Malbasa v Insurance Australia trading as NRMA Insurance [2013] NSWCA 73

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Malbasa v Insurance Australia trading as NRMA Insurance [2013] NSWCA 73 Hearing dates: 8 April 2013 Decision date: 08 April 2013 Before: Macfarlan JA (at [1] and [11]); Barrett JA (at [2]) Decision: The application for leave to appeal is dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - application for leave to appeal - no matter of principle Legislation Cited: Motor Accidents Compensation Act 1999 Category: Interlocutory applications Parties: Marko Malbasa - Applicant Insurance Australia Ltd t/as NRMA Insurance - Respondent Representation: R Royle - Applicant W M Fitzsimmons - Respondent Novakovic Lawyers - Applicant Curwoods Lawyers - Respondent File Number(s): 2012/387038 Decision under appeal Date of Decision: 2012-11-19 00:00:00 Before: Neilson DCJ File Number(s): 2012/186818

Judgment 1MACFARLAN JA: I will ask Barrett JA to deliver the first judgment. 2BARRETT JA: This application for leave to appeal concerns a decision of a judge of the District Court on two interlocutory applications in proceedings brought under the Motor Accidents Compensation Act 1999. The judge dismissed the plaintiff's application for a retrospective extension of time to bring the proceedings and granted an application by the defendant for an order dismissing them because commenced out of time. 3The central issue that arose under s 109 of the Motor Accidents Compensation Act was whether the total damages likely to be awarded if the plaintiff succeeded in his claim were at least $91,500. The judge answered that question in the negative. In doing so he undertook a detailed assessment of the evidence, particularly the plaintiff's evidence about the effect upon him of injuries he said he had suffered in the motor accident and his inability to work and, of course, medical evidence. 4The judge disbelieved the plaintiff on crucial aspects. He formed a very adverse view of the plaintiff's credibility, describing it as "non-existent". The plaintiff had been forced to concede the falsity of significant parts of his evidence when confronted with details of substantial quantities of remunerated work he had done in his chosen occupation during 2009, 2010 and 2011 when he claimed he had been unable to work since March 2009. He also accepted that he had provided false medical histories to certain doctors. There was reference in the documents before the judge to the plaintiff having been filmed while engaging in activities of a kind that on his own account were precluded by his incapacity. Furthermore, it was clear that the plaintiff had not sought any medical assistance for the injuries allegedly sustained in the accident until six months later. 5As to medical evidence, there was a finding that certain of the plaintiff's conditions both physical and psychological had sources in events predating the accident. The causal link between the accident and the physical and psychological conditions were seen by the judge to be not established. 6If leave to appeal is granted, the grounds of appeal will be that the judge erred in his credit findings and, rather than basing his assessment of the amount of the likely damages on those findings, should have proceeded by taking account of the plaintiff's best case and assuming that his evidence would be accepted. It is also said that the judge failed to have regard to certain supporting evidence of the medical witnesses consistent with the existence of the relevant medical conditions. 7There is no real prospect that such a case would succeed on appeal. The question posed by s 109(3)(b) was whether the total damages of all kinds likely to be awarded to the plaintiff if the claim succeeded were of the required minimum. The Court was precluded from granting the leave the plaintiff sought unless it made a positive finding on that matter and it was for the plaintiff to prove the amount of the likely damages. It is obvious that the judge was not required to address the s 109(3)(b) question on the basis of the plaintiff's best case and assuming that his evidence would be accepted. The matters of credibility and medical opinion to which the judge had regard properly played a central role in a decision about the quantum of damages likely to be awarded if liability were established. His Honour's opinion was that there could be no finding of relevant lack of earning capacity from January 2008 except by placing trust in the plaintiff's evidence and that evidence did not merit any trust. That opinion was directly relevant to the s 109(3)(b) question. 8As to the submission that the judge failed to have regard to supporting medical evidence, it is clear from the transcript of 19 November 2012 that the judge was alive to the issue. In addition, the matter was explicitly dealt with in the judgment when the judge said: "I have carefully searched through the medical evidence to see if there are any acceptable findings of organic disability. There are none." 9It should be added that the judge's treatment of the credibility question was detailed and thorough, as was his explanation of the basis on which he reached his opinion adverse to the plaintiff. 10In summary, the foreshadowed appeal against the judge's decision on the two motions would enjoy no real prospect of success. In addition, it raises no question of principle or public importance. I am therefore of the opinion that the application for leave to appeal should be dismissed with costs. 11MACFARLAN JA: I agree. The application for leave to appeal is dismissed with costs.