McDonald v Burchmore [2022] NSWDC 709

District Court New South Wales

Medium Neutral Citation: McDonald v Burchmore [2022] NSWDC 709 Hearing dates: 11 November 2022 Date of orders: 11 November 2022 Decision date: 11 November 2022 Jurisdiction: Civil Before: Neilson DCJ Decision: I extend the limitation period for bringing a claim arising out of the death of the late Lucija Buljevic on 1 October 2016 until the 21 February 2022. By consent, each party will pay her own costs of this application. Catchwords: CIVIL – MOTOR ACCIDENT – NOTICE OF MOTION – EXTENSION OF LIMITATION PERIOD – Compensation for relatives - Whether the Plaintiff has provided a "full and satisfactory explanation" pursuant to MACA – Whether the Plaintiff had sufficient knowledge and control of her Solicitor's conduct. Legislation Cited: Compensation to Relatives Act 1897 (NSW) Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Rahman v Al-Maharmeh [2021] NSWCA 31 Smith v Grant [2006] NSWCA 244 Stein v Ryden [2022] NSWCA 212 Texts Cited: Nil. Category: Procedural rulings Parties: Plaintiff – Sandra McDonald Defendant – Gloria Burchmore Representation: Counsel: Plaintiff - Mr Jones, B. Defendant – No appearance. Solicitors: Plaintiff – Stacks Goudkamp Defendant – No appearance. File Number(s): 2022/00051024 Publication restriction: Nil.

Judgment 1. HIS HONOUR: Before me is a motion, notice of which was filed on 9 June 2022, but the only prayer for relief is this: "The plaintiff be granted leave to commence proceedings out of time pursuant to Section 109 of the Motor Accidents Compensation Act 1999". 1. In fact, the Plaintiff commenced proceedings on 21 February 2022. I assume the Plaintiff seeks leave, nunc pro tunc, to rely on that Statement of Claim. The claim pleaded in the Statement of Claim is a claim under the Compensation to Relatives Act 1897. The Plaintiff is the daughter of the late Lucija Buljevic. She brings the proceedings on behalf of her father, Marko Buljevic, the husband of the late Lucija Buljevic, on her own behalf, and on behalf of her sister, Silvija Buljevic. 2. The proceedings are also brought by the Plaintiff on behalf of her children, Cameron McDonald, and Samuel McDonald, each of whom is a grandchild of the deceased, and also on behalf of the children of her sister Silvija: Klaudija Christine McMahon, Justin Nikola McMahon, Harley Storm McMahon, Jackson Levi Joshua McMahon, and Domanic Axel John McMahon. Of the grandchildren of the deceased, Klaudija and Justin are now, both sui juris. Klaudija is, on my calculation, 21 years old, and Justin is 20 years old. The evidence before me establishes that they have left the care of their mother and are residing together on the South Coast of New South Wales. 3. The proceedings arise out of the death of Lucija Buljevic. On 15 August 2016, she was in the car park of the Coles supermarket in Willarong Road, Caringbah, when she was struck by a vehicle being driven by the Defendant. As a result of that accident, the deceased was severely injured, however, she did not die of her injuries until 1 October 2016. 4. A claim for motor accidents damages was made on behalf of the deceased while she was still alive, that claim is dated 28 August 2016 and was made on behalf of the deceased by her husband, Mr Marco Buljevic. The motor accident personal injury claim form is annexure A to the affidavit of Thomas Julius Goudkamp, which is Exhibit B-B. 5. After the death of the deceased, a motor accident compensation to relatives form was made by the Plaintiff and that bears the date 3 October 2016, a copy of which is annexure E to the affidavit of Mr Goudkamp, affirmed on 19 August 2022. It ought be clear from what I have already said that the Plaintiff first consulted a solicitor on 7 September 2016 when the deceased was still alive but, as I understand it, comatose in the St George Hospital. 6. On 7 September 2016, the Plaintiff contacted Stacks Goudkamp, and spoke with Ms Ruth Hudson, a solicitor who was then employed with Stacks Goudkamp. Essentially, Ms Hudson acted for the Plaintiff thereafter. On 22 November 2017, Ms Hudson wrote to the solicitors who were, by then, acting for the Defendant and advised those solicitors, Messrs Hall and Wilcox, that Ms Karina Jane Goodall had assumed the conduct of the claims made on behalf of the deceased and on behalf of the Plaintiff at Stacks Goudkamp. 7. I know from the affidavit of Karina Jane Goodall, affirmed on 11 November 2022, that she was only admitted as a solicitor on 8 April 2022. Prior to that time she was working as a "paralegal", a word now used to describe a solicitor's clerk. Accordingly, it would appear that from 22 November 2017 and 8 April 2022, the claim being brought by the Plaintiff was being controlled by a solicitor's clerk and there is very little evidence of any effective supervision of the clerk by the principal of the firm, Mr Thomas Julius Goudkamp. 8. The Motor Accidents Compensation Act 1999 ("MACA") prescribes a three-year limitation period. As far as the claim currently before the Court is concerned, the three-year limitation period commenced on 1 October 2016 when the deceased died and became statute-barred on 1 October 2019 when three years after the date of death elapsed. The proceedings have, in effect, been commenced two years and almost five months out of time. 1. I am satisfied on the evidence before me that the Plaintiff has provided a full explanation for the delay. Section 109 of MACA is this: "(1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after— (a) the date of the motor accident to which the claim relates, or (b) if the claim is made in respect of the death of a person—the date of death, except with the leave of the court in which the proceedings are to be taken. (2) Time does not run for the purposes of this section from the time that a claim has been referred to the Commission for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued. (3) The leave of the court must not be granted unless— (a) the claimant provides a full and satisfactory explanation to the court for the delay, and (b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident. (4) Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity. (5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim." 1. It is conceded by the Plaintiff that proceedings were not commenced within the three-year limitation period and that time never ceased to run pursuant to s 109(2). The Plaintiff is, accordingly, required to provide a full and satisfactory explanation for the delay as required by s 109(3)(a), and the Plaintiff maintains that she is also required to establish the matter required by s 109(3)(b). 2. As I said, I am satisfied that the Plaintiff has provided a full explanation for the delay. There is before me voluminous affidavit evidence, being affidavits from: Karina Jane Goodall, affirmed 11 November 2022; from Thomas Julius Goudkamp, affirmed on 19 August 2022; and from the Plaintiff herself, affirmed on 29 August 2022. 3. The Plaintiff herself was completely unaware of the provisions of MACA and was completely unaware of any time limits provided by that Act. On the evidence before me, she was never given any advice about time limits by: Ms Ruth Hudson, the solicitor initially acting for her; by Ms Goodall, the clerk who took over the conduct of her matter; or by Mr Goudkamp himself at any material time. 4. There was no suggestion that there was any advice offered to her by the Defendant through her solicitors, or by the Compulsory Third Party Insurer of the Defendant that there was only a three-year limitation. On 17 May 2017, the insurer of the Defendant issued a notice under s 81(4) of MACA admitting liability for the Plaintiff's claim. Inter alia, that notice says this: "..we wholly admit liability for the Late Lucija Buljevic's Compensation to Relatives claim. By admitting liability, we admit: The person insured owed your client a duty of care; and The person insured breached that duty of care (that is we admit that our insured was at fault and caused your client's accident); and Your client suffered some injury, loss or damage as a result of our insured person's negligence". 1. In these proceedings, the Defendant filed a notice of appearance on 21 March 2022 but has not filed any offence. On 26 May 2022, the Defendant filed a notice of motion seeking dismissal of the proceedings pursuant to s 85(4) MACA on the basis that the Plaintiff had failed to cooperate fully with the Defendant by failing to furnish specified information and documents without reasonable excuse. 2. However, that notice of motion was withdrawn some short time later. The appearance of the solicitor for the Defendant has been mentioned by Mr Jones of counsel who appears today for the Plaintiff. The Defendant has chosen not to appear in person, has offered no evidence, and has made no submission at all, nor, for example, filed any written submission. 3. The case is hardly straightforward. At the time of her death, the deceased was 65 years old and in receipt of an age pension. However, she was providing services to each of her daughters to assist them in bringing up their children. She was also providing services to her husband by way of domestic assistance. 4. There is in evidence material which establishes that the funeral expenses amount to $14,415.26. The financial loss of dependency has been calculated by an expert retained by the Plaintiff to an amount to $151,483, reflecting $36,716 for past dependency, and $114,767 for future dependency. 5. That does not include a separate loss of dependency claimed uniquely by Silvija which, to date, slightly exceeds $30,000. That loss is said to be ongoing. In addition, there is also a claim for a loss of domestic services. That has been pleaded in respect of each of the alleged dependents. For the purposes of s 109(3)(b), it is sufficient to note that the claim for domestic services made by the deceased's husband has been valued at over $263,000. 6. The relevant financial threshold is 25% of $521,000 which, if I accept counsel's reliability as a mathematician, is $130,250. The last thing that I claim is any mathematical ability, so I shall assume that counsel's mathematics is correct. The real question here is whether the explanation is satisfactory. 7. Essentially, there is no evidence by Mr Goudkamp or by Ms Goodall as to why advice concerning the limitation period was not ever given to the Plaintiff, nor has any evidence been adduced from Ms Hudson as to why no advice was given to the Plaintiff concerning the limitation period. 8. I accept, however, because it is not the subject of any dispute, that no such advice was ever given to the Plaintiff by anybody. As far as Ms Hudson is concerned, that can be excused by the fact that there was no question of any limitation period arising when she was acting for the Plaintiff. 9. As I have earlier indicated, Ms Hudson ceased to act for the Plaintiff on or about 22 November 2017. Ms Goodall was only admitted to practice as a solicitor on 8 April 2022 after the proceedings were commenced. She, at all times, was a clerk, and no criticism can be levelled at her for not having the ability of a solicitor to advise the Plaintiff of the limitation period. 10. The advice ought to have been provided by Mr Goudkamp but was not. The only inference to be drawn is that it was completely by way of lack of oversight. However, the default of the solicitor cannot be visited upon the Plaintiff. In Smith v Grant [2006] NSWCA 244, Basten JA said this: "[30] These complaints give rise to an issue as to whether an applicant for an extension of time is required to give a 'full' explanation of dilatory conduct of her solicitor. In the present case, the solicitor who made the application was the solicitor whose conduct was in question and no doubt he could have provided such explanation as might have been required. In other cases, where delay has resulted in the expiration of a limitation period, an applicant may have sought alternative legal assistance, with the result that the there might be no explanation forthcoming as to the dilatory conduct of the first solicitor. [31] The submissions put on behalf of the Appellant, by the third party insurer, involved two parts. First, he said that because the solicitor was the agent of the applicant, his acts should be treated as the acts of the applicant. Accordingly, the full and satisfactory explanation required by the Act must include a full and satisfactory explanation of the solicitor's conduct. If the explanation were less than satisfactory, because the solicitor was negligent, then the applicant would fail and the burden of any loss she suffered would properly fall on the professional indemnity insurer rather than the third party insurer. [32] This submission appeared to assume, perhaps unnecessarily, that the Court would be required to make a judgment as to the solicitor's conduct. No doubt it may be possible to infer from the lack of any substantial explanation, that the solicitor was dilatory, and possibly negligent. However, such an inference would not be drawn unless the occasion for explanation by the solicitor had arisen. On one view, it had not: what was required was a full account of the "conduct, including the actions, knowledge and belief of the claimant", and not that of her solicitor. Nor should the two limbs of the definition contained in s 66(2) be taken in isolation from each other. Thus, the test of whether an explanation is satisfactory, requires consideration of whether 'a reasonable person in the position of the claimant … would have been justified in experiencing the same delay'. That would appear to view the matter from the position of the claimant, and not the claimant's solicitor. Accordingly what is relevant is any explanation given by the solicitor to the claimant, or, in the absence of explanation, a delay of a kind which might induce a reasonable person in the position of the claimant to seek an explanation. [33] As noted above, the insurer contended that the conduct of a claimant must be taken to include the conduct of her authorised agent, namely the solicitor. To an extent that contention should be accepted. Thus the claimant seeks to rely upon steps taken by her solicitor and, indeed, his omissions. Those are objectively identifiable matters which may form part of a full explanation. However, for reasons given below, it does not follow that an assessment of whether the explanation is satisfactory or not, requires any normative judgment about the conduct of the solicitor: see [60]. That being so, it follows that an explanation may be a "full explanation" without exploring the blameworthiness, or otherwise, of the solicitor." 1. More recently, in Stein v Ryden [2022] NSWCA 212, Griffiths JA, with whom Macfarlane and Gleeson JJA agreed, said this; "[40] Having regard to this unchallenged evidence by the applicant below as to her state of mind, it was unnecessary for the applicant to adduce further evidence from individual solicitors who had carriage of her matter in order for her to comply with the statutory requirement that she provide a "full and satisfactory explanation" for the delay. Consistently with Walker, the requirement that the claimant provide a full and satisfactory explanation for the delay requires that evidence be adduced as to "the acts and omissions of all relevant persons", but fulfilment of that requirement will turn heavily on the particular circumstances of the case. As noted above, in Rahman, it was made clear at [42] that a more elaborate explanation of why the appellant's solicitors in that case had failed to carry out her instructions would not have contributed to an evaluation of whether or not the appellant's explanation was a satisfactory one. That is also the case here. The applicant gave unchallenged evidence, which was accepted by the primary judge, that she was entirely unaware at all relevant times of any limitation requirements. Her explanation was sufficiently full to enable an evaluation to be made of whether it was satisfactory in the sense that a reasonable person in the position of the applicant (ie one who had no knowledge of the limitation periods) would have been justified in experiencing the same delay. [41] In the particular circumstances of this case, the primary judge erred in finding that the lack of direct evidence from the solicitors who had carriage of the applicant's matter was fatal to her application for leave." 1. In Smith v Grant, which I have earlier cited, Basten JA said at [60]: "[60] Accordingly, the weight of authority under the 1988 Act in this Court favoured the view that if a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could provide a satisfactory explanation for delay in commencing proceedings. That is consistent also with the approach revealed in Khoury v Linfox Australia Pty Ltd [2006] NSWCA 51 at [22] (Beazley JA, Tobias JA agreeing) in relation to the 1999 Act." 1. More recently, in Rahman v Al-Maharmeh [2021] NSWCA 31, Brereton JA, with whom Meagher and Leeming JJA agreed, said this: "[39] It must be regarded as settled that the 'full account of the conduct' referred to in the first sentence of s 66(2) is not confined to that of the claimant personally but extends to the conduct of those who have acted or purported to act on behalf of the claimant, so far as it is relevant to the delay. However, this does not mean that the explanation is required to include 'the actions, knowledge and belief' of the solicitors, as distinct from the claimant: it is the claimant who must provide the explanation for the claimant's delay in commencing proceedings. In Walker, Allsop P said: [55] The claimant is responsible for providing the explanation: s 109(3)(a). If, as here, he or she is mentally incapacitated, that practical responsibility will fall to his or her tutor on his or her behalf. That the explanation should cover the conduct of agents (such as a solicitor) or those purporting to act on the claimant's behalf, does not broaden the meaning of 'claimant' in s 66(2) to 'the person who makes or is entitled to make the claim and any person acting or purporting to act on his or her behalf.' No warrant appears in the text or structure of the MAC Act or these provisions for this interpretation. [56] Thus, the phrase 'including the actions, knowledge and belief of the claimant' should not be read as 'including the actions, knowledge and belief of the claimant and any person acting or purporting to act on his or her behalf.' [40] The gravamen of the primary judgment, which is reflected in the respondents' submissions in this Court, was that the explanation did not include evidence from the solicitors explaining why her instructions had not been acted upon in a timely manner. In particular, there was no evidence from Mr Coxall (who presumably had the conduct of the matter from December 2018 until he left the firm), or Mr Bazouni (the principal, who was a party to the 'miscommunication'). Nor did the evidence descend to explain in any sensible way what was the 'miscommunication'. [41] There is no doubt that in this respect, the explanation could have been fuller than it was. In particular, it could have explained why the solicitors apparently did nothing, and what was the 'miscommunication' between Mr Ilic and Mr Bazouni. However, the evidence of the appellant and Mr Ilic did provide an account of the conduct of the solicitors, to the extent that it appeared that though instructed to commence proceedings, they did nothing until after Mr Coxall had left without drafting a statement of claim; they did nothing until the appellant contacted them on 15 February; Mr Ilic reviewed the file on 26 February and drafted a statement of claim on 28 February and forwarded it to Mr Bazouni after the 4 March conference; and thereafter, despite persistent inquiries by the appellant, they appear to have done nothing until June. What the explanation did not include was an explanation as to why the solicitors failed to implement the appellant's instructions and did nothing. However, that was not a matter within the control or knowledge of the appellant personally, as distinct from her solicitors, and while her account of the conduct for the relevant period was required to cover the relevant conduct of her solicitors, that requirement did not extend to including 'the actions, knowledge and belief' of the solicitors. [42] It is not apparent how evidence explaining why the solicitors failed to implement the appellant's instructions would have affected the adequacy of her explanation. Hypothetically, the solicitors might have explained that their failure to act was due to one or more of the following, in decreasing order of likelihood: (1) the departure of Mr Coxall and inadvertence by his successor until the appellant followed up; (2) neglect; (3) incompetence; (4) frustration by technological or other problems; and (5) wilful default. Whichever of those it was, which was and apparently remained unknown to the appellant herself, would have made no difference to the adequacy of the appellant's explanation for the purpose of judging whether in those circumstances others in her position would be justified in experiencing the same delay, because every one of them was beyond the appellant's personal control and provided an explanation for her delay. The explanation was sufficiently full to enable an assessment to be made of whether it was satisfactory. A more elaborate explanation of why the solicitors failed to act would not have contributed to an evaluation of whether or not the appellant's explanation was a satisfactory one." 1. Whatever reason could be given by Mr Goudkamp has not been given. The inference is that was probably due to inadequate oversight by him of what his junior solicitors/clerks were doing that led to the failure of his firm to give the requisite advice to the plaintiff. Accordingly, I am satisfied that there is a full and satisfactory explanation for the delay of the Plaintiff in commencing the proceedings on 21 February 2022. 2. For those reasons, pursuant to s 109 of MACA, I extend the limitation period for bringing a claim arising out of the death of the late Lucija Buljevic on 1 October 2016 until the 21 February 2022. By consent, each party will pay her own costs of this application. 3. Is that sufficient for your purposes, Mr Jones? JONES: Nothing further, thank you. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 March 2023