Commins v The President of the Personal Injury Commission of NSW [2022] NSWSC 1695

Supreme Court New South Wales

Medium Neutral Citation: Commins v The President of the Personal Injury Commission of NSW [2022] NSWSC 1695 Hearing dates: 5 December 2022 Date of orders: 12 December 2022 Decision date: 12 December 2022 Jurisdiction: Common Law Before: Schmidt AJ Decision: I order that: 1. The amended summons be dismissed. 2. There be no order as to costs. Catchwords: CIVIL PROCEDURE — Commencement of proceedings — Summons — where plaintiff was injured in motor vehicle accident for which he accepted compensation under Motor Accidents Compensation Act 1999 (NSW), s 95(2) — where plaintiff has brought proceedings under s 109 which requires leave — where medical assessors' certificates went unchallenged by review mechanisms available under ss 62, 63 — where claims assessor was bound by medical assessors' certificates under s 61 CIVIL PROCEDURE — notice of motion — where amended summons does not comply with requirements of Uniform Civil Procedure Rules 2005 (NSW) — defendant moves for amended summons to be dismissed — whether plaintiff should be given leave to further amend summons — whether plaintiff's case is legally tenable — what the dictates of justice require — Civil Procedure Act 2005 (NSW), ss 56-60 — amended summons dismissed LIMITATION OF ACTIONS — Personal injury — where plaintiff seeks to bring proceedings in respect of claim after 3-year limitation period provided under Motor Accidents Compensation Act 1999 (NSW), s 109 — construction of legislative scheme — whether acceptance of amount payable in settlement of claim under s 95 precludes later proceedings being brought under s 109 Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64 Motor Accidents Compensation Act 1999 (NSW), ss 5, 61, 62, 63, 81, 94, 95, 108, 109, 131, 134, Pt 4.5 Supreme Court Act 1970 (NSW), ss 65, 69 Uniform Civil Procedure Rules 2005 (NSW), rr 15.1, 42.1, 59.4, 59.10 Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Bott v Carter [2012] NSWCA 89 The Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Smalley v Motor Accident Authority of New South Wales (2013) 85 NSWLR 580; [2013] NSWCA 318 Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Category: Procedural rulings Parties: Scott Michael Charles Commins (Plaintiff) The President, Personal Injuries Commission of NSW (First Defendant) Insurance Australia Ltd t/as NRMA (Second Defendant) Representation: Counsel: Mr K Rewell SC (Second Defendant)