RASIM KOC v BEHZAD KOSRAWI [2000] NSWCA 307

Reported Decision : [2000] 32 MVR 475

New South Wales Court of Appeal

CITATION : RASIM KOC v BEHZAD KOSRAWI [2000] NSWCA 307 FILE NUMBER(S) : CA 40313/00 HEARING DATE(S) : 17 October 2000 JUDGMENT DATE : 17 October 2000

PARTIES : RASIM KOC v BEHZAD KOSRAWI JUDGMENT OF : Mason P at 1; Sheller JA at 22; Heydon JA at 23

LOWER COURT JURISDICTION : District Court LOWER COURT DC 8091/99 FILE NUMBER(S) : LOWER COURT Twigg DCJ JUDICIAL OFFICER :

COUNSEL : Claimant: C A Evatt; M K Rollinson Opponent: D J Russell SOLICITORS : Claimant: Carters Law Firm Opponent: W R Harvey & Associates CATCHWORDS : Dismissal of action - failure of claimant to co-operate in the conduct of dispute to bring to settlement - Motor Accidents Act ss48A, 50A and 52(1A) - failure to reply to offer of settlement before proceedings commence - claimant's failure to produce tax returns - claimant's failure to arm opponent with documents - breach of Part 9 Rule 27 District Court Rules - leave to appeal refused. (ND) DECISION : Leave refused with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40313/00

MASON P SHELLER JA HEYDON JA

Tuesday 17 October 2000 Rasim KOC v Behzad KOSRAWI

JUDGMENT 1 MASON P: Mr Evatt for the claimant has presented his arguments with candour and clarity. I am of the view that the Court should refuse leave in this matter. 2 On 9 November 1996, the claimant was injured in a motor vehicle accident. He was a front seat passenger in a car driven by the opponent. The car failed to stop at a stop sign and collided with another vehicle. The accident was reported to the police that day. 3 A claim under the Motor Accidents Act 1988 was made apparently on about 8 May 1997. On 26 June 1997 the opponent's solicitors sought detailed particulars. There was a response on 26 July 1997, although it did not include requested income tax assessment notices for the period 1993 to date. 4 There is as yet untested medical evidence of permanent disability to the neck and spine and consequential headaches and depression. 5 The claimant filed a statement of claim in the District Court on 28 October 1999, entering it in the motor accidents list. In this respect the proceedings were commenced within the three year time permitted by s 52 of the Motor Accidents Act. The claimant was however under various obligations to co-operate in the conduct of the dispute so as to bring it to settlement or trial speedily. These duties applied both before commencing proceedings (see Motor Accidents Act ss48, 50A and 52(1A)) and during the currency of the proceedings (see District Court Rules). 6 The opponent's insurer is NZI Insurance. A letter from that insurer dated 7 June 1999 to the claimant's new solicitors discloses that breach of duty of care was admitted on 31 December 1997; the matter was viewed by both sides as capable of and appropriate for settlement; various medical reports had been secured and medico-legal appointments had taken place with doctors appointed by the insurer; and notwithstanding that full particulars had not been forthcoming to its satisfaction, the insurer was in a position to formulate a settlement offer, which is what it did in that letter. The terms of the settlement offer have not been disclosed to the Court. 7 There was in the affidavit of Valentino Musico dated 28 February 2000 unchallenged evidence that "no reply was put by the plaintiff to this offer before the commencement of litigation". 8 On 28 February 2000 the opponent filed a notice of motion seeking as its principal order that the case be dismissed for breaches of the Procedural Guide - Motor Accidents List; ss48, 50A, 52(1A)(b) and (c) of the Motor Accidents Act; and Part 9 Rule 27 of the District Court Rules. The notice of motion was supported by an affidavit of the opponent's solicitor that gave the history of the claim and made various complaints about the claimant's conduct of the claim before and after litigation commenced. 9 Judge Twigg QC found that there were clear breaches of ss48, 50A, 52(1A)(b) and (c) of the Motor Accidents Act and breach of Part 9 Rule 27 of the District Court Rules. 10 In part, the finding appears to turn upon the claimant's failure to produce tax returns and assessments for the period after 1993. I do not read this as stating that tax irregularities in themselves preclude a court from awarding damages for loss of earning capacity (see Georgianis v Castrati (1988) 49 SASR 371). Rather, the thrust of the criticism is the claimant's failure to arm the opponent with documents that would have enabled him to test the large claim for economic loss, whether that claim is based on $1000 per week net lost profits in relation to the claimant's pre-accident business or based on loss stemming from the alleged forced sale of such business. 11 If the application turned upon the issue of non-production of post-1993 tax returns, I would grant leave to appeal because it appears that such returns do not exist. Non-production suggests a serious tax irregularity but such irregularity does not in itself, and I emphasise those words, preclude a claim for economic loss or establish non-compliance with the request for particulars or Part 9 Rule 27 (4)(c). 12 The order under appeal does not turn upon this point. Among the reasons for dismissal - and sufficient in its own right - was the finding of breach of s 52(1A)(c) of the Motor Accident Act. The last-mentioned provision is clear and draconian in its application to at least one aspect of the claimant's conduct. It precluded the commencement of court proceedings until twenty eight days had elapsed from the date on which the claimant's response to a settlement offer from the opponent's insurer had been communicated to that insurer. As indicated already, such offer was made on 7 June 1999 and no reply was given to it before commencement of proceedings. 13 Mr Evatt suggested that we could construe the letter providing particulars as a communicated rejection of the settlement offer. I disagree. He also submitted that an offer limited in time, such as this one was, did not engage s52(1A)(c) after the period of time had elapsed. I would also reject that submission in light of what to me are the clear terms of the provision. 14 It was also submitted that the primary judge had not addressed this issue. I disagree, in light of the terms of the notice of motion and the passage on pp1-2 of his Honour's judgment. In my view, that finding gave sufficient reasons in light of the unchallenged evidence. 15 It is clear that his Honour's judgment extended to other breaches of the nominated provisions of the Motor Accidents Act and embraced, albeit tangentially, breach of Part 9 Rule 27 of the Rules. The correctness of those findings (at least in part) is not as clear, having regard to the fact that the claimant did give particulars of his economic loss claim and was asked in terms to provide copies of income tax returns that had in fact been submitted. 16 His Honour made findings about general lack of co-operation based presumably upon the failure to turn up at early settlement meetings. Again, it is not necessary to visit that matter, because the judgment can stand on the one point I have indicated. In my view, that point is sufficient reason to refuse leave to appeal. 17 When his Honour dismissed the proceedings, he made reference to Pt 26 r5B in oversight of the fact that that rule had been repealed in late 1999. Presumably that matter was not drawn to his Honour's attention. 18 The Court had a little difficulty in drawing from Mr Evatt a clear concession that, absent r5B there was power to dismiss the proceedings. Nevertheless, I am satisfied that there was power to dismiss summarily proceedings which were doomed to failure. I would refer to Pt 11A r3 of the District Court Rules. Alternatively, such power may be inherent in or derived from s 52 of the Motor Accidents Act in its own right. 19 What is clear is that the dismissal was ordered summarily and that the claimant was not by reason of that dismissal precluded from making an application to extend the time for bringing fresh proceedings. I would wish to make it plain however that I express no view as to his prospects, which will be governed by s 52 of the Motor Accidents Act, and, if any such application were made, would depend very much upon the extent to which a pattern of past non-co-operation was put behind. 20 In his written submissions, counsel for the claimant submitted that the trial judge should have considered staying the proceedings in part, or dismissing them in part. This submission was directed primarily at the tax assessment arm of the judgment in its impact on the economic loss claim. I do not think his Honour was obliged to address such an argument, which does not appear to have been put. After all, the claimant was making a single claim for damages and his Honour was entitled to address that in its totality. But in any event the outcome which I propose does not turn upon that matter. 21 In my view, leave should be refused with costs. 22 SHELLER JA: I agree. 23 HEYDON JA: I agree. 24 MASON P: That is the order of the Court. **********