Terry ELVEY v Phillip MCLENNAN [2021] NSWDC 103

District Court New South Wales

Medium Neutral Citation: Terry ELVEY v Phillip MCLENNAN [2021] NSWDC 103 Hearing dates: 26 March 2021 Date of orders: 1 April 2021 Decision date: 01 April 2021 Jurisdiction: Civil Before: Priestley SC, DCJ Decision: See [50 - 53] - Leave of the Court to commence proceedings more than 3 years after the incident must not be granted. The plaintiff's summons is dismissed, and to the extent that the recently filed statement of claim may be valid, it is dismissed. Catchwords: CIVIL PROCEDURE — Commencement of proceedings — Leave to commence action Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Hodgson v Crane (2002) 55 NSWLR 199 Maharmeh [2021] NSWCA 31 Rahman v Al-Maharmeh [2021] NSWCA 31 Texts Cited: Nil Category: Principal judgment Parties: Elvey (Plaintiff) McLennan (Defendant) Representation: Elvey Selp Represented.

Ryan Counsell for the Defendant File Number(s): 2020/00157429 Publication restriction: Unrestricted

Judgement 1. Before the Court is a Summons seeking leave to commence proceedings in respect of a claim under the Motor Accidents Compensation Act ("MACA") more than 3 years after the date of the motor accident to which the claim relates. 2. It assists to set out some background to the matter. The "motor accident" itself is a contentious term from the plaintiff's point of view (hereafter referred to as "the incident"). The plaintiff alleges that by the incident on 4 July 2017, he was in fact assaulted by the defendant by use of the motor vehicle, which was an excavator, described by the plaintiff as being of 20 tonnes. The location of the incident was at the construction site of a correctional centre near Grafton, and the plaintiff was protesting its construction. 3. By a text message from the plaintiff to the defendant or his workplace dated 26 September 2017, the plaintiff gave notice of his intention to seek damages for the incident. 4. Soon after, seemingly still in September, the defendant replied saying the details had been passed on. 5. There the matter seems to have rested for some time. The plaintiff relies on a report of Dr Kinny, orthopaedic surgeon dated 17 June 2019, and a report of Dr Garg, psychiatrist dated 26 July 2019, with the assessment dates for those reports being 11 June 2019 and 15 July 2019 respectively. 6. By letters dated 18 July 2019 solicitors acting for the plaintiff, MJO Legal, wrote to Foote Law solicitors for the defendant seeking registration details of the excavator, to Dr Cram, the plaintiff's GP, and prepared a motor accident claim form, which appears to have been lodged. 7. On 2 August 2019 Foote Law informed MJO Legal of the registration details. 8. On 6 September 2019 MJO Legal sent a bill to the plaintiff showing the cost of the medical reports was outstanding. 9. A statement of claim was filed by the plaintiff on 30 April 2020. 10. By letter dated 6 July 2020 (that is, 2 months after the filing of the initial statement of claim and 2 days after the expiration of the period of 3 years since the incident) the defendant's solicitors advised the plaintiff that they will forward the statement of claim to their client's CTP insurer. 11. On 2 October 2020 the defendant filed a motion seeking an order that the plaintiff's claim be dismissed on two bases, one asserting the pleading was defective, and a second that pursuant to section 108 of MACA the plaintiff was not entitled to commence the proceedings unless either an assessment certificate or an exemption certificate had been issued under section 94 or 92 of the MACA respectively. 12. When that motion was first before the Court it was adjourned to give an opportunity to the plaintiff, who then as now appears for himself, to obtain some advice to see whether there was some step that he could take to salvage his proceedings and if necessary file any necessary amended statement of claim. 13. The matter was next before the court on 16 December 2020. One matter of significance that had occurred in between the two hearing dates was that an exemption certificate had issued following the plaintiff's application for such a certificate on 8 October 2020 (which I note is 6 days after the filing of the defendant's motion). That however did not cure the defect in the existing statement of claim due to what was considered to be the mandatory requirements of the legislation, and the pleading was still otherwise defective. 14. It was therefore ordered that the statement of claim be dismissed. As noted at that time, this added to the difficulties of the plaintiff as any subsequent statement of claim would be filed more than three years since the incident, something which requires leave, and the satisfaction of the requirements of section 109 of the MACA. 15. At the time of dismissing the earlier statement of claim directions were made for the filing of material and of the necessary summons should the plaintiff seek leave under section 109.