Lawrence v Mills [2012] NSWDC 4

District Court New South Wales

Medium Neutral Citation: Lawrence v Mills [2012] NSWDC 4 Hearing dates: 25 November and 6 December 2011 Decision date: 03 February 2012 Jurisdiction: Civil Before: Judge Peter Johnstone Decision: Plaintiff's motion allowed Defendant's motion dismissed Catchwords: TORT - motor accident - failure to make a claim within 6 months - failure to commence proceedings within 3 years - whether a full and satisfactory explanation for the delay provided - whether the likely total damages to be awarded surpass the prescribed threshold Legislation Cited: Motor Accidents Compensation Act 1999 Cases Cited: Ellis v Reko Pty Limited [2010] NSWCA 319 Hayek v Trujillo [2007] NSWCA 139 Hickey Transport Pty Ltd v Gordon [2008] NSWCA 167 McNamara v Fitzgibbon [2005] 274 Russo v Aiello [2003] HCA 53 Sinclair v Darwich [2010] NSWCA 195 Walker v Howard [2009] NSWCA 408 Category: Interlocutory applications Parties: Mark Lawrence (Plaintiff) Matthew John Mills (Defendant Representation: Ms E Welsh of counsel (Plaintiff) Mr J Guihot of counsel (Defendant) Brydens Law Office (Plaintiff) Lee & Lyons, Lawyers (Defendant) File Number(s): 2011/145932 Publication restriction: None

REASONS FOR Judgment 1The plaintiff was injured in a motor accident on 29 September 2004 when the vehicle being driven by the defendant collided with the vehicle he was driving. He commenced these proceedings for damages on 4 May 2011 alleging that the accident was caused by the defendant's negligence. 2The defendant filed a motion seeking dismissal the plaintiff's proceedings, contending that the plaintiff was not entitled to commence or maintain the proceedings due to delay, being the late claim and the late commencement of proceedings. The plaintiff filed a counter motion seeking the court's leave to proceed. 3The defendant contends that the plaintiff did not lodge his claim form until 20 June 2006, some 21 months after the accident. A claim in respect of injury received in a motor accident must be made within 6 months of the accident: s 72(1) of the Motor Accidents Compensation Act 1999 (the MAC Act) . If court proceedings are commenced on a late claim, an application may be made to have the proceedings dismissed, and the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay: s 73(5) and s 73(7) of the MAC Act . 4The plaintiff did not commence these proceedings until over 6 years after the accident. A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after a motor accident, except with the leave of the court, which must not grant leave unless the claimant: (a) provides a full and satisfactory explanation for the delay: s 109(3)(a) of the MAC Act ; and (b) demonstrates that the total damages of all kinds likely to be awarded are not less than 25% of the maximum amount that may be awarded for non-economic loss under s 134 as at the date of the motor accident: s 109(3)(b) of the MAC Act . 5A reference to a "full and satisfactory explanation" is dealt with in s 66(2) of the MAC Act , which provides: "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 providing of 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." 6The full account required by s 66(2) of the MAC Act is not limited to the claimant personally, without regard to those who acted on his behalf, in so far as that conduct was relevant to the delay: Walker v Howard [2009] NSWCA 408 at [72] and [106]. Nor is it limited to actions and it must include the knowledge and belief of the claimant: at [77]. 7The word "full" has been held to be a word that must be given its semantic significance, and it means that the explanation must be set out and it is not sufficient that the court should be asked to draw inferences from correspondence, et cetera, at least where that is not obvious: Ellis v Reko Pty Limited [2010] NSWCA 319 at [19]. The explanation must address acts and omissions relevant to the delay, so as to enable the court to evaluate the reasons for the delay. 8The defendant says that the explanation provided for the plaintiff's delay is neither full nor satisfactory. He also says that the plaintiff has not demonstrated that the total damages likely to be awarded are not less than 25% of the maximum amount that may be awarded for non-economic loss under s 134 as at the date of the motor accident: s 109(3)(b) of the MAC Act . It was common ground that in this case 25% of the maximum amount that may be awarded for non-economic loss is $82,250.00 ($329,000.00 ÷ 4).