OSMAN v SINGH SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, SHELLER JA and ABADEE AJA 28 October 1996 [1996] NSWCA 413 SECTION 52(1A) MOTOR ACCIDENTS ACT 1988 — DISTRICT COURT RULES Pt 24C r 8 — FAILURE OF PLAINTIFF TO COMPLY WITH STIPULATED TIME PERIODS MAY BE RELIED ON AS A DEFENCE Clarke JA. This is an application for leave to appeal from a judgment of Judge Nash given on 1 August 1996 at the termination of the hearing of a Notice of Motion brought by the opponent, seeking an order that the claimant's claim be struck out for breach of section 52(1A) of the Motor Accidents Act 1988. The factual background was as follows: The claimant was injured in a motor vehicle accident on 17 June 1992; he first saw a solicitor concerning the injuries he received on 20 November 1995; his solicitor then sent by post an injury claim form to the insurers of the opponent on 13 December 1995; that form was received by the insurer on 20 December 1995 and accordingly, so it seems to me, service was effected on that date. Shortly after sending the claim form the solicitor for the claimant filed a statement of claim in the District Court; that was on 15 December 1995 and the statement of claim was served on 19 December 1995. There seems to have been an hiatus following the service of those documents but, on 17 April 1996, the opponent filed his original Notice of Motionseeking the orders which were made by Judge Nash, albeit as a consequence of an amended Notice of Motion. At the hearing before Judge Nash the claimant argued that his Honour should not entertain the application because the opponent had failed to move in accordance with the District Court Rules, Pt 24C r 8. That rule relevantly provides that a defendant may not move a Court to strike out an action under the Act on the ground that the action was commenced outside a relevant time period as prescribed by operation of section 52 of the Motor Accidents Act, unless the defendant so moves within two months after service on the defendant or his insurer of the statement of claim bringing the action. The basis of the opponent's claim which was ventilated in the hearing before Judge Nash was that the statement of claim was filed before six months had elapsed since the Notice of Claim had been given to the opponent. The claimant submitted that as more than two months had passed since service of the statement of claim the Court should dismiss the Notice of Motion pursuant to the provisions of the rule that I have mentioned. His Honour Judge Nash did not agree with the submission. His Honour held that that rule did not apply to the substance of the application made by the opponent and, accordingly, his Honour did not strike out or dismiss the Notice of Motion but made the order sought by the opponent. It seems to me that there can be no doubt that section 52(1A) of the Motor Accidents Act lays down a time period in respect of which proceedings may not be brought, and it follows that where rule 8(c) speaks of a relevant time period 2 UNREPORTED JUDGMENTS prescribed by operation of s 52 it must be speaking of the time period in section 52(1A) as well as in other parts of that rule. I do not know upon whatbasis his Honour thought that the rule was not intended to apply to the motion brought before him, but it is clear to me that his Honour was in error in that view. The consequence of that conclusion is not necessarily that leave to appeal should be granted. Leave would not be granted if, for instance, the appeal would be a fruitless exercise or a waste of the time of the parties and the court. Section 52(1A) lays down a prohibition against the commencement of court proceedings until after a particular period has elapsed since the service of notice of the claim. The section could be viewed as providing either a condition precedent to the maintenance of Court proceedings or as an element in the cause of action. What is clear, however, is that it prohibits the commencement of proceedings where the time provisions have not been complied with. My provisional view is that the section lays down a procedural requirement, satisfaction with which is essential to the successful maintenance of a claim. In other words, that the section bars the remedy but not the right. However, it is unnecessary for me to articulate a concluded view on the point, for whichever approach is taken it would follow that a plaintiff, who had not complied with section 52(1A), would not be able successfully to maintain a claim to judgment in the event that the defect in the procedure was relied upon by the defendant. There can be no doubt that the opponent in this case is relying on the failure of the complainant to comply with section 52(1A) and, once the opponent brings that intention to the notice of the Court, it is clear to me that the Court will be obliged to dismiss the claim on account of the claimant's non-compliance. In practical terms that means that, although this Court could solemnly set aside Judge Nash's finding, it would still be open to the opponent to file a defence raising the claimant's failure to observe the time limits in the section whereby the Court would, it seems to me, be obliged to dismiss the claimant's action. In argument, counsel for the claimant submitted that the rule in Pt 24C Rule 8, was part of a complimentary scheme providing for timely action on the part of both plaintiff and defendant. The section requires the plaintiff to observe certain time limits and, in a complementary fashion, the rule obliges the defendant to observe time limits before it could take advantage of any failing on the part of the plaintiff to observe those limits. That was, as I understood it, how the argument ran. In my opinion the argument cannot be accepted. It is clear that the rule cannot detract from or limit the provisions of the Act. Those provisions must be given full force and, while it may be that the benefit of the time limits in the Act may be able to be waived by the defendant, the rule cannot derogate from the full force and effect of the Act. In all these circumstances it is my opinion that to grant leave to appeal to the claimant would involve the Court in a fruitless exercise because the opponent could secure the same result simply by including a relevant defence in its statement of defence. In these circumstances, in my view, the appropriate order is that the application for leave to appeal be dismissed. The Court orders that each party should bear and pay its own costs of the proceedings. Sheller JA. I agree. Abadee JA. I agree also. URJ OSMAN v SINGH (Abadee JA) Orders accordingly. Counsel for the appellant: TA GOTTERSON Solicitors for the appellant: KEDDIES Counsel for the respondent: K PIERCE Solicitors for the respondent: ABBOTT TOUT