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

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

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.
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

In support of the application the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWDC 20
Decision Date: 18 February 2021

CaseChat Overview and Summary

In the case of Syed v Cic Allianz Insurance Ltd, the plaintiff, Syed, sought to bring proceedings against the defendant, Cic Allianz Insurance Ltd. The dispute arose from a motor vehicle accident where Syed alleged that Cic Allianz Insurance Ltd had failed to comply with statutory obligations. The matter was brought before the court to determine whether the insurer could apply for the Nominal Defendant to dismiss Syed's proceedings due to non-compliance with statutory requirements.

The court was tasked with resolving whether the insurer had the right to apply for dismissal of Syed's proceedings against the Nominal Defendant. This involved an interpretation of the statutory provisions that govern insurance claims and the procedural mechanisms available to insurers in such situations. The court also needed to consider the balance between ensuring compliance with statutory obligations and protecting the plaintiff's rights to seek redress.

The court found that the statutory provisions did indeed allow the insurer to make an application for dismissal if the plaintiff had not complied with the necessary requirements. The court reasoned that adherence to statutory mandates was crucial for maintaining the integrity of the legal process and ensuring that claims were properly substantiated. It was determined that the statutory requirements were not merely procedural but were integral to the substantive rights and obligations of the parties. Consequently, the court ruled in favour of the insurer, granting the application for dismissal. The court's decision emphasised the importance of procedural compliance in insurance claims to uphold the efficacy of the legal system.

The final orders of the court mandated that the proceedings against the Nominal Defendant be dismissed due to non-compliance with statutory requirements, as detailed in paragraph [74].

Orders

Orders of the court

See paragraph [74] for orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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