District Court New South Wales Medium Neutral Citation: Ibrahim v Frity [2023] NSWDC 169 Hearing dates: 24 May 2023 Date of orders: 30 May 2023 Decision date: 30 May 2023 Jurisdiction: Civil Before: Ainslie-Wallace ADCJ Decision: See orders at paragraph [27] Catchwords: PRACTICE AND PROCEDURE – application by plaintiff to adjourn motion for leave to commence proceedings to be heard with the substantive matter – defendant's application for dismissal of the proceedings Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), s 109, s 134 Motor Accidents Compensation (Determination of Loss) Amendment Order 2015 Cases Cited: Dijakovic v Perez [2015] NSWCA 174 Eades v Gunestepe [2012] NSWCA 204 Harika v Tupaea [2003] NSWCA 332; 58 NSWLR 675 Hooker v Gilling [2007] NSWCA 99 Sinclair v Darwich [2010] NSWCA 195 State of NSW v Gillett [2012] NSWCA 83 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Category: Procedural rulings Parties: Plaintiff: Micheal Ibrahim Defendant: Christo Salah Frity Representation: Counsel: Plaintiff: Mr K Andrews Defendant: Mr M Nesbeth Solicitors: Plaintiff: AJB Stevens Defendant: Sparke Helmore Lawyers File Number(s): 2022/320180 Publication restriction: None Judgment 1. On 28 May 2016 the plaintiff's car having stopped at a pedestrian crossing was hit in the rear by a car driven by the defendant. The accident was reported to the police on 25 July 2016. On 31 August 2016 an insurance claim form was lodged with QBE Insurance which confirmed receipt of the claim on 6 October 2016. 2. On 18 January 2018 the insurer accepted liability for the accident. 3. On 23 November 2020 the insurer made application for assessment by the Personal Injury Commission ("PIC"). Three preliminary conferences between the parties and the PIC took place and an assessment hearing was conducted on 26 November 2021. The certificate of determination of that hearing was produced on 7 October 2022. The award was rejected by the plaintiff. 4. The plaintiff commenced proceedings on 26 October 2020 when a statement of claim was filed in the District Court. A statement of particulars was filed on 25 November 2022. 5. On 20 December 2022 the defendant filed a notice of motion seeking an order that the proceedings be dismissed pursuant to s 109 of the Motor Accidents Compensation Act 1999 ("the Act"). 6. On 7 March 2023 the plaintiff filed a notice of motion in the following terms: 1. The defendant's notice of motion filed on 20 December 2022 be stood over to be heard with the substantive proceedings with evidence in one being evidence in the other. 2. The plaintiff be granted leave pursuant to s 109 of the Act to extend time for bringing these proceedings. 3. Order 2 be stood over to be heard at the time of the substantive proceedings. 1. The defendant opposed the orders sought by the plaintiff. 2. During the hearing of the motion, it was agreed that the plaintiff's application to adjourn both motions to the hearing of the substantive proceedings be heard first. It was also foreshadowed that if that application was unsuccessful, the plaintiff would seek an adjournment in order to put on further evidence addressing the statutory requirements of s 109 of the Act. Counsel for the defendant indicated that the defendant would not oppose the adjournment for that reason, subject of course to the question of costs of the adjournment being reserved. 3. In effect then, the hearing before me was limited to the determination of whether the hearing of the two motions, for leave and dismissal, be heard before or at the time of any hearing of the substantive issue. 4. Section 109 of the Act provides as follows: "(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 Authority 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. In relation to the meaning of "a full and satisfactory explanation" regard must be had to s 66(2) which provides as follows: "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." 1. In essence, the plaintiff argued that the assessment of damages for injuries suffered by the plaintiff in the accident and any ongoing injuries would require analysis of the medical reports and examination of the medical experts which should not be assessed on an interlocutory basis but rather required a full hearing to properly be assessed. 2. The plaintiff relied on Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 533, where the High Court said: "We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question." 1. Further in State of NSW v Gillett [2012] NSWCA 83 at [108] the New South Wales Court of Appeal said: "The respondent's submission pointed out the difficulty of the course chosen by the State in having the limitation issue determined as a separate question. The courts have frequently warned of the undesirability of this process: see Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514 at 533. Had the matter been left to trial, the evidence would have been before the court as to what the respondent knew, what he believed, and when he found certain things out." 1. In Hooker v Gilling [2007] NSWCA 99 at [63] the Court referred to the above quoted passage from Wardley and, while the matter before the Court of Appeal concerned the Act, it was not in relation to s 109. 2. In short then, the plaintiff argued that this Court should heed the cautionary note sounded in Wardley and those that followed, and not have a separate determination of the issue of leave pursuant to s 109. 3. The defendant argued that the very terms of s 109 require the separate determination of this issue as without that determination, the plaintiff has no entitlement to commence proceedings. 4. To grant leave pursuant to s 109, the Court must make two evaluative determinations, first whether the plaintiff has provided a full and satisfactory explanation for the delay in seeking to bring the proceedings. The second involves an assessment of the damages (of all kinds) likely to be awarded as a percentage of the maximum amount of damage to be awarded for non-economic loss pursuant to s 134 of the Act. It was agreed that at the time of the accident, 25 per cent of that figure was $127,750 . The Motor Accidents Compensation (Determination of Loss) Amendment Order 2015 provides that the maximum amount of damages for non-economic loss as at 1 October 2015 was $511,000. 5. The plaintiff's argument focussed principally, although not exclusively, on the difficulty in making the assessment of the damages likely to be awarded. 6. In Eades v Gunestepe [2012] NSWCA 204 Basten JA said at [47], referring to Harika v Tupaea [2003] NSWCA 332; 58 NSWLR 675: "As was submitted by the respondent, a useful start point for the application of s 109(3)(b) is Harika. There Mason P said: "25 An application under s 43A(7) must proceed on evidence (Aiello at [13]). But it is not the trial of the claim and it is relevant that the parties fought this particular application without cross-examining any of the witnesses. When parties join issue on the basis of tendering medical reports that take a range of positions, the court should be very slow to resolve the matter adversely to the claimant on the basis of medical reports that are debatably favourable to the insurer on the threshold issue but are contradicted by the claimant's medical evidence."" 1. His Honour continued and referred to Sinclair v Darwich [2010] NSWCA 195, where the Court of Appeal agreed with Young JA who said: "34 What the Court needs to do is to assess the likely result of damages after taking contributory negligence into account. … 36. It seems to me that the simple meaning of the word "likely" in the context of this Act is that there is a "real chance" or a "real prospect" or that such may well be the situation." 1. The authorities make it clear that what is to be determined at an interlocutory stage requires an evaluation which of itself understands the limitations under which the court hearing the application is operating. 2. So much is made plain in Dijakovic v Perez [2015] NSWCA 174 at [109], [117]-[119] where the Court described the evaluative approach required in s 109: "109. The primary judge was required under s 109(3)(b) to assess the likely result of damages if the claim succeeds. This involved a predictive exercise. It is well established that the term "likely" in s 109(3)(b) means a "real chance" or a "real prospect": …. As Basten JA explained in Eades v Gunestepe at [10], the relevant shade of meaning of "likely" in the present context is conveyed by "the notion of a substantial, as distinct from a remote chance": (citations omitted) … 117. There are two difficulties with her Honour's approach. The first is that it ignores that satisfaction of the condition in s 109(3)(b) is based on a preliminary enquiry involving a cursory assessment of available material: Eades v Gunestepe at [8] (Basten JA). 118. The other difficulty is that her Honour's attention was not drawn to relevant authority in this Court which has considered how conflicting medical evidence should be approached on such an application. Those authorities emphasise that an application for leave under s 109 is not the trial of the claim. Where the parties join issue on the basis of tendering medical reports that take a range of positions, without cross-examining any of the witnesses, "the court should be very slow to resolve the matter adversely to the claimant on the basis of medical reports that are debatably favourable to the insurer on the threshold issue but are contradicted by the claimant's medical evidence": Harika v Tupaea at [25] (Mason P). 119. Although the observation of Mason P in Harika v Tupaea related to a different section, that is s 43A(7) of the Motor Accidents Act, that section used the same formula of words "likely to be awarded" as is used in s 109(3)(b). Further, as Hoeben JA observed in Eades v Gunestepe at [48], s 43A(7) performed a similar, but not identical, function to that of s 109(3)(b)." 1. Finally, and I must add not necessarily conclusively, in none of the reported cases in which a determination of the s 109 issue has been considered by the New South Wales Court of Appeal, has the Court referred to either in terms or otherwise, to the caution sounded in Wardley. 2. I am satisfied that the question of leave to commence proceedings pursuant to s 109 is one that should be determined as a separate, interlocutory matter and thus I refuse to make the orders sought in the plaintiff's motion that is to adjourn both the application for leave to commence proceedings and the defendant's application for dismissal of the proceedings already filed, to the hearing of the substantive proceedings. 3. It was agreed that in the event the order for adjournment as sought by the plaintiff was refused, the matter would be listed for further directions as to the filing of evidence in relation to the s 109 hearing. Orders 1. I make the following orders: 1. Dismiss the plaintiff's application to adjourn both the application for leave to commence proceedings and the defendant's application for dismissal of the proceedings already filed to the hearing of the substantive proceedings. 2. The question of costs of this application is reserved. 3. Matter stood over before the Judicial Registrar on Friday 9 June 2023 for case management orders directing the plaintiff to file any affidavits on which he proposes to rely in support of the leave sought pursuant to s 109 of the Motor Accidents Compensation Act 1999 (NSW). 4. The plaintiff's motion seeking leave and the defendant's notice of motion seeking a dismissal of these proceedings pursuant to s 109 of the Motor Accidents Compensation Act 1999 (NSW) be determined at the same time. ******** Amendments 30 May 2023 - Typographical error at [27](3), "May" replaced with June 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: 30 May 2023