Kalazich v Yang [2012] NSWDC 261

District Court New South Wales

Medium Neutral Citation: Kalazich v Yang [2012] NSWDC 261 Hearing dates: 12 October 2012 Decision date: 17 October 2012 Before: Neilson DCJ Decision: Motion dismissed. I direct that each party pay his own costs of the Notice of Motion. Catchwords: PRACTICE & PROCEDURE - validity of notice issued under s 110 of Motor Accidents Compensation Act - plaintiff's delay - service of notice upon a claimant's solicitor where claimant is legally represented - interpretation of s 222 of Motor Accidents Compensation Act - law of agency - manner and form of notification - meaning of plaintiff's receipt of notice Legislation Cited: Motor Accidents Compensation Act 1999 Cases Cited: Chan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292 David v Moss (Unreported, Charteris DCJ, 1 September 2011) Schinnerl v The Commissioner of Police [1992] NSWCA 224 VEAN (2002) v The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311 Category: Procedural and other rulings Parties: Heng Jin Yang (Applicant) Leigh Kalazich (Respondent) Representation: Ms C Allen (Applicant) Mr D Stanton (Respondent) Ms T Moxham (Applicant) Ms J Nehme (Respondent) File Number(s): 2012/232535

Judgment 1This is a notice of motion. The first prayer for relief in the notice of the motion is this: "Pursuant to UCPR 13.4 the Defendant seeks an order that the Plaintiff's statement of claim be dismissed on a full and final basis for the Plaintiff's failure to comply with s 110 of the Motor Accidents Compensation Act 1999 (as amended)." I shall refer to the Motor Accidents Compensation Act 1999 as "MACA". 2The plaintiff was born on 27 October 1963. He was involved in a motor accident on 17 August 2009. Par 5 of the statement of claim is in these terms: "On 17 August 2009 the Plaintiff was riding his motorcycle registration number RWS.00 along Babbage Road, Roseville, when the Defendant's vehicle merged into the Plaintiff's lane causing him to swerve and brake heavily to avoid a collision, resulting in the Plaintiff's losing control of his motorcycle and being catapulted over the top of it." In the Statement of Particulars in Personal Injury Proceedings filed with the statement of claim on 26 July 2012 the plaintiff, amongst other things, alleged these injuries: "Multiple rib fractures, ruptured spleen, left basal pleural effusion, trauma to the left inner ear, closed head injury, brief loss of consciousness and psychological/psychiatric injury and unspecified injuries to the neck, both arms, left leg, thoracic spine and abdomen." 3On 10 November 2009 Mr John Chidiac of Sanford Legal wrote to the CTP insurer of the Defendant. The first sentence of the letter is this: "We have received instructions to act for Leigh Kalazich in respect of a motor vehicle accident on 17/08/2009." The letter goes on to point out that Mr Chidiac's searches indicated that the insurer in question was the insurer of the defendant's motor vehicle registered number YQW528 and then served upon the insurer a motor accident/personal injury claim form, a completed medical certificate and a police report dated 27 October 2009. The solicitor then requested the insurer to "let us know" if the insurer accepted provisional liability in accordance with s 50 of MACA and looking forward to the insurer's determination of liability within three months in accordance with s 81(1) of MACA. 4On 25 June 2010 the insurer sent to Mr Chidiac an "s 81 Notice". The substance of the letter commences with citing the insurer's reference, the reference of Mr Chidiac, the date of the accident and the name of Mr Chidiac's client, the plaintiff. The substance of the notice is this: "We have looked at the available information relating to the accident and admit liability. We make this admission on the basis that injuries and damages are still to be assessed. However, we consider that Mr Kalazich has contributed to the accident/injuries by his speed, and in taking incorrect course of evasive action. We consider the amount of their contribution to be thirty percent." On 5 August 2010, about six weeks later, the Claims Assessment and Resolution Service ("CARS") issued a certificate under s 92(1)(a) of MACA. That certificate exempted the plaintiff's claim from assessment by CARS. 5On 23 February 2011 the insurer wrote to Mr Chidiac a letter which has been referred to as the "s 110 notice". The letter is addressed to Mr Chidiac at his business address and again commences with the insurer's reference, Mr Chidiac's reference, the name of the client and then the date of the accident. The substance of the letter is this: "More than eighteen months have passed since the date of the above motor vehicle accident. Your client has been in possession of a certificate of assessment or exemption from CARS for more than six months. We require your client to commence court proceedings within three months of the date of this letter, in line with s 110 of the Motor Accidents Compensation Act 1999 (as amended). If proceedings are not commenced within this period, the claim will be deemed withdrawn and our file will be closed." 6On 2 March 2011 Mr Chidiac sent to the insurer a letter referring to the letter of 23 February 2011. The substance of this letter is: "We note that you have purportedly [given] a notice pursuant to s 110 of [MACA]. We dispute your assertions in your letter that bearing in mind that our client has until 17 August 2012, been three years from the date of the accident to commence proceedings in the District Court, Sydney. Accordingly we dispute your s 110 notice. If you maintain your position please advise our office immediately. If we do not hear from you within fourteen days from the date of this letter, we shall assume that you accept our reasons mentioned above." The past participle that I have placed, in the first sentence that I have quoted, in square brackets represents an omitted past participle in the letter. I can only assume that the writer intended to insert the word "given" or some similar past participle. The second sentence is almost incomprehensible. There are two assertions made in the letter of 23 February 2011. The first was that more than eighteen months had passed since the date of the motor vehicle accident. That assertion was correct. The next assertion made is that the plaintiff had been in possession of a certificate of exemption from CARS for more than six months. That is also a correct assertion. True it is that there is a prima facie limitation period of three years for litigation under MACA. The three years would expire on the third anniversary of the motor vehicle accident, on 17 August 2012. I suppose the second sentence of the letter makes more sense if one omits from it the first "that" appearing in it. Those were the only reasons given by Mr Chidiac for disputing the s 110 notice. That can be the only meaning to be accorded to the adverb "accordingly". Mr Chidiac did not assert that the s 110 notice was in itself defective or that he was unable to accept service of it or that it needed to be served upon the plaintiff personally. It is clear from the copy of the letter of 2 March 2011 that is in evidence that it was received by the insurer on 4 March 2011. 7On 4 March 2011 the insurer wrote back to Mr Chidiac at the address that had been used in the past and was shown on Mr Chidiac's letterhead. Again the insurer's letter commences with its reference, the reference of Mr Chidiac, which is correctly cited, the name of the client and the date of the accident. It then refers to Mr Chidiac's letter of 2 March 2011 and continues thus: "In accordance with s 110 of [MACA], insurer may require claimant to commence court proceedings: (a) the claimant has been entitled to commence the proceedings for a period of at least six months - which applies in this case in this matter. As you have been in possession of the CARS certificate of exemption dated 5 August 2010 from Assessor Michelle Boyle. and (b) at least eighteen months have elapsed since date of motor vehicle accident to which the claim relates - which applies in this matter. Date of accident is 17 August 2009, our s 110 letter issued on 23 February 2011. If you have any further query please do not hesitate to contact me." That letter has a dearth of indefinite and definite articles but that may be the result of the writer of the letter not having English as his or hers first language, however the meaning is quite clear. 8According to the evidence before me, the defendant's insurer heard nothing further from the plaintiff's solicitor and the insurer closed its file in or about July 2011. The next thing that occurred was that the insurer received from the plaintiff's solicitor a letter dated 14 October 2011 in which Mr Chidiac asked whether the insurer would be agreeable to participate in an informal settlement conference as required by s 89A of MACA. On or about 10 November 2011, the insurer retrieved its file from its archives and advised Mr Chidiac that its file had been closed. 9The next thing which appears to have occurred was a further telephone conversation on 21 June 2012, which was followed by a letter from Mr Chidiac to the insurer of 22 June 2012. The letter is this: "We refer to our telephone conversation with Ms Fui Kian Lo and Mr Chidiac on 21 June 2012. We also refer to your s 110 notice (which we dispute) dated 23 February 2011 and our reply dated 2 March 2011. We note that we have not received a written response from you in relation to our letter dated 2 March 2011. It was not until our telephone conversation, referred to above, in which we asked you if you were interested in participating in an informal settlement conference that you brought it to our attention that you had purportedly responded to our letter dated 2 March 2011 under cover of your letter dated 4 March 2011. We have never received this letter until it was recently faxed to us after our telephone conversation on 21 June 2012. In any event, we dispute your purported s 110 notice dated 23 February 2011 and your purported letter dated 4 March 2011, as this was never received by us. We also confirm your instructions that you have not served the s 110 notice on our client. We refer you to the decision in Davis v Moss (unreported) District Court of NSW in which it was held that in order for an insurance company to rely upon a s 110 notice as a bar to commencing proceedings it was held that the insurer must be able to establish that the Claimant failed to commence proceedings within three months of personally receiving notice. Given you have confirmed to Mr Chidiac on 21 June 2012 that you have not personally served the Claimant with a s 110 notice and we did not receive your purported letter of 4 March 2011, we maintain the view that you do not have a valid s 110 notice. If you are still happy to participate in an informal settlement conference please let us know prior to us filing the statement of claim and Statement of Particulars within 14 days from the date of this letter, otherwise, we shall file the pleadings without further notice to you. If in the event you oppose the statement of claim or in the alternate file a Defence or Motion seeking to set aside or dismiss the statement of claim on the grounds of the Claimant purportedly failing to comply with s 110, then we put you on notice that we will seek indemnity costs against you in light of the above." 10The statement of claim was, as I said earlier, filed on 26 July 2012. The defendant filed a document entitled "Holding Appearance" on 17 August 2012 and on 17 September 2012 filed the present notice of motion. The first thing that must be pointed out is that the only evidence before me is an affidavit of Wendy Anne MacDonnell, sworn on 13 December 2012. Ms MacDonnell is a solicitor and a partner in the firm of Holman Webb, who act for the defendant. The plaintiff called no evidence and in particular did not serve any evidence from Mr Chidiac. 11In the letter of 22 June 2012, Mr Chidiac puts forward as the reason for the invalidity of the s 110 notice the fact that it had not been personally served upon the defendant. He relied on a decision of Charteris DCJ given on 1 September 2011. Clearly, at the time that he disputed the validity of the letter of 23 February 2011 he could not have been relying upon that decision, which had not been delivered. Furthermore, Mr Chidiac has not gone into evidence to aver on oath what he stated in the letter of 22 June 2010 that he never received the letter of 4 March 2011. 12For the For resolution of the current dispute, it is necessary to consider a number of provisions of MACA. Section 5 contains the objects of the Act. Section 5(1)(b) gives as one of the objects of the Act the encouragement of the early resolution of compensation claims. Subsection (2) sets out some principles which are to be acknowledged in the application and the administration of the Act. The first of those principles is this: "that participants in the scheme under this Act have shared and integrated role with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable." Section 6 of the Act is headed "Interpretation and application of Act by reference to objects". Subsection (1) is in the following terms: "In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects." Section 68 is headed "Claims Handling Guidelines of Authority". It is in the following terms: "(1) The Authority may issue to licensed insurers guidelines with respect to the manner in which insurers and those acting on their behalf are to deal with claims ("MAA Claims Handling Guidelines"). (2) The Authority may amend, revoke or replace MAA Claims Handling Guidelines. (3) The Authority is to consult the following about any proposed MAA Claims Handling Guidelines: (a) Insurance Council of Australia Limited, (b) Council of the Bar Association, (c) Council of the Law Society. (4) MAA Claims Handling Guidelines may adopt the provisions of other publications, whether with or without modification or addition and whether enforced at a particular time or from time to time. (5) It is a condition of an insurer's licence under Part 7.1 that the insurer comply with MAA Claims Handling Guidelines." Section 110 is headed "Insurer may require claimant to commence court proceedings". It is in the following terms: "(1) The insurer of a person against whom a claim is made may give the claimant notice requiring the claimant to commence court proceedings in respect of the claim if: (a) the claimant has been entitled to commence the proceedings for a period of at least 6 months, and (b) at least 18 months have elapsed since the date of the motor accident to which the claim relates. (2) The claimant must comply with the notice within 3 months after its receipt. (3) If the claimant does not comply with the notice as required by this section, the claimant is taken to have withdrawn the claim. (4) A claimant whose claim is taken to have been withdrawn by operation of this section may apply to a court of competent jurisdiction for reinstatement of the claim. (5) The court may reinstate the claim if the court is satisfied that the claimant has a full and satisfactory explanation for the failure to comply with the notice." I interpolate at this stage that the plaintiff has made no application under s 110(4). 13Section 222 is headed "Service of documents generally". It is in the following terms: "(1) If by or under this Act a notice or other document is required to be, or may be, given to or served on a person other than the Authority, that notice or other document may be given to or served on: (a) an individual: (i) by delivering it to the individual personally, or (ii) by leaving it at the individual's place of residence last known to the person who issued the notice or other document with a person who apparently resides there, being a person who has or apparently has attained the age of 16 years, or (iii) by sending it by prepaid post addressed to the individual at that place of residence, or (b) a corporation: (i) by delivering it to a person who is or apparently is concerned in the management of the corporation, or (ii) by leaving it at the registered office in the State of the corporation with a person apparently employed at that office, being a person who has or apparently has obtained the age of 16 years, or (iii) by sending it by prepaid post addressed to the corporation at that registered office. (2) A notice or other document that is delivered, left or sent by post in accordance with subsection (1) is taken to have been given or served on its being so delivered or left or, if it is sent by post, is, in the absence of evidence to the contrary, prima facie taken to have been given or served when it would have been delivered in the ordinary course of post." It is to be noted that s 222 is facultative and not mandatory: it merely provides for a mode of service that may be adopted as the case may require. 14The first question to be determined is whether the s 110 notice must be served prior to the commencement of the proceedings upon the claimant personally. The plaintiff relies upon the decision of Charteris DCJ to which I have referred. His Honour cites no authority for the proposition for the interpretation which he adopted, merely relying upon his reading of the section itself. The case of Davis v Moss was a claim for nervous shock. His Honour said this about the plaintiff: "The plaintiff is an indigenous woman. Evidence annexed to the affidavit of her solicitor confirms that the plaintiff has had a long history of depression and psychological or psychiatric disturbance. Regrettably she has been the victim of significant domestic violence delivered to her by her former partner, who is also the father of her six children. There is a psychological report and a psychiatric report supporting the proposition that the plaintiff's pre-existing depression has been exacerbated by her witnessing the death of her friend on 3 March 2009; also there is a suggestion that she may have developed post-traumatic stress disorder. The plaintiff's solicitor testified that the plaintiff had been leading, for a long period of time I conclude, what is described as a 'shambolic' lifestyle in which she moves from various residences, including premises in Lismore and Nambucca Heads as well as the Coraki Aboriginal Mission. The plaintiff, I find, has significant pre-existing psychological and psychiatric conditions leading up to 3 March 2009 and since that time there has been considerable difficulty in her legal representatives making contact with her." In that case the notice under s 110 had been served upon the plaintiff's solicitors in Lismore. 15After citing s 222, his Honour said this: "There is no provision for sending a notice addressed to the solicitor for a claimant. In my view Parliament's intention is clear: service of the notice must be in accordance with s 222. It follows that I am comfortably satisfied that the letter of 4 March 2011 is not a notice in accordance with s 110. As I have observed, it is not a notice to the plaintiff; it was not served upon the plaintiff in accordance with the Act. Amongst other things, it misquotes the effect of s 110 suggesting that the period for compliance by the plaintiff or claimant is three months after the date of the letter. I am comfortably satisfied that the notice under s 110 has not been given to the plaintiff." His Honour then goes on to consider an alternative if his Honour was wrong. Normally I would have used the subjunctive in that last clause but that merely reflects the fact that his Honour commenced his alternative finding with the words "If I am wrong", rather than with the subjunctive "If I be wrong". His Honour held that there was sufficient evidence, in his view, in the affidavit and annexures of the plaintiff's solicitor to satisfy him that there was a full and satisfactory explanation by the claimant for non-compliance with a s 110 notice, if it had been validly issued. 16His Honour appears to have accepted that s 222 was the only way that service could be effected under MACA. In other words he read s 222 not as being facultative but as being mandatory or directory. I do not read the section in that fashion. The question is, does the Act permit the service of a notice upon a claimant's solicitor where the claimant is legally represented? 17There is before me a copy of the MAA Claims Handling Guidelines. I have been told from the Bar table that each section of the Guidelines is called a "Chapter" although I would be more likely, left to my own devices, to refer to it as a "clause". Chapter 8 is headed, "Contacting Legally Represented Claimants". It is in the following terms: "8.1 The insurer will insure all requests for information or advice are sent directly to the Claimant's legal representative. In Guidelines 8.2, 8.3 and 8.4 the definition of Claimant means the Claimant only and not the Claimant's legal representative. If a Claimant is legally represented the insurer: "8.2 may send generic information about making and resolving claims directly to a Claimant, provided that a copy is also sent to the Claimant's legal representative. 8.3 may contact the Claimant directly: if requested to do so by the Claimant, or if there is no substantive reply by the Claimant's legal representative to the insurer's offer of settlement within ten days and an attempt has been made by the insurer to confirm the receipt of the settlement offer, or if there is no substantive reply by the Claimant's legal representative to the insurer's correspondence (excluding offer/s of settlement) within twenty days, and an attempt has been made by the insurer to confirm the receipt of the correspondence, or to advise the Claimant, in addition to the Claimant's legal representative, about the details of a medical appointment arranged by the insurer, or in response to a complaint notified to the insurer by the Claimant. 8.4 may contact the Claimant directly about their [sic] rehabilitation, however the insurer will prior to the first communication advise the Claimant's legal representative of intended communications." 18The MAA Claims Handling Guidelines have, to an extent, the force of subordinate legislation. If they are inconsistent with the Act they must, of course, be ignored as the Act must prevail. However, clearly the guidelines accept that a claimant for compensation under MACA may be legally represented and the correspondence ought go to the solicitor and there are only exceptions to when that may occur if the claimant be legally represented, and the circumstances in which the insurer may deal directly with the claimant arise only where, in essence, the solicitor fails to act when he or she ought to have acted or is necessarily being told what is going on. 19It has been well-established law for centuries that qui facit per alium, facit per se - a person who does something through another does it himself. This is the foundation of the law of agency. It is also well known that where a solicitor acts for a client, one ought to communicate with a client only through the solicitor and if a person engages a solicitor for a particular purpose, those dealings with the person about that subject matter ought be communicated with the solicitor rather than directly with the client. 20In the first piece of correspondence, addressed to the insurer of the defendant, Mr Chidiac made it quite clear that he had instructions to act for the plaintiff "in respect of the motor vehicle accident on 17/08/2009". With great respect to Charteris DCJ I cannot read the Act as requiring that any formal notice, such as a notice under s 110, must be served upon the claimant personally where the claimant is legally represented and where all communications are being passed through the solicitor by both the insurer and the claimant. The Act does not require personal service upon a claimant of, for example, a notice under s 110. If one were to construe the Act in the fashion construed by Charteris DCJ, any time that a claimant is required to do something he would be required to do it personally. That is clearly not the intention of the Act and clearly the MAA Claims Handling Guidelines indicate that the insurer should contact the claimant only through his or her solicitor, subject to the exceptions provided in Chapter 8 of the Guidelines. 21In his written submissions, Mr David Stanton, for the plaintiff, cited to me certain dicta in VEAN (2002) v The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA FC311, a decision of Gray, Whitlam and Mansfield JJ. In particular, Mr Stanton cited to me [40] and [45] and [46] of that decision. However, the decision in question must be seen as relying on the special facts of it which are well set out in the headnote: "The appellant, a national of Sri Lanka, applied for protection visas for himself and his family. A delegate of the respondent refused to grant the application and the appellant applied to the Refugee Review Tribunal (the Tribunal) for review of the decision. The Tribunal determined it did not have jurisdiction because the application for review had not been given to it within 28 days of the notification of the decision of the delegate as required by s 412(1)(b) of the Migration Act 1958 (Cth) (the Act). Regulation 2.16(3) of the Migration Regulations 1992 (Cth) provided that notification of a decision could be by one of the methods specified in s 494B of the Act. Section 494B(4) specified that one method consisted of sending notification by prepaid post to the last address for service or the last residential or business address provided by the recipient for the purposes of receiving documents. Further, s 494D provided that an applicant for a visa could authorise another person to receive documents on their [sic] behalf. The respondent sent notification of the delegate's decision enclosing the reasons to the appellant, care of his sister, at his sister's address. The appellant's sister's address was not the last address for service, nor the last residential or business address, which had been provided to the Minister for the purposes of receiving documents. The appellant and his sister had signed an authorisation for the appellant's sister to receive communication, documents or notifications on the appellant's behalf. The appellant's sister had provided an email address for the purposes of receiving communication by electronic means. The Tribunal concluded that the appellant was notified of the decision by the notice which was sent to the appellant's authorised recipient, his sister, in accordance with s 494B(4), and therefore the Tribunal did not have jurisdiction to review the decision of the delegate. The appellant applied to the Federal Court for review of the Tribunal's decision. At first instance the primary judge held that the words in s 494D(1) 'give to the authorised recipient, instead of the person' should not be construed so narrowly that a letter sent to the appellant care of the authorised recipient at her address did not constitute 'giving' to the authorised recipient. The primary judge also concluded that the Act permitted the respondent to use any of the prescribed methods for notification and the respondent was not obliged to notify the authorised recipient by email." The appellant appealed from the primary judge in the Federal Court to the Full Court. The Full Court held that for a letter to be "given" to an authorised recipient as required by s 494D(1) it must be addressed to the person in question. Here the authorised recipient was the appellant's sister, but the notice had not been addressed to her. Accordingly the Tribunal erred in law in wrongfully refusing to exercise its jurisdiction to hear the appellant's application for review of the delegate of the Minister's decision. 22This authority, however, does not extend to the question of whether a notice addressed to a claimant's solicitor is adequate service and clearly it would appear to me from reading the decision to which I am now referring that there was no provision in the Migration Act and its regulations for service to be effected upon a solicitor and it appears that the only means of service were prescribed. Accordingly, in my view, the fact that the notice served on Mr Chidiac rather that on the plaintiff does not mean that the service of the notice was invalid. 23There is no prescribed form of notice. The question is, what need a notice to a claimant or her solicitor say? Whether the notice be served on the claimant personally or upon his or her solicitor the notice should say the same thing. A notice cannot be valid for service upon one set of claimant's but invalid when served upon another set of claimants. The reasons I make that statement will become clearer later. 24The first decision to which I should make reference is a decision in Schinnerl v The Commissioner of Police [1992] NSWCA 224, a decision of Kirby P, Priestley and Handley JJA. The principal judgment was given by Priestley JA, with whom Kirby P and Handley JA concurred. That decision concerned the giving of a notice under the Police Regulation (Superannuation) Act 1906. The notice was that required by s 10B(3) of that Act, which, at the time that the notice was given, was required to be given within 90 days. The Act at that time did not specify how the notice was to be given or prescribe any particular form. The notice upon which the Commissioner relied was an oral notice. It was argued in the Court of Appeal that the implication arising from the statute was that the notification ought be in writing. Although his Honour Priestley JA accepted that there was "something to be said for this submission", he did not think it was necessary to decide whether that be right or wrong. His Honour went on to say this: "It seems to me to be sufficient to repeat that to notify as required involves a formal and serious act of notifying and the act of notifying should at the least convey enough information to the person notified to be able to comply with the requirements of the Compensation Court for filing an application to that Court under s21. The evidence in this case does not, in my opinion, show that notification, purportedly given, was sufficient to fulfil those not over taxing criteria. I should add that it seems to me to be debatable whether the details communicated by Mr Galvin in fact informed Mr Schinnerl of the full substance of the Commissioner's decision. It seems to me that, approaching a matter of notification of this kind where the act of notification is of importance in a material sense, a requirement to communicate the decision should be regarded as one requiring communication of the whole decision and the whole decision was that which has earlier been set out. I do not think that Mr Galvin communicated the whole of that by the words he used. Without deciding the point on the basis last mentioned, I am content to rest my own view on what I said a little earlier, namely that failure to notify enough detail to enable the filing of a claim in the Compensation Court, complying with that Court's rules, and failure to notify in a manner both serious and formal, so that the person notified would realise an act of legal significance had taken place requires the conclusion that, as a matter of law, what was done on 4 September was not compliance with the Commissioner's duty to notify under s10B(3)." The principles to be derived from this decision are that the notice must be sufficient or, to use a synonym, adequate and the notice must both be serious and formal. 25In the plaintiff's written submissions Mr Stanton was good enough to refer me to the decision of Chan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292, a decision of Gray J. In that case his Honour was required to consider the validity of a notice issued under the Migration Act requiring the recipient to apply for a review of a decision made by the Minister regarding an application for a visa. The notice failed to specify the correct period of time that such an application could be made. The effect of doing that was to create uncertainty in the mind of the applicant regarding his right to seek a review of the Minister's decision, and if he lost the right to that review that might result in his being deported. His Honour held that the effect of the error in the notice rendered the notice invalid. His Honour said at [45]: "The evident purpose of the provisions in s 66(2) of the Migration Act is to ensure that the legislative scheme in relation to rights of review of decisions operates fairly. The intention is that not only should an unsuccessful applicant for a visa be told that his or her application has been unsuccessful, but he or she should be given enough information to pursue the right of review if disposed to do so. That information includes the criterion or criteria that the applicant failed to satisfy, any legislative provision that prevented the grant of the visa, in most cases the reasons why the criterion was not satisfied or the provision prevented the grant of a visa, and the steps required to make an application to review the decision. Without all of this information, an unsuccessful applicant would be disadvantaged in the operation of the scheme, in which the time limits are strict and in which there exists no power, discretionary or otherwise, to enlarge them. A bridging visa is to be kept alive, to prevent the person from becoming an lawful non-citizen, until it can be seen whether an application for review is made and, if such an application is made, until it has been determined." Again, what his Honour is referring to is the sufficiency of the notice, to use the word used by Priestley JA in Schinnerl v COP. In Chan the notice contained incorrect information. Incorrect information could not be either sufficient or adequate. 26In the current case it should be clear from what I have already set out that the purported notice under s 110 required the plaintiff to commence court proceedings "within three months of the date of this letter". If one takes that literally, that would mean the proceedings must be commenced on or before 23 May 2011. However, s 110 does not state that the claimant must comply with the notice within three months of its being dated or of its being sent. Section 110(2) requires a complainant to comply with a notice "within three months after its receipt." There is a large difference. A claimant might be overseas on a holiday. He might not return from his holiday for four weeks, six weeks or even three months. A claimant might be interstate and his whereabouts currently unknown to the members of his family. A claimant might be lying critically ill in hospital, perhaps not by reason of any injury sustained in a motor vehicle accident but, for example, because of a supervening event, such as a stroke or heart attack. The Act requires a claimant to commence proceedings within three months of receipt of the notice not within three months of the date of the notice. Indeed a notice might be dated one day, but it might not be sent for a week. If this Court were to issue notices one would find that the notices go out about a week after they are actually dated, as bureaucracies can be inefficient. Just how efficient insurance companies are is a matter, of course, for evidence. 27When I questioned Ms Allen, who appeared for the defendant, about this subject matter she pointed out that Mr Chidiac was a solicitor who ought know the law and that, in any event, it made no difference because, whilst the time specified in the notice was in fact shorter than three months by perhaps a week, giving the claimant a further week would be in some way of a boon to him or her. However, the fact remains that a notice under s 110 would not be given to a lawyer if the claimant were not legally represented. A notice such as the one given in the current case, and indeed the one given in Davis v Moss, might be completely misleading for any layman especially if the layman got the letter late. If the layman got the letter and did not have sufficient time to see a solicitor prior to the expiry of the three months from the date of the letter, the claimant might desist with the claim believing that the withdrawal of his claim was a fait accompli. 28One cannot have a notice which for one class of addressees, legally unrepresented claimants, is invalid but valid for another set of claimants, those who are legally represented. What, then, if for example an unrepresented claimant is in fact a lawyer but a corporate lawyer or a tax lawyer who knows absolutely nothing about personal injury litigation? In which class should one put him? The idea that there can be a valid notice for one class of persons but the same notice being invalid for another class of claimants is, in my view, completely unacceptable and contrary to proper principles of statutory interpretation. In my view, the notice here given was defective in that it gave the wrong information as to when the plaintiff as claimant was required to commence the proceedings. I notice that Charteris DCJ made the same point about the notice with which he was dealing in Davis v Moss. 29Accordingly, I must hold that the notice allegedly under s 110 given by the defendant to the plaintiff on 23 February 2011 was of no effect because it contained erroneous and misleading information. 30I wish to just add a few remarks. The first remarks concerns the argument concerning upon whom the notice can be served. Let me hazard the observation that if there had been personal service upon the plaintiff in Davis v Moss and that the disturbed, shambolic, indigenous woman lost the notice, or forgot about it, or mislaid it and did not give it to her solicitor, no doubt the solicitor would have been seeking to have the validity of the notice questioned because it had been sent to the plaintiff and ought to have been sent to the plaintiff's solicitor or at least notice of it given to the plaintiff's solicitor. 31The other thing I must point out is that the plaintiff has been successful in his case, not because of anything that was done by his solicitor who never raised any question as to why the notice was invalid at any time prior to the argument on this notice of motion last Friday. I must point out that the solicitor's conduct is not worthy of any approbation. 32At the commencement of these reasons I set out some extracts from the objects of the Act and the question as to the proper interpretation of the Act. One of the principles underlying legislation such as MACA is to reduce costs because increased costs mean increased premium, and increased premium means a greater cost to the motorist, and then pressure on the legislature to rein in the costs of an insurance scheme such as MACA. One way of reducing costs is for the insurers and those representing claimants to cooperate and it is specifically enacted in s 5(1)(b) that one of the objects of the Act is to encourage the early resolution of compensation claims. It appears to me that the principle behind s 110 is that where the plaintiff has jumped through all the hoops that he must jump through before he can commence litigation, then the litigation ought be commenced as soon as is practicable in order to bring it to a speedy resolution rather than to delay as long as possible, e.g. up until the day before the proceedings become statute-barred. Here the proceedings were to become statute barred, that is, the three year normal limitation period would have expired on 17 August 2012 and the statement of claim was filed on 26 July 2012, three to four weeks prior to the expiration of the three-year limitation period. Such leisurely conduct is contrary to principles underlying legislation such as MACA. 33For those reasons the notice of motion filed on 17 September 2012 is dismissed. 34I will hear the solicitors on the question of costs but, as currently advised, I think each party should pay his own costs. Do you want to say anything about that? MOXHAM: I'm happy with that. NEHME: I've been instructed to seek that our costs of the motion - sorry, we seek our costs of the motion. I can seek further instructions. HIS HONOUR: If you listened carefully to what I just said, Mr Chidiac has just had a rap over the knuckles, a big one. Or do you want to come back tomorrow? Where is Mr Stanton? NEHME: I can make a quick phone call if I can, your Honour. HIS HONOUR: Yes, I'll stay here. NEHME: That's fine, your Honour. HIS HONOUR: In this case, although the plaintiff has been successful I proposed an unusual costs order because of my disapprobation of the conduct of the plaintiff's solicitor. I announced to the solicitors for the parties that I propose that each party should pay his own costs of this notice of motion and Ms Nehme, who appears for the plaintiff today, sought instructions and has consented to the costs order being in those terms. I accordingly direct that each party pay his own costs of the notice of motion.