DANDASHLI v DANDASHLI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY JA AND COHEN AJA 16 December 1996 [1996] NSWCA 138 Handley JA In this matter Mr Donohoe QC moves for leave to appeal from a decision of Newton DCJ given on 15 November 1996 in which he dismissed a notice of motion on behalf of the defendant for orders under a number of sections in the Motor Accidents Act. The application for leave to appeal has only been pressed in reliance on s5OA and s52(4) of the Act. The plaintiff was injured in a motor vehicle accident on 21 January 1992. He was 16 years of age at the time. His claim on the defendant's insurer was lodged on 2 February 1996. It is apparent that more than 3 years had then elapsed since the accident and therefore s52(4) prima facie applied and the proceedings were statute barred unless the plaintiff could obtain an order under that section permitting the proceedings to be brought out of time by leave. SSOA inserted by Act No 55 of 1955 provides that: "A claimant is not entitled to commence court proceedings against another person until the claimant has given to that person's insurer full details of the claimant's injuries, disabilities, impairments, where appropriate the prognosis for future recovery and of any claims for economic and other losses claimed as damages". The purpose of the section, as its terms indicate, is to enable the insurer, so far as practicable, to make a proper assessment of the claimant's full entitlement to damages. A further purpose indicated by the heading to the section is the facilitation of settlement before court proceedings are commenced. Mr Donohoe has pointed to a number of deficiencies in the claim form submitted on behalf of the plaintiff, and it is fair to say that on some the claimant has a fair arguable point. S50A has to be read, however, with s52(1A)(b), which provides that: "A claimant is not entitled to commence court proceedings in respect of a claim until ninety days have elapsed after the details required by SSOA were given to the other person's insurer'. In fact proceedings were not commenced until 27 June, some 4/2 months after the lodgment of the claim. During that time there was no suggestion by the insurer that there were any deficiencies in the claim submitted by the plaintiff. In the circumstances I consider that any shortcomings in compliance with s5OA have been waived by the insurer. That this was its attitude is not surprising in view of its letter of 25 March 1996 which rejected the claim. In the circumstances I consider that the claimant does not have a fair arguable case based on non-compliance with s50A, sufficient to entitle him to leave to appeal. The remaining ground concerns the provisions of s52(4) as amended. This provides, so far as material: 2 UNREPORTED JUDGMENTS "The 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)... except with the leave of the court in which the proceedings are to be taken". The plaintiff commenced proceedings prior to obtaining the necessary leave. Mr Donohoe's submission is that s52(4) imposes a statutory condition precedent to the commencement of proceedings and that proceedings commenced out of time without the prior leave of the Court must be dismissed. Where a statute imposes a condition precedent of a procedural nature which must be satisfied prior to the commencement of proceedings, it will be difficult for a court to treat the condition as a condition subsequent which can be satisfied after proceedings have been commenced as that will be contrary to the intention of Parliament as expressed in the statutory language. The provisions of s52(1A) appear to be of this character. However in my judgment s52(4) has a different operation. It is in the common form of a statute of limitations. Despite its language it does not impose a procedural condition precedent to be satisfied before the commencement of litigation. The section is substantially in the same form as sections contained in bankruptcy and company legislation in Britain, Australia and elsewhere in the Commonwealth for a very long time. In re Saunders (1996) 3 WLR 473 Lindsay J undertook a comprehensive review of the decisions over the last hundred years on provisions requiring the leave of the Court before proceedings are commenced or continued against a bankrupt or a company in liquidation. There has been a long history of decisions that proceedings commenced without leave contrary to such provisions are not nullities but irregularities capable of being cured by the subsequent grant of leave. Lindsay J held that since the Insolvency Act 1986 had refrained from employing emphatic language making retrospective leave impossible but had used language having clear roots in the earlier statutes leave might, in appropriate circumstances, be granted with retrospective effect after the proceedings had been commenced. Many of the cases discussed by Lindsay J were Australian cases including a number in this State. Given the long history of decisions on provisions which, in my judgment are substantially similar to s52(4), it seems to me that this Court would adopt the same interpretation of s52(4). This has certainly been the practice in this State since the Motor Accidents Act commenced, and to my knowledge this is the first time that the point has been taken on behalf of an insurer. It is not without significance that the point was not taken before Newton DCJ. I do not see in s52(4) the emphatic language which would be required before this Court would adopt a different interpretation of a provision of this kind. In my opinion the proposed appeal does not have sufficient prospects of success to warrant the grant of leave. I propose therefore that leave should be refused with costs. Cohen AJA I agree that leave should be refused and the orders proposed. Leave to appeal is refused with costs.