District Court New South Wales Medium Neutral Citation: Angus v Jones [2013] NSWDC 46 Hearing dates: 19/04/2013 Decision date: 24 April 2013 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Proceedings dismissed with costs Catchwords: Compliance with motor accident legislation in an action brought pursuant to a right of subrogation. Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Safety, Rehabilitation and Compensation Act 1988 (Cth) Workers Compensation Act 1987 (NSW) Accident Compensation Act 1985 (Vic) Civil Law (Wrongs) Act 2002 (ACT) Cases Cited: Crispino v Burns [2007] ACTCA 7 Emad Trolley Pty Ltd v Shigar (2003) 57 NSWLR 636 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Honey v Gosling (unreported) 28 September 2006 NSWDC Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207 Category: Interlocutory applications Parties: Kenneth Angus (Plaintiff) Jade Michelle Jones (Defendant) Representation: T McKenzie (Plaintiff) J Guihot (Defendant) Graham Jones Lawyers (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2012/00325297 Publication restriction: No Judgment 1By a Notice of Motion filed on 18 December 2012 the defendant seeks the dismissal of the proceedings as a result of breaches of the Motor Accidents Compensation Act 1999 (the "MACA"), particularly relying on Sections 72, 74 and 108. The latter is the most relevant. 2Section 108 states: "108 Claims assessment or exemption pre-condition for commencement of court proceedings (1) A claimant is not entitled to commence court proceedings against another person in respect of a claim unless: (a) the Principal Claims Assessor has issued a certificate in respect of the claim under section 92 (Claims exempt from assessment), or (b) a claims assessor has issued a certificate in respect of the claim under section 94 (Assessment of claims). (2) The provisions of this section are in addition to those of section 109. Accordingly, both sections are capable of applying to a claim." 3There is no dispute here that the requirements of Section 108(1)(a) or (b) have not been met. In respect of Sections 72 and 74 there is also no dispute that the necessary notices and forms are absent. 4The Statement of Claim was filed on 19 October 2012. Under the heading "Relief Claimed", the following paragraph appears: "1. Pursuant to Section 51 of the Safety, Rehabilitation and Compensation Act 1988 this action is brought by the Australian Postal Corporation in the name of Kenneth Angus who is an employee of the Australian Postal Corporation." 5The Statement of Claim then seeks damages. 6In the particulars of the claim the facts are set out of a motor vehicle accident on 21 December 2009 in which Mr Angus is allegedly injured as a result of the negligent driving of the defendant. The accident occurred in New South Wales. For present purposes the allegations in the Statement of Claim are taken as being accepted. 7The defendant says that the plaintiff's claim is one for damages under the MACA and accordingly the various procedural provisions of this Act must be complied with. Thus under Section 108 the conditions for the commencement of court proceedings have not been met and the claim must be dismissed. 8As stated, the plaintiff accepts that the conditions have not been met but says, rather, that in this case there is no requirement that they be met. 9Mr McKenzie appeared on behalf of the plaintiff. He said that Mr Angus should not be treated as the plaintiff. The true plaintiff is the Australian Postal Corporation ("APC"), which is bringing the action in the name of Mr Angus under Section 50(1) of the Safety, Rehabilitation and Compensation Act 1988 (the "Commonwealth Act"). 10Section 50(1) is as follows: "50 Common law claims against third parties (1) Where: (a) an amount of compensation under this Act: (i) is paid to an employee in respect of an injury to the employee or in respect of the loss of, or damage to, property used by the employee; or (ii) is paid for the benefit of a dependant of a deceased employee in respect of an injury that resulted in the death of the employee; (b) the injury, loss, damage or death occurred in circumstances that appear to create a legal liability in a person to pay damages in respect of the injury, loss, damage or death; and (c) a claim against the person for the purpose of recovering such damages has not been made by the employee or by or for the benefit of the dependant, or, having been made, has not been prosecuted; Comcare may make a claim or a fresh claim against the person in the name of the employee or dependant for the recovery of damages in respect of the injury, loss, damage or death or may take over the conduct of the existing claim, as the case requires." 11Although Section 50(1) refers to Comcare it is common ground that no distinction is to be made between APC and Comcare. 12Mr McKenzie submitted that "..the action itself is a statutory right for the recovery of damages in respect of the injury for which it has paid compensation." (Written submissions, paragraph 17). He continued : "The cause of action is created by a statute for an indemnity and is not a claim in tort." (Paragraph 18). 13Mr McKenzie submitted that the Commonwealth Act provided a statutory right of subrogation enabling APC to bring the action against the defendant without the need to comply with the procedural provisions of the MACA. This was not to say, Mr McKenzie submitted, that ultimately damages would not be assessed under the MACA, but, he said, that was an argument that would take place at the substantive hearing. 14In addition, Mr McKenzie submitted that he need only show, in respect of the necessity to comply with the MACA's procedurals steps, that he had an arguable case. An action should not be struck out where there was a genuine argument, which should be appropriately dealt with at the hearing. 15The defendant said the proceedings were plainly a claim for damages under the MACA. If so, there must be compliance with the MACA. 16The defendant drew my attention to the following parts of Section 50: (a)The heading is "Common law claims against third parties". (b)The claim that may be brought by Comcare is "for the recovery of damages in respect of the injury, loss, damage or death" of the injured employee. 17Mr Guihot, for the defendant, submitted that this was simply a case of a plaintiff who had not followed the procedures of the MACA, in respect of which there was no dispute, and therefore the claim must be dismissed under Section 108. In this regard he relied on the decision of the New South Wales Court of Appeal in Emad Trolley Pty Ltd v Shigar (2003) 57 NSWLR 636. 18The defendant submitted that Section 50 of the Commonwealth Act does not provide for a statutory indemnity in the same manner as given to an employer by, for example, Section 151Z of the Workers Compensation Act 1987 (NSW) or Section 138 of the Accident Compensation Act 1985 (Vic). Accordingly the approach taken in Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207 was not applicable here. 19I think the starting point in resolution of the argument is the definition of a "claim" in the MACA. The definition is as follows: "claim means a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle." 20A "claimant" under the MACA "means a person who makes or is entitled to make a claim". 21The defendant drew support from the decision of the ACT Court of Appeal in Crispino v Burns [2007] ACTCA 7. In this matter the Court upheld the decision of Gray J who found that in an action brought under the Commonwealth Act the named plaintiff was the claimant for the purposes of the Civil Law (Wrongs) Act 2002 (ACT). The latter Act governs claims arising from motor vehicle accidents in the ACT. 22The decision in Crispino turned on two matters: (a)The definition of a 'claimant' in the Civil Law (Wrongs) Act is: "Claimant means a person by whom, or on whose behalf, a claim is made". Therefore the action brought by Comcare was an action on behalf of the injured person who, under the provisions of Section 50, would be entitled to receive any damages recovered in excess of the workers compensation payments that have been made. (b)The right of subrogation provided by Section 50 was a "lesser right in many respects than an indemnity". 23In paragraph 9 of the judgment the following was stated: "It seems to us that his Honour was correct in holding that, notwithstanding the statutory form of the right given to Comcare to commence an action in the respondent's name, which his Honour conveniently described as a form of statutory subrogation, the respondent remained a "claimant" for the purposes of the Civil Law (Wrongs) Act. In written submissions Mr Crowe SC, for the respondent, made the point that, on the alternative view, it would be necessary for Comcare to make a fresh notification pursuant to s 51 of the Civil Law (Wrongs) Act in circumstances where the respondent, as an injured employee, herself decided to make a claim but Comcare, exercising its statutory right under s 50 of the Safety, Rehabilitation and Compensation Act, decided to take over such a claim before it was filed, or indeed to take over the claim at any time. Little point would be served by holding that a person in the position of the respondent ceased to be a claimant the moment Comcare made a decision to intervene in the matter. To the extent that the legislative purpose of the notice requirement in s 51 is apparent, it is to put the motor vehicle insurer on notice that a claim is to be brought, and, it seems to us, that purpose must be said to be achieved when the injured person gives notice of intention to make a claim, even if the running of that injured person's claim is in the hands of Comcare, or indeed another private insurer pursuant to a form of contractual subrogation." 24I took up with Mr McKenzie the point made in the passage just quoted that if an action had been started by the employee, who was then unquestionably required to meet the threshold requirements of the MACA, these could be avoided by simply having Comcare take the matter over. Mr McKenzie responded that Section 50(1) of the Commonwealth Act should be distinguished from Section 50(2) because it contemplated a different scenario, namely the taking over of a claim compared to the making of a claim. In my view, this distinction cannot be made, in particular if one has regard to the balance of the section in which no contrast is evident between Comcare making or taking over a claim. 25The plaintiff drew support from Crispino to the effect that if Mr Angus was the claimant, APC, which was bringing the action, was not the claimant. 26The defendant also relied on the decision of Acting Judge McGrowdie in this court in Honey v Gosling (unreported) 28 September 2006. While his Honour certainly makes some useful comments, the point in Honey was different. The defendant sought to strike out a Statement of Claim that had been filed out of time. The issue was whether the injured person had provided a full and satisfactory explanation for the delay. The defendant submitted that the explanation also needed to be given by Comcare because, under Section 50 of the Commonwealth Act, it was the claimant, or at least also a claimant. His Honour found that there was not a full and satisfactory explanation in any event and therefore did not need to decide whether or not an explanation needed to be given by Comcare. His Honour observed that: "Nonetheless, it does not seem to me that at any time, Comcare has become the claimant. Rather, the view I would take, is that the only claimant is Ms Honey. I say that because clearly the action is not an indemnity claim such as that which exists in respect of Section 151Z(1) of the Workers Compensation Act 1987. It is a claim by the injured person which is pursued by Comcare pursuant to Section 50 of the Safety, Rehabilitation and Compensation Act." 27Thus on the defendant's side the argument is that the claim is one for damages noting that this is the way the Statement of Claim is pleaded and, more importantly, this is the nature of the right specifically given by Section 50 of the Commonwealth Act. 28On the plaintiff's side the point is that while Mr Angus may fit within the definition of a claimant under the MACA the action itself is only brought in his name and is in substance a claim by APC pursuant to the statutory right of subrogation provided by the Commonwealth Act. 29Put in point form the defendant says: (a)Section 50 does not give rise to a statutory indemnity. (b)An action derived from Section 50 is for the recovery of damages. (c)A claim under the MACA is a claim for damages. (d)A person bringing the claim is a claimant. (e)A claimant must comply with Sections 72, 74 and 108. (f)The failure to comply requires the dismissal of the proceedings. 30The plaintiff says: (a)Section 50 allows APC to bring the claim in the name of Mr Angus. (b)Mr Angus is the claimant, but he is not the plaintiff. (c)Section 50 refers to Comcare making a claim. (d)APC, acting under the statutory right of subrogation given by Section 50, is the plaintiff. (e)APC as plaintiff, but not being the claimant, is not obliged to comply with the relevant sections of the MACA. (f)APC is not making a claim under the MACA. It is pursuing the statutory right of action given to it by Section 50 of the Commonwealth Act. 31I initially found the plaintiff's position to be at least arguable so that if the principles enunciated in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 were applied then the defendant's Motion should be dismissed. 32On reflection however I have found the plaintiff's position is not arguable. This is because although Section 50 provides APC with a right of subrogation it is still " a claim or a fresh claim against the person in the name of the employee or dependant for the recovery of damages in respect of the injury, loss, damage or death..." of the injured employee (Section 50). 33This is a claim falling squarely within the definition of a "claim" in the MACA. The definition of "claimant" then allows for the subrogated action being brought by APC. 34I do not think, as was argued (but not decided) in Honey that my conclusion raises the question of whether APC is the claimant or also a claimant. Rather the simple point is that proceedings are a claim under the MACA and therefore the provisions of the MACA are applicable. 35Accordingly, under Section 108, the proceedings must be dismissed. 36I make the following orders: (a)The plaintiff's proceedings filed on 19 October 2012 are dismissed. (b)The plaintiff is to pay the defendant's costs of the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 April 2013