Transport Accident Commission of Victoria v Jovanic

[2019] NSWSC 1137

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Transport Accident Commission of Victoria v Jovanic [2019] NSWSC 1137
Hearing dates:	28 August 2019
Decision date:	03 September 2019
Jurisdiction:	Common Law
Before:	Basten J
Decision:	(1)   Dismiss the further amended summons filed on 2 August 2019.  (2)   Order that the Transport Accident Commission of Victoria pay the costs of Petar Jovanic in this Court.
Catchwords:	ADMINISTRATIVE LAW – judicial review – motor accident – decision of claims assessor under Motor Accidents Compensation Act 1999 (NSW) – late claim – delay in providing explanation – decision that claimant’s explanation for delay was full and satisfactory – whether decision affected legal rights or interests – whether assessor failed to consider explanation of conduct up to date explanation provided
Legislation Cited:	Motor Accident Injuries Act 2017 (NSW), ss 1.8, 6.2 Motor Accidents Compensation Act 1999 (NSW), ss 3, 66, 72, 73, 81, 83, 85, 85A, 92, 94, 96, 108, 109; Pts 4.1, 4.2, 4.3, 4.4
Cases Cited:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10. Dijakovic v Perez [2015] NSWCA 174; 71 MVR 334 Gardner v Dairy Industry Authority (NSW) (1978) 52 ALJR 180 Hayek v Trujillo [2007] NSWCA 139; 49 MVR 12 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 Karambelas v Zaknic (No 2) [2014] NSWCA 433; 69 MVR 127 Nominal Defendant v Browne [2013] NSWCA 197; 64 MVR 214 Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408
Category:	Principal judgment
Parties:	Transport Accident Commission (Plaintiff) Petar Jovanic (First Defendant) Alex Bolton (Second Defendant) State Insurance Regulatory Authority (Third Defendant)
Representation:	Counsel: J B Turnbull SC (Plaintiff) E G Romaniuk SC / E E Grotte (First Defendant)   Solicitors: Holman Webb Lawyers (Plaintiff) Walker Law Group (First Defendant) Crown Solicitor’s Office (Second and Third Defendants)
File Number(s):	2019/76026

Judgment

1. BASTEN J: Petar Jovanic was involved in a collision on 6 May 2015 when his car, then stationary, was hit in the rear by another vehicle. (It is convenient to refer to him as “the claimant”.) The third party insurer of the other vehicle was the Transport Accident Commission (Vic) (“the insurer”). Because the accident predated the commencement of the Motor Accident Injuries Act 2017 (NSW), a claim for damages is subject to the requirements of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”). [1]

   1. Motor Accident Injuries Act, s 1.8. The date of commencement of most of the 2017 Act was 1 December 2017; however, Pt 1, which included s 1.8, commenced on 8 September 2017.

2. Pursuant to s 72(1) of the Act, a “claim”, being a claim for damages in respect of an injury to a person caused by the fault of the driver of a motor vehicle,[2] must be made within six months after the date of the accident. The claim is made by giving notice of the claim to the third party insurer: s 72(2).

   2. Motor Accidents Compensation Act, s 3, claim.

3. With respect to the motor vehicle accident on 6 May 2015, the effect of s 72 was to require that a claim be given to the insurer by 6 November 2015. That was not done. Nevertheless, a claim may be made more than six months after the date of the accident in circumstances provided by s 73:

73   Late making of claims

(1) A claim may be made more than 6 months after the relevant date for the claim under section 72 (in this section called a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer.

(2)   Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation.

(3) If a late claim is made, the claim cannot be referred for assessment under Part 4.4 unless:

(a)   the insurer has lost the right to reject the claim on the ground of delay, or

(b)   a claims assessor has, on the assessment of a dispute as to whether a late claim may be made in accordance with this section, assessed that the claimant has a full and satisfactory explanation for the delay in making the claim, or

(c) the claim is referred only for a certificate of exemption from assessment under Part 4.4.

(4)   The insurer loses the right to reject a late claim on the ground of delay if the insurer:

(a)   does not, within 2 months after receiving the claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay, or

(b)   does not, within 2 months after receiving an explanation for the delay, reject the explanation.

(5)   If court proceedings are commenced on a late claim, the insurer may apply to the court to have the proceedings dismissed on the ground of delay.

(6)   An application to have proceedings dismissed on the ground of delay … cannot be made if the insurer has lost the right to reject the claim on the ground of delay.

4. One consequence of making a late claim is that the claim cannot be referred for assessment under Pt 4.4 of the Act unless a claims assessor has been satisfied that the claimant has provided a full and satisfactory explanation for the delay in making the claim: s 73(3)(b). Further, if proceedings are commenced before a court on a late claim, the insurer may apply to have the proceedings dismissed on the ground of delay: s 73(5). The proceedings must be dismissed unless the court is satisfied that the claimant has given a full and satisfactory explanation for the delay in making the claim.

5. There is a separate time limitation with respect to the commencement of court proceedings, namely that a claimant may not commence proceedings more than three years after the date of the accident: s 109(1)(a). However, leave may be granted to commence proceedings after that time if the claimant satisfies two conditions, one of which is providing a “full and satisfactory explanation to the court for the delay”: s 109(3)(a).

6. There is an explication of the meaning of “full and satisfactory explanation”, provided in s 66(2) of the Act. [3]

66   Definitions

…

(2)   In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.

3. See now Motor Accident Injuries Act, s 6.2.

7. As has been noted, the claimant did not make a claim on the insurer by 6 November 2015; in fact a claim was received some three months later on 11 February 2016. The claim form was signed by the claimant in his solicitor’s office on 16 December 2015, that is, some 40 days after the expiration of the six month period. The delay between 16 December and 11 February resulted from his solicitors overlooking the need to serve the claim.

8. On 2 March 2016 the insurer noted that the claim was late and requested an explanation by a statutory declaration for the delay. That explanation was not provided until 4 May 2018 (a further delay of two years two months). On the date of receipt of the explanation, the insurer advised the claimant’s solicitors that it did not accept the explanation as either full or satisfactory. On 7 May 2018 the solicitor for the claimant referred the dispute as to whether a late claim may be made in accordance with s 73 for a “special assessment” pursuant to s 96(1)(a) and (2) of the Act.

9. The assessment was duly referred to a claims assessor under s 96(3). By the stage the dispute reached the assessor, there had been further communications between the insurer and the claimant, as a result of which the insurer accepted that there had been a “full” explanation, but continued to dispute that it was “satisfactory”. That required the assessor to determine whether the second limb of the test in s 66(2) had been satisfied.

10. Pursuant to a decision dated 11 December 2018 the assessor concluded that both requirements of s 66(2) had been satisfied. He further held, pursuant to s 96(5), that the insurer should pay the claimant’s costs, which were awarded in an amount of $1,200 plus GST.

11. On 8 March 2019 the insurer commenced proceedings in this Court by way of summons in the administrative law list seeking judicial review of the decision of the claims assessor. The summons as originally filed did not identify the correct statutory provisions under which the assessment was carried out. An amended summons was filed on 20 March 2019 which made minor and inconsequential changes to the grounds, but did not amend the relief. Following a response by the claimant filed on 10 May 2019 and a letter from the Crown Solicitor’s Office dated 22 May 2019, on 2 August 2019 a further amended summons was filed which amended, without marking up so far as the relief was concerned, the relevant statutory provisions.

12. The grounds contained within the summons were discursive and included what may best be described as background material. The sole ground of relief was explained in seven separate paragraphs, the effect of which was that the assessor had erred in law in failing to determine whether the explanation given was satisfactory having regard to the period after the date of service of the claim and up to the provision of the explanation.

13. The claimant submitted that (i) the summons should be dismissed on the basis that the impugned decision was not amenable to judicial review and (ii) there was no reviewable error by the claims assessor. These submissions may be addressed in turn.

Effect on legal rights

14. The claimant submitted that the decision was not amenable to judicial review because the outcome did not bind the insurer and thereby did not affect any legal right or interest. Relying on Hot Holdings Pty Ltd v Creasy, [4] the claimant noted that relief in the nature of certiorari will only lie in respect of a decision which determines questions affecting rights and not a decision which is “merely advisory, provides a recommendation, or is made at a preliminary stage of a decision-making process.” Referring to Ainsworth v Criminal Justice Commission,[5] the joint reasons in Hot Holdings stated that “[t]he function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review.” Thus, following Brennan J in Ainsworth, the Court noted that quashing “annihilates the legal effect of an act or decision that has been reached in breach of a condition of its validity but, if an act or decision has no legal effect, there is nothing to quash.” [6]

    4. (1996) 185 CLR 149 at 159-160 (Brennan CJ, Gaudron and Gummow JJ); [1996] HCA 44.

    5. (1992) 175 CLR 564 at 580 (Mason CJ, Dawson, Toohey and Gaudron JJ); [1992] HCA 10.

    6.    Ainsworth at 595.

15. Separately, the insurer sought a declaration as to the period over which the explanation must be full and satisfactory, namely, from the date of the accident up to the date the insurer received the explanation. (The terms of this proposed declaration were flawed for reasons explained below.) In principle, a declaration may be available in circumstances where certiorari would not lie. In that respect, the reasoning of the High Court in Ainsworth may assist the insurer. However, declaratory relief is not available in circumstances where it is not possible to point to some effect on the applicant resulting from the illegality of the conduct of the other party. As explained in Ainsworth, “declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions”. Further, the person seeking relief must have “a real interest” and relief will not be granted if the question is “purely hypothetical”, if relief is claimed “in relation to circumstances that [have] not occurred and might never happen”, or if “the Court’s declaration will produce no foreseeable consequences for the parties”. [7]

    7.    Ainsworth at 582.

16. Those passages included reference to the earlier decision in Gardner v Dairy Industry Authority (NSW),[8] a case involving a challenge to reallocations of milk quotas for dairy farmers undertaken over a period of years. There was a challenge to the first three of a number of rearrangements of the quotas, the effect of which had been overtaken by a fourth rearrangement. The first three rearrangements were impugned as invalid under the legislation then in force. The fourth rearrangement occurred under new legislation which has since been repealed. The claims of invalidity were rejected. However Mason J noted (with the agreement of Jacobs and Murphy JJ) that even if there had been invalidity in respect of the earlier allocations, they had been “superseded by the fourth rearrangement which had been set up under the auspices of amending legislation.” The appellants did not claim damages or other consequential relief and could not identify any definite way in which a declaration would advance or improve their positions. Mason J continued: [9]

“It is one thing to say that declaratory relief will be granted against the Executive or a statutory authority in relation to existing rights and transactions. It is quite another thing to say that it should be granted in respect of past transactions under legislation which has been repealed or amended when the Court's declaration will produce no foreseeable consequences for the parties.” [10]

8. (1978) 52 ALJR 180.

9.    Gardner at 188C (col 1).

10.    Aickin J gave similar reasons at 189.

17. In Ainsworth, the applicants had been the subject of adverse statements as to their conduct and characters in a report prepared by the respondent Commission, without notice to them that such statements would be included. In that respect, there was a breach of procedural fairness. The Court noted that although the report had been delivered and published, and “although it had no legal effect or consequence, it had the practical effect of blackening the appellants’ reputations.” [11] The Court concluded it was appropriate to grant declaratory relief to the effect that “in reporting adversely to the appellants in its report …, the Commission failed to observe the requirements of procedural fairness.” [12]

    11.    Ainsworth at 581.

    12.    Ainsworth at 582.

18. Whether the claimant’s submission that no legal rights were affected by the claims assessor’s decision should be accepted turns on the operation of aspects of the Act which are not pellucid. One starts with the requirements for making a late claim under s 73 of the Act, in Pt 4.2 and, with respect to the elucidation of the phrase “full and satisfactory explanation”, in s 66(2), in Pt 4.1. Section 96(4) provides that an assessment of a dispute under s 96 “is binding on the parties to the dispute to the extent that it relates to the duties of the parties with respect to a claim under Part 4.3.” Part 4.3 includes ss 80-87, which impose a range of duties on the parties.

19. The first question is the intended scope of the affirmative statement in s 96(4) that the assessment is binding on the parties to the dispute “to the extent that it relates to the duties of the parties with respect to the claim under Part 4.3.” The terminology, “relates to”, could bear either a narrow or a broad meaning. The narrow meaning requires a direct relationship between the dispute and the duties under Pt 4.3. Section 96(1) states that the section applies to 10 categories of dispute. Of these, six fall within provisions found in Pt 4.3. Thus, the most obvious operation of s 96(4) is to provide that assessments in relation to those disputes are binding on the parties. However, a broader construction may be appropriate given that subs (4) does not state that it is binding with respect to those disputes under pars (d)-(i) of subs (1), as might have been the case if that narrow approach had been intended. Rather, the phrase “to the extent that”, and the identification of a relationship, suggest a broader construction is appropriate.

20. It is clear that the narrower construction does not make binding a dispute as to satisfaction of s 73(1), which does not fall within Pt 4.3. What is less clear is whether a resolution of a dispute under s 73 relates, to any extent, to the duties under Pt 4.3. The parties were divided on this issue. The insurer claimed that it did relate to those duties and took, by way of example, the operation of s 81, which was as follows:

81   Duty of insurer with respect to admission or denial of liability

(1) It is the duty of an insurer to give written notice to the claimant as expeditiously as possible whether the insurer admits or denies liability for the claim, but in any event within 3 months after the claimant gave notice of the claim under section 72.

(2)   If the insurer admits liability for only part of the claim, the notice is to include details sufficient to ascertain the extent to which liability is admitted.

(3)   If the insurer fails to comply with this section, the insurer is taken to have given notice to the claimant wholly denying liability for the claim.

21. The insurer submitted that s 81(1) imposed a time limit which ran from the date the claimant gave notice of the claim “under section 72.” That section required that the claim be given within six months of the accident. The provision for late claims is contained in s 73. Accordingly, the insurer submitted, there could be no claim under s 72 until either it accepted, or a claims assessor determined, that a full and satisfactory explanation had been given for the delay. A late claim may be rejected by the insurer or, if that does not happen (or an explanation is not sought) within two months after “receiving the claim” the right of objection is lost: s 73(4). If court proceedings are commenced on a “late claim” the insurer may apply to the court to have the proceedings dismissed: s 73(5). In dealing with that application, the court must be satisfied that the claimant has a full and satisfactory explanation for the delay: s 73(7). Furthermore, until the insurer has lost the right to reject the claim on the ground of delay, or a claims assessor has determined that the explanation was full and satisfactory, a claim cannot be referred for assessment under Pt 4.4.

22. The operation of s 81(1), with respect to late claims, is somewhat obscure. While it is arguable that a late claim is given under s 73 and not s 72, thus not engaging s 81(1) until some further step is taken, the three month period does not run from any identified later date. On one view, it can only run from the date on which the insurer received the claim, although the claim was not made in accordance with s 72. However, if that were the case there would be some incoherence in requiring the insurer to “reject” the claim on the ground of delay (within two months after receiving it) and yet requiring the insurer, within three months of the same date, to admit or deny liability for the claim.

23. Although the matter cannot be described as beyond doubt, and uninstructed by authority, I would accept that the duty imposed by s 81(1) with respect to a late claim runs from the date when the insurer loses the right to reject the claim on the ground of delay, or when a claims assessor determines that a full and satisfactory explanation has been given, if such a determination is made.

24. Again, the better view may be that an assessment that a full and satisfactory explanation has been provided is one which, to an extent, “relates to” the duties imposed under s 81(1), which appears in Pt 4.3, and for that reason is an assessment which is binding on the parties.

21. Such an effect has significant legal consequences for both the insurer and the claimant. So far as the insurer is concerned, it is required to give written notice as to whether it admits or denies liability, on pain of breach, not only of a statutory duty under s 81(1), but of a licence condition, as the statutory duty is a condition of the insurer’s licence, pursuant to s 81(5). Further, if liability has been admitted, in whole or in part, the insurer is subject to obligations to make payments of medical and other expenses, pursuant to s 83. Specific statutory duties of co-operation and provision of particulars are imposed on the claimant, pursuant to ss 85 and 85A.

22. Accordingly, and to that extent, the decision of the claims assessor favourable to the claimant did have legal consequences for the parties. Therefore, the decision was amenable to judicial review, including relief in the nature of certiorari quashing the decision if it were made in error.

23. However, the claimant submitted there was authority binding on this Court for a contrary conclusion, namely the decision of the Court of Appeal in Hayek v Trujillo. [13] That decision turned on the fact that the insurer had lost the right to challenge the appellant’s claim on the ground of delay, because it had failed to make the necessary request or reject the claim within the two months provided under s 73(4). Nevertheless, the insurer was allowed to refer the matter to a claims assessor to determine whether a full and satisfactory explanation had been given, under s 96(1)(a). The claims assessor determined that it had not. Because that decision was not challenged, it appears to have been assumed that the matter could not be referred for assessment of damages under Pt 4.3, a point to which I will return below. As there was no assessment under s 94, nor a certificate of exemption under s 92, the court proceedings were dismissed for failure to comply with s 108(1). The Court of Appeal upheld the dismissal of the claim on that basis.

    13. [2007] NSWCA 139; 49 MVR 12.

24. In these circumstances, it is not entirely clear why the Court addressed the question of whether the special assessment which had been carried out (and resulted in a determination adverse to the claimant) was or was not “binding” on the parties. Nevertheless, Ipp JA (Mason P and McColl JA agreeing), held that only assessments with respect to disputes within categories identified in s 96(1)(d) and (e) were binding; they were described as involving “the only duties of the parties, provided for under Pt 4.3, that are relevant to disputes under s 96”. [14] Because an assessment of a dispute under s 96(1)(a) did not fall within a relevant category of dispute, the assessment was said not to be binding. This conclusion was reached without consideration of the language of s 96(4). It amounted to acceptance of the narrow view which, for reasons set out above, may be thought unpersuasive. Nevertheless, being bound by the reasoning in Hayek, which appears to form a step in reaching the ultimate conclusion (and is not to be treated as dicta) I would, of necessity, be required to accept the claimant’s argument on this point.

    14. Hayek at [47].

25. Nevertheless, there is a separate reason for concluding that the determination of the claims assessor has a material effect on legal rights and interests: it is illustrated by the facts in Hayek. If the claims assessor declines to make the assessment sought by the claimant (namely that there has been a full and satisfactory explanation provided for the delay) the claim “cannot be referred for assessment under Part 4.4”: s 73(3), set out at [3] above. There are three circumstances which operate by way of exception to that prohibition. The first does not arise in the present case because the insurer did not lose its right to reject the claim. The third would only arise if the claim were exempt from assessment which, relevantly under s 92(1), would depend on a claims assessor finding that “it is not suitable for assessment”. It is not clear why a late claim would be “not suitable for assessment” merely because it was late. Accordingly, there would, at the very least, be significant difficulties, if not a legal bar, to the claimant proceeding to a court on a late claim, absent a favourable assessment under s 73(3)(b).

26. On the other hand, if there were a favourable assessment, it is not entirely clear on what basis the insurer could resist a referral for assessment under Pt 4.4. An affirmative finding as to the explanation being full and satisfactory, by a claims assessor under s 96(2) must have the effect, within the statutory scheme, of opening the gateway to a referral under Pt 4.4 and hence satisfaction of an essential precondition to the commencement of court proceedings. Such a decision is amenable to judicial review in accordance with the principles explained in Hot Holdings. Hayek does not preclude this conclusion.

Was the impugned decision invalid?

31. The claims assessor had a “full” explanation as to what happened in the two year period after the claim was made and before the explanation was provided. That was, in short, that the claimant had attended for a medical examination and, having heard nothing from his solicitors thereafter, concluded that his claim was not worth pursuing. Early in that period his first child was born.

32. The claims assessor dealt in some detail with the explanation given for the period from the date of the accident until the claim form was served. He was satisfied that the claimant acted reasonably in that period. [15] Then, a heading followed, “What does from the date of the accident until the date of providing the explanation mean?” That issue was apparently addressed over the next five paragraphs, concluding with the statement that the assessor was of the opinion that a satisfactory explanation had been provided by the claimant. [16]

    15.    Assessor’s reasons, par 44.

    16.    Assessor’s reasons, par 61.

33. In effect, the claims assessor answered the question he had posed for himself by reference to two decisions of the Court of Appeal which led him to conclude that the only relevant period of delay to be satisfactorily explained was from the expiration of the six month period (6 November 2015) to the date of filing the claim (11 February 2016). [17]

    17.    Assessor’s reasons at par 59.

34. It is best to start by referring to the language of the statute. The first sentence in s 66(2) (set out at [6] above) is clear: it requires a “full” account of the claimant’s conduct and beliefs “from the date of the accident until the date of providing the explanation.” The second sentence deals with whether the explanation is “satisfactory” and uses different language, namely whether “a reasonable person in the position of the claimant … would have been justified in experiencing the same delay.”[18]

    18. The same language is adopted in s 6.2 of the Motor Accident Injuries Act.

35. As noted above, the claims assessor approached the question of statutory interpretation by reference to two decisions of the Court of Appeal. The first was Karambelas v Zaknic (No 2). [19] The judgment in that case did not address the issue relevant for present purposes for the simple reason that the claim form was accompanied by an explanation for the delay. [20] There was, arguably, only one period. Further explanations were given thereafter, and were found to be full and satisfactory by a claims assessor. The matter was referred for an assessment of damages, which were assessed but not accepted by the injured party, and the matter proceeded to hearing in the District Court. The Court of Appeal held (indeed it was conceded) that the trial judge in the District Court had been in error in requiring a full and satisfactory explanation for a period which extended up to and including the commencement of proceedings in the District Court. That approach was erroneous, and the matter was reassessed by the Court of Appeal considering the explanation up to the date of serving the claim and providing the explanation. Meagher JA stated:

“[16] An explanation is ‘full and satisfactory’ within s 66(2) if it satisfies two requirements. First, it must include a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until ‘the date of providing the explanation’. In the case of a late claim under s 73(1) that is the date on which the explanation is first provided. Secondly, the explanation must be such that a reasonable person in the position of the claimant ‘would have been justified in experiencing the same delay’. The delay is the period during which the claimant was late in making his or her claim; a period commencing six months after the date of the motor accident and continuing until the claim is first made by giving notice to the third-party insurer. This summary of the position accords with the observations of this Court in Nominal Defendant v Browne [2013] NSWCA 197; 64 MVR 214 at [15]–[16] (Basten JA, Barrett and Gleeson JJA agreeing) as to the application of the definition in s 66(2) to the circumstances of a late claim, and is not inconsistent with the decision in Mancini v Thompson [2002] NSWCA 38, which makes clear that the focus of the "full" account is on the period of delay to be explained: at [46]–[47] per Rolfe AJA, Beazley and Stein JJA agreeing.” (Emphasis added.)

19. [2014] NSWCA 433; 69 MVR 127 (Meagher JA, with whom Simpson J and I agreed).

20. Karambelas at [7].

36. It is true that in Nominal Defendant v Browne,[21] after referring to s 66(2), I said:

“[16]   In the present case, the respondent's explanation was required to cover the period from the date of the accident (5 January 2009) until the date of the motor accident claim. The personal injury claim form was served on the Nominal Defendant on 16 June 2011; an amended statement of claim joining the Nominal Defendant was served on 28 November 2011.” (Emphasis added.)

21. [2013] NSWCA 197; 64 MVR 214.

37. The italicised passage set out above did not accurately reflect the requirements of the first sentence of s 66(2). However, as appears from the following paragraphs in the judgment, the Court, in finding that there had been no full and satisfactory explanation, focused on the period before the solicitors for the claimant took the first steps to bring a claim under the Act. No period after the date the claim was received was relevant.

38. The second decision relied upon by the claims assessor in the present matter was Dijakovic v Perez. [22] That case involved a delay in commencing proceedings within the period of three years prescribed by s 109(1) of the Act. Mr Dijakovic was injured in a motor vehicle accident that occurred on 21 October 2009; he did not commence legal proceedings until 13 December 2013, that is some four years and two months after the accident. However, time does not run whilst a matter is being considered by a claims assessor. Accordingly, the period of “delay” beyond the prescribed limitation period, was not 14 months, but about 16 weeks. [23]

    22. [2015] NSWCA 174; 71 MVR 334.

    23.    Dijakovic at [1], [3], [18].

39. Justice Gleeson, with whom Leeming JA and McCallum J agreed, addressed the period for which an explanation was required, in the following terms:

“[81] The inquiry required by s 109(3)(a) and s 66(2) has two temporal elements. One is the period of ‘delay’ in commencing the proceedings after the three year time limit has expired. It is ‘the delay’ which requires explanation under s 109(3)(a). The other is the period in respect of which a ‘full’ account is required of the claimant’s conduct including the actions, knowledge and belief of the claimant. Authority makes plain that this period is from the date of the accident until the date of providing the explanation for the delay in commencing proceedings. [24] ”

24. Brierley v Ellis [2014] NSWCA 230; 67 MVR 282 at [7]; Karambelas v Zaknic at [16]; Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 at [48]; Russo v Aiello [2003] HCA 53; 215 CLR 643 at [4]; Mancini v Thompson at [46]-[47].

40. Further, in introductory observations, Gleeson JA stated, in a passage relied upon by the claims assessor:

“[19]   The concept of a satisfactory explanation in s 66(2) requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant’s position, the delay which has occurred was reasonably justifiable. The explanation is directed to the delay which occurred to the time when the proceedings were commenced: Karambelas v Zaknic at [17].”

41. Leeming JA, in further observations, with which McCallum J agreed, stated:

“[130] As [Gleeson JA] points out at [81], it is essential to distinguish between the two time periods specified in s 66(2), regard to which is made necessary by the inquiry required by s 109(3)(a). A full account for the conduct, from the date of accident until the date it is provided, is required to be given. A satisfactory explanation for the delay is also required to be given. The “delay” is the period of time which caused the need for the grant of leave under s 109(1). That is established by authority, and is a natural reading of the language, bearing in mind that s 109(3)(a) is a precondition for the grant of leave made necessary by the expiration of the three year period in s 109.”

42. For the most part, the insurer accepted that the period of “delay” referred to in the second sentence of s 66(2), for which the explanation had to be “satisfactory” in the terms explained in that sentence, was the delay beyond the limitation period up until the claim was lodged. Nevertheless, the insurer contended that the claims assessor had erred in failing to take account of so much of the explanation as concerned the period after the claim was lodged and up to the point when the explanation was given. That was necessary, the insurer submitted, in order to make sense of the requirement of a full account covering the extended period. Further, it was said to be required in accordance with the reasoning of the Court of Appeal in Walker v Howard. [25]

    25. (2009) 78 NSWLR 161; [2009] NSWCA 408 (Spigelman CJ, Allsop P, Campbell, Macfarlan and Young JJA).

43. The passages relied upon by the insurer in Walker v Howard are to be found in the reasoning of Allsop P (with whom the other members of the Court agreed). The relevant passages were as follows:

“[48]   As is made clear by the first sentence of s 66(2), the explanation to be given for the delay is from the date of the accident until the provision of the explanation.

…

[50]   Section 66(2) has two sentences. They should be read together as a composite whole intended to give content to the notion of a full and satisfactory explanation.”

44. A five judge Court had been convened for Walker v Howard in order to resolve differences of opinion as to the operation of s 66(2), and its predecessor (in identical terms) in the Motor Accidents Act 1988 (NSW). The critical feature of the case was the application of s 66(2) to the circumstances of an incompetent (brain-damaged) accident victim. The issue requiring resolution was far removed from the present circumstances; it concerned two factors, namely (i) whether the “full account” referred to in the first sentence was limited to the conduct of the claimant, and (ii) whether, if a broader view of the relevant conduct were accepted, whether the “reasonable person in the position of the claimant”, referred to in the second sentence, involved a more limited concept. The first issue was resolved in favour of the broader approach, Allsop P stating that “the explanation or full account referred to in the first sentence is not restricted to the conduct of the claimant personally.”[26] With respect to the second issue, Allsop P reached two conclusions. First, he concluded that “the test of satisfactoriness in the second sentence of s 66(2) [is] the operative standard: that is, it is not merely necessary, but it is sufficient.”[27] Secondly, he rejected the proposition that “the focus in the second sentence is only upon the acts or omissions of the claimant”, continuing:[28]

“It is the whole explanation — the full explanation contemplated by the first sentence against which the question is to be asked whether [the delay was one] the reasonable person in the position of the claimant would or would not have been justified in experiencing.”

26. Walker v Howard at [52].

27. Walker v Howard at [95].

28. Walker v Howard at [96].

45. The combined operation of the two sentences in s 66(2) is not without its difficulties. Some of these are highlighted by the present case in which there was, unusually, a delay of some two years between the lodgement of the claim and the provision of the explanation.

46. First, there is an arbitrariness about the need to explain steps taken or not taken after the lodgement of the claim. One may readily accept that post-claim conduct may be revealing in relation to earlier delays; nevertheless, where an explanation is given contemporaneously with the lodgement of the claim, that conduct will not be available for consideration. In that sense, the cut-off date for the full explanation is somewhat arbitrary; it appears to be a compromise based on practical considerations.

47. Secondly, there is a degree of uncertainty as to when the period ends. As the present case illustrates, there are not infrequently exchanges between claimant and insurer which result in further information being provided over time. Where the limitation period is agitated before a court, the supply of information may continue through to the evidence given by the claimant, including in cross-examination.

48. Thirdly, once it is acknowledged that the delay which is to be explained is the delay in making the claim, and once it is accepted that the account eventually given by the claimant was a full account up to the point at which it was provided, it may be difficult to know how material which explained the delay in giving the full account would be relevant to determining whether the delay in lodging the claim was satisfactorily explained. The last point is critical to the question whether there was an error of law, or indeed jurisdictional error, on the part of the claims assessor in the present case.

49. In written submissions, the insurer stated: [29]

“Whilst the words used in the second sentence of s 66(2) focus upon the failure to lodge the claim form within the 6 month time period and the delay between the end of that 6 month period and the time when the claim form was lodged it was nevertheless incumbent upon the [claims assessor] to consider the totality of the explanation provided by the claimant up to the time when the explanation was provided.”

Further, the submission asserted that the assessor’s finding “that a satisfactory explanation has been provided failed to give any consideration to any actions, knowledge or belief of the [claimant] after 11 February 2016.” [30]

29.    Written submissions, par 32.

30.    Written submissions, par 37.

50. The obligation underlying these statements, namely that the claims assessor was required to have regard to the explanation given for delay over the period up until the explanation was provided was correct, if one adds the qualification, so far as it was relevant to assessing the delay in lodging the claim. The problem the insurer faced was that there was no basis for a finding that the claims assessor did not have regard to the full account, so far as relevant. No evidence was placed before this Court to demonstrate that there was relevant information about what happened after the claim was lodged which was disregarded and could not properly have been disregarded by a reasonable assessor carrying out his or her functions under the Act. Nor can any inference be drawn from the absence of reference to such later conduct in the assessor’s reasons because there is no basis to infer that any later conduct would have been material to an assessment of the explanation for the delay in lodging the claim. It follows that the insurer has failed to demonstrate reviewable error on the part of the assessor.

50. There was a second proposition raised in the written submissions which, if correct, might have demonstrated legal error on the part of the approach adopted by the assessor. The submission read as follows: [31]

“It is submitted that [having regard to the objects of the Act] the provisions of s 66(2) require the explanation of the delay between the end of the 6 month period and the date of making the claim but also require a satisfactory explanation for what occurred up to the time the explanation was provided.”

31.    Written submissions, par 36.

52. For the reasons explained above, the statement following the words “but also” are not correct as a matter of law.

Orders

53. It follows that, although it was not correct to say that the decision of the claims assessor was not amenable to judicial review, the claimant is entitled to succeed on the basis that no jurisdictional error or error of law on the face of the record was established by the insurer. Accordingly, the Court should make the following orders:

1. Dismiss the further amended summons filed on 2 August 2019.

2. Order that the Transport Accident Commission of Victoria pay the costs of Petar Jovanic in this Court.

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Endnotes

Decision last updated: 03 September 2019