Watts v Roxby

[2019] NSWDC 183

District Court

New South Wales

Medium Neutral Citation:	Watts v Roxby [2019] NSWDC 183
Hearing dates:	16 May 2019
Date of orders:	17 May 2019
Decision date:	17 May 2019
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1)   Defendant’s motion filed on 1 March 2019 is dismissed. (2)   Order the defendant to pay the plaintiff’s costs of the motion.
Catchwords:	MOTOR ACCIDENTS – late claim – full and satisfactory explanation for delay
Legislation Cited:	Motor Accidents Compensation Act 1999 Motor Accidents Act 1988
Cases Cited:	Karambelas v Zaknic (No. 2) [2014] NSWCA 433 Walker v Howard [2009] NSWCA 408; (2009) 78 NSWLR 161
Category:	Procedural and other rulings
Parties:	Robyn Irene Watts (Plaintiff) Phillip John Roxby (Defendant)
Representation:	Counsel: V Tzatzagos (Plaintiff) G Young (Defendant)   Solicitors: Brydens Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2019/22938

Judgment

1. These proceedings concern a claim brought by the plaintiff for damages arising out of a motor vehicle accident which occurred on 24 February 2013. The claim is governed by the provisions of the Motor Accidents Compensation Act 1999 (the Act).

2. The defendant has brought a motion filed on 1 March 2019 seeking an order dismissing the Statement of Claim for breach of s 72 of the Act.

3. Section 72 of the Act requires that a claim form be served upon the CTP insurer within six months of the date of the accident. In this case the claim form was required to be served by 24 August 2013. It was not served until 1 August 2014. It was late by 49 weeks.

4. On 19 August 2014 the insurer for the defendant requested the provision of a full and satisfactory explanation for the delay in making the claim.

5. On 10 September 2015 the solicitors for the plaintiff served a Statutory Declaration by the plaintiff dated 10 September 2015 containing an explanation for the delay.

6. On 13 October 2015 the insurer sought further information regarding the explanation.

7. On 26 October 2015 the insurer rejected the claim on the basis that the explanation was not full and satisfactory.

8. On 28 October 2015 and on 28 January 2016 the solicitors for the plaintiff provided further information in respect of the late claim.

9. The insurer maintained its rejection of the claim.

10. The plaintiff commenced proceedings in this Court by the Statement of Claim filed on 22 January 2019.

11. On 1 March 2019 the defendant filed the Notice of Motion presently before the court.

The Act

12. Section 72(1) of the Act provides that a claim must be made within six months after the date of the motor accident. Section 72(2) provides that a claim is made by giving notice of the claim to the third party insurer.

13. Section 73(1) of the Act provides that a claim may be made more than six months after the motor accident if the claimant provides a full and satisfactory explanation for the delay in making the claim.

14. Section 73(5) of the Act provides that if court proceedings are commenced on a late claim,…