September 2017, the insurer for the Nominal Defendant obtained a detailed medical assessment report from Dr Virginia Pascall, an occupational physician, relating to the plaintiff following an examination undertaken at the insurer’s request. Curiously, in the appendix to her report, Dr Pascall noted that she had been provided with an ambulance report dated 3 April 2017. The nexus between that report and the plaintiff’s accident on 20 July 2016 remains unclear because, according to the plaintiff’s claim form, an ambulance did not attend at the accident scene.

26. On 3 May 2019, the insurer for the Nominal Defendant issued a denial of liability for the plaintiff’s claim, citing the absence of a report to police, and also citing the apparently contradictory factual content of an ambulance report which was not in evidence. That report apparently stated “driver of vehicle involved in medium speed head on impact with truck” without mention of an alleged unidentified vehicle. The insurer’s letter of denial also went on to cite an extract from clinical notes kept by the plaintiff’s general practitioner, namely “whilst driving towards Sydney City, at (sic) after the intersection of Victoria Rd & M3, somehow he crossed the midlines and went (sic) the wrong side of the road and was hit by a truck”.

27. The insurer’s 3 May 2019 letter of denial of the plaintiff’s claim cited the plaintiff’s non-compliance with s 34, s 70, s 72 and s 73 of the MAC Act.

28. On 28 August 2019 the insurer applied to CARS for an exemption from the CARS process. On 1 October 2019, a CARS certificate of exemption was issued.

29. The plaintiff’s solicitor’s affidavit stated that on 5 October 2020, someone from his office had contacted the Daily Telegraph and advertised a notice in the following terms:

“SEEKING WITNESSES

ANYONE WHO HAS WITNESSED AN ACCIDENT INVOLVING A BEIGE TOYOTA SEDAN AND ALDI TRUCK. ACCIDENT OCCURRED ON 16 JULY 2016 AT ABOUT 7:00PM AT THE (sic) ALONG VITORIA (sic) ROAD AFTER DEVLIN ST. TOP RYDE NSW 2112. PLEASE CONTACT DEHSABZI LAWYERS ON [phone]”

30. The first mention of the involvement of an ALDI truck was in the proposed advertisement on 5 October 2020 as cited above.

31. The documentation tendered showed the proposed correspondence concerning an advertisement was with The Advertiser, and not the Daily Telegraph. The documentation comprised a quotation only, and not a receipt or a proof sheet to confirm that publication of an advertisement had actually occurred. The transaction details in the documentation showing a debit transfer of funds was ambiguous. This did not constitute satisfactory proof of publication.

32. On 5 November 2020, someone on behalf of the plaintiff’s solicitor attended the accident scene and fixed a sign to a nearby public telephone box. The terms of the copy of that notice as tendered in evidence was indecipherable but it appeared to be in terms similar to those cited at paragraph [29] above.

33. Essentially, the remainder of the affidavit of the plaintiff’s solicitor, which was sworn on 13 November 2020, comprised content in the nature of submissions.

34. On 13 November 2020, the plaintiff provided an affidavit in which he stated that police and ambulance personnel had attended the accident scene. This account was in contrast to the incomplete content of the plaintiff’s claim form, as cited at paragraph [16] above.

35. In his own affidavit, the plaintiff acknowledged that his solicitor had, on an undisclosed date, advised him to post public notices around the area of the accident scene, and in that same affidavit the plaintiff acknowledged that he had not followed that advice.

36. The plaintiff’s affidavit stated that he was devastated that he had been blamed for the accident. I take that statement to mean that he was upset at the rejection of his claim on 3 May 2019.

37. The plaintiff’s affidavit contained the following statements:

1. I did not communicate with my solicitors as I was frustrated that insurance denied my claim as it was not (sic) fault.

2. I was victim of another reckless driver and geometrically and improperly designed road curve.

3. I had not much option for back and neck pain except relying on over the counter pain killer medications and had some traditional treatment and physiotherapy.

4. Since the time of the accident, I continued to suffer physically and psychologically.

…

1. I confirm that I continuously suffer physical constraint and movement restrictions due to (sic) which has impacted my business and my personal life.”

Legislation

38. The substantive effect of the legislation relied upon by the Nominal Defendant to dismiss the plaintiff’s proceedings may be summarised as follows:

1. Section 34(1AA) of the MAC Act precludes a claim against the Nominal Defendant unless beforehand due inquiry and search has been made to [seek to] establish the identity of the motor vehicle concerned;

2. Section 34A(5) of the MAC Act requires the Court to dismiss proceedings unless satisfied that due inquiry and search has been made to establish the identity of the vehicle in question;

3. Section 70(1) and 70(2) of the MAC Act requires that a motor vehicle accident that gives rise to a claim must be reported to a police officer within 28 days of its occurrence, and absent such a report, a claimant must provide a full and satisfactory explanation for such non-compliance;

4. Section 70(7) of the MAC Act requires that a court hearing an application for dismissal of proceedings on the ground of non-compliance with the police report requirement, must dismiss the proceedings unless satisfied that sufficient cause existed to justify not initially reporting the motor accident to a police officer, and that such a report was made within a reasonable period;

5. Section 72(1) of the MAC Act requires that a claimant must give notice of a claim within 6 months of a motor vehicle accident;

6. Section 73 of the MAC Act requires that where a late claim is made, that is, beyond the 6 month notification period as provided by s 72 of the MAC Act, the claimant must provide a full and satisfactory explanation for the delay in making a claim;

7. Section 85 of the MAC Act requires that before court proceedings are commenced in respect of a motor accident claim, a claimant is to fully co-operate and provide the relevant insurer with sufficient information as to the validity of the claim for assessment and settlement purposes, following a reasonable request being made to do so, and a claimant’s unreasonable failure to do so has the consequence that court proceedings cannot be commenced in respect of the claim while such failure continues;

8. Section 109(1)(a) of the MAC Act provides that without the leave of the Court a claimant is not entitled to commence proceedings in respect of a motor accident claim more than 3 years after the date of the accident to which the claim relates;

9. Section 109(3) of the MAC Act provides that a court must not grant a claimant leave to commence proceedings unless the claimant provides a full and satisfactory explanation to the Court for the delay in question, and that the claimant’s likely damages under s 134 of the MAC Act are not less than 25 per cent of the maximum amount for non-economic loss as at the date of the accident.

39. The provisions cited above have been judicially considered and construed in numerous cases. Where relevant, some of those decisions will be referred to in the course of the consideration of the Nominal Defendant’s application.

Submissions of the parties

40. The Nominal Defendant made detailed submissions to the effect that the plaintiff’s identified statutory breaches of claims procedure, individually and in combination, necessarily required that the plaintiff’s proceedings should be dismissed. That submission was compelling in the described factual circumstances.

41. The submission on behalf of the plaintiff was to the effect that the traumatic and violent nature of the plaintiff’s accident with “acute and well-founded psychological consequences diagnosed as acute depression”, were adequate explanations of the delays incurred such that discretion should be exercised in the plaintiff’s favour. Those submissions were contested on the basis of a lack of sufficiently cogent supporting evidence.

Consideration

42. In the paragraphs that follow I set out my consideration of the elements argued by the Nominal Defendant as justifying dismissal of the plaintiff’s proceedings.

Due inquiry and search

43. It is convenient to commence with the consideration of the question of due inquiry and search: s 34(1AA) and s 34A(5) of the MAC Act.

44. The requirement of due inquiry and search in cases brought against the Nominal Defendant in respect of a claim of alleged negligence on the part of a driver of an unidentified vehicle is a necessarily protective provision, requiring due inquiry and search aimed at identifying the vehicle in question. Such inquiry and search must be reasonable in the circumstances.

43. In this case, although there was evidence of a quotation for a proposed newspaper advertisement being considered on 5 October 2020, over 4 years after the accident, there was no evidence of an advertisement actually having been published in a geographically relevant newspaper. The evidence of the timing of the placement of a sign in a telephone box requesting contact with the plaintiff’s solicitor was similarly problematic because by that time the investigatory trail would most likely have been cold.

44. In the accident circumstances as described by the plaintiff, an inquiry seeking to identify the vehicle was indisputably due. This is not a case where it could be reasonably stated that an inquiry would not have established the identity of the vehicle: Nominal Defendant v Meakes [2012] NSWCA 66, at [55]; Workers’ Compensation Nominal Insurer v Nominal Defendant [2013] NSWCA 301 at [87]; The Nominal Defendant v Ross [2014] NSWCA 212; (2014) 87 NSWLR 238, at [3].

45. This is not a case where an attempt at due inquiry would have been futile so as to excuse an absence of inquiry: Harrison v Nominal Defendant (1975) 7 ALR 680; (1975) 50 ALJR 330, at [332]. This is because it transpires that it was known to the plaintiff that an Aldi truck was involved in the incident. A due and reasonable inquiry would have included making investigatory contact with that company to ascertain if any details could be obtained in relation to the identity of the unknown vehicle. It is reasonable to infer that if a vehicle belonging to that company had been involved in an accident, some relevant records and possibly some investigations would most likely have been undertaken. The plaintiff and those acting on his behalf did not make inquiries in that regard. Such an inquiry would have been due in the described circumstances.

46. The insurer for the Nominal Defendant gave the plaintiff’s solicitor specific notice of the need to comply with the requirement of due inquiry and search and he was asked to specify with particularity what steps had been taken. That correspondence was left unanswered. It appears that no such steps were taken until October 2020. At that time, belated advertisements of the kind referred to in evidence were most likely futile.

47. It is noteworthy that the plaintiff’s position on due inquiry and search involved contradictory elements. At paragraph 4 of the affidavit of the plaintiff’s solicitor, sworn on 13 November 2020, it was said that the plaintiff had been instructed to post a public notice at the accident scene and the plaintiff’s solicitor said: “I confirm that due search and inquiry were (sic) made however it could not be located in our file.” In contrast, at paragraph 4 of the plaintiff’s affidavit sworn on 13 November 2020, the plaintiff acknowledged that although he had been told to post a public notice around the area in question, he had not done so. There was no evidence of other inquiries.

48. It is a truism that due inquiry and search must be undertaken in a timely manner and not just by the ritual placement of a notice at the accident scene or in a newspaper. There is no satisfactory evidence of a newspaper advertisement having been published, timely or otherwise.

49. The absence of reasonable inquiries in this case has precluded the possibility that something may have been found which would have assisted in finding the vehicle and its driver involved in the accident. The fact that an Aldi vehicle was known to have been involved indicates that an inquiry along those lines would not have been a futile or fanciful exercise: Bonnici v GIO (NSW Court of Appeal, unreported, BC 9505231, 16 August 1995).

50. In the foregoing circumstances I am satisfied that the plaintiff has failed to comply with the fundamental requirement of pursuing due inquiry and search to seek to establish the identity of the alleged unidentified motor vehicle. That finding compels the conclusion that the plaintiff’s proceedings against the Nominal Defendant must be dismissed: s 34(1AA) and s 34(5) of the MAC Act.

Non-reporting of accident to police

53. The plaintiff’s initial and most contemporaneous account of the accident circumstances appears in his personal injury claim form, which was silent on whether or not the accident had been reported to the police.

54. There is no satisfactory evidence establishing that police were notified about the accident and attended the accident scene. Had police been contacted, accessible records would most likely have been created and these would have been available for consideration.

55. The assertion on behalf of the plaintiff that the accident was reported to police is not the subject of confirmatory documentary evidence of that assertion. In my view, absent police records, the compelling conclusion is that the accident was not reported to police.

56. The finding that the accident was not reported to the police within 28 days of its occurrence or within a reasonable period thereafter mandates the conclusion that the plaintiff’s proceedings against the Nominal Defendant must be dismissed: s 70(1), s 70(2) and s 70(7) of the MAC Act.

Absence of co-operation with the insurer

57. The Nominal Defendant seeks dismissal of the plaintiff’s proceedings against it because, without reasonable excuse, the proceedings were commenced whilst requests for the provision of particulars remained outstanding.

58. Generally, where proceedings have been commenced in the face of outstanding particulars, documentation and information not being supplied, such proceedings should be dismissed: Hill v Bolt (1992) 28 NSWLR 329, at pp 336-337.

59. The terms of s 85 of the MAC Act pick up and adopt that principle but in more explicit terms, as follows:

85 Duty of claimant to co-operate with other party

(1) A claimant must co-operate fully in respect of the claim with the person against whom the claim is made and the person’s insurer for the purpose of giving the person and the insurer sufficient information:

(a) to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim may be fraudulent, and

(b) to be able to make an early assessment of liability, and

(c) to be able to make an informed offer of settlement.

(2) In particular, the claimant must comply with any reasonable request by the other party or the other party’s insurer:

(a) to furnish specified information (in addition to the information furnished in the claim form) or to produce specified documents or records, or

(b) to provide a photograph of and evidence as to the identity of the claimant.

(3) The reasonableness of a request may be assessed having regard to criteria including the following:

(a) the amount of time the claimant needs to comply with the request,

(b) whether the information sought is cogent and relevant to a determination of liability or quantum of loss, having regard to the nature of the claim,

(c) the amount of information which has already been supplied to or is available to an insurer to enable liability and quantum of loss to be assessed and an offer of settlement made,

(d) how onerous it will be for the claimant to comply with the request,

(e) whether the information is privileged,

(f) whether the information sought is sufficiently specified,

(g) the time of the request and whether the claimant will be delayed in commencing proceedings by complying with the request.

(4) The duty under this section applies only until court proceedings are commenced in respect of the claim but if the claimant fails without reasonable excuse to comply with this section, court proceedings cannot be commenced in respect of the claim while the failure continues.

60. The plaintiff has not supplied particulars requested on 23 March 2017 concerning due inquiry and search. Furthermore, the plaintiff has not supplied particulars requested on 29 March 2017 concerning any report of the accident to the police, whilst asserting that the accident had been reported to police. Similarly, none of the particulars requested by the Nominal Defendant on 26 May 2017 have been supplied by the plaintiff.

61. No reasonable excuse has been proffered for the abovementioned failures of co-operation with the insurer’s requests. Absent cogent evidence supporting the assertion that the plaintiff’s psychological condition had prevented him from communicating with his solicitor on procedural matters the subject of statutory requirements, I do not accept the submission asserting the existence of such a condition. If such a condition existed, it is surprising that it was not the subject of documentary evidence and explanatory correspondence.

62. In my view, the Nominal Defendant has made good its submission that the plaintiff’s proceedings against it have been commenced contrary to the requirements of s 85 of the MAC Act.

Disentitlement to commence proceedings due to absence of a full and satisfactory explanation

63. In this case the plaintiff commenced his proceedings beyond the 3 year limitation period as proscribed by s 109(1) of the MAC Act. It was a late claim by reason of s 72 of that Act in that it was notified to the insurer later than 6 months after the accident.

64. A late claim may proceed if an affected claimant provides a full and satisfactory explanation for the delay in making the claim and absent such explanation a court must dismiss proceedings commenced in respect of a late claim: s 73(1) and (4) of the MAC Act.

65. In this case, no application has been made on behalf of the plaintiff to seek leave to commence or continue the proceedings nunc pro tunc.

66. In my assessment, in combination, the sparseness of the plaintiff’s affidavit, along with that of his solicitor, and the limited documentation tendered at the hearing of this motion, fall well short of what might reasonably be considered as being the provision of a full and satisfactory explanation for the lateness of the plaintiff’s claim: s 72, s 73 and s 109(3) of the MAC Act. Although there is no present application for leave to proceed, in my view, the explanations proffered also fall well short of what is required for leave to proceed: s 109(1)(a) of the MAC Act.

67. The plaintiff’s personal injury claim form was sent to the insurer after the expiry of the 6 month period for making a claim. The plaintiff’s proceedings were filed after the 3 year limitation period. The plaintiff was required to file his proceedings by 20 July 2019. That timeline had not been interrupted or stayed by the effect of s 109(2) of the MAC Act. No acceptable explanation has been advanced to justify the failure to institute proceedings within time.

68. The full and satisfactory explanation required in this case is required to traverse the entire period between the date of the accident until the time of provision of the explanation: s 66(2) of the MAC Act. That has not occurred in this case, as is evident from the sparseness of the plaintiff’s explanation. He only became “frustrated” after his claim was denied by the insurer on 3 May 2019. His proffered explanation is therefore deficient, not full, and not satisfactory.

69. The delay between the plaintiff signing the claim form and its receipt by SIRA on 1 March 2017 is unexplained: Karambelas v Zakmic (No 2) [2014] NSWCA 433, at [17]. Whilst the relevant component of the delay, namely 20 January 2017 to 1 March 2017 is relatively short, it still requires a full explanation and such an explanation, including from the plaintiff’s solicitor, is materially absent: Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408, at [91]-[92], [106].

70. The unsupported explanation proffered, namely, the effect of the plaintiff’s psychological state, needs to be viewed objectively for satisfactoriness in terms of what a reasonable person in the position of the plaintiff would have done in the circumstances: Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408, at [64], [108], [134]. Absent medical evidence on the point, I do not accept that a reasonable person in the position of the plaintiff would have experienced the delay in taking necessary steps to preserve claiming rights as has occurred in this case: Brierley v Ellis [2014] NSWCA 230, at [7].

71. The Nominal Defendant argues, correctly in my view, that the plaintiff has not explained, in sequence, how he came to be aware of the need to lodge a claim form for making a claim, and why there were no replies made to the correspondence from the Nominal Defendant dated 23 March 2017, 3 May 2017 and 16 June 2017.

Conclusion

72. In my view, those circumstances, when viewed as a whole, indicate that the Nominal Defendant’s application for dismissal of the plaintiff’s proceedings against the Nominal Defendant should be granted: s 73(7) of the MAC Act. The plaintiff’s case against the Roads and Maritime Service remains on foot.

Costs

73. As the first defendant has succeeded in establishing the basis for the orders sought in its notice of motion, it should also have an order that the plaintiff should pay the first defendant’s costs of the motion and of the proceedings against that defendant on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply. I consider that the second defendant’s costs of appearing at the hearing of the first defendant’s motion should be costs in the cause.

Orders

74. I make the following orders:

1. Pursuant to s 34(1AA), s 34A(5), s 70(1), s 70(7), s 72(1), s 73(7), s 85(4), s 109(1)(a) and s 109(3) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff’s proceedings against the Nominal Defendant are dismissed due to non-compliance with those statutory provisions;

2. The plaintiff is to pay the Nominal Defendant’s costs of the notice of motion filed on 29 September 2020 and the costs of the dismissed proceedings against that defendant;

3. The costs of the second defendant in appearing at the hearing of the motion are to be costs in the cause;

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

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Decision last updated: 18 February 2021