Annetts v Bone and ANOR [2014] NSWDC 285

District Court New South Wales

Medium Neutral Citation: Annetts v Bone and ANOR [2014] NSWDC 285 Hearing dates: 16 July and 26 September 2014 Decision date: 04 December 2014 Jurisdiction: Civil Before: Colefax SC DCJ Decision: Leave granted to Plaintiff to commence and continue proceedings more than 3 years after the date of the motor vehicle accident, following the provision of a full and satisfactory explanation for the delay. Catchwords: Motor vehicle accident - delays in submitting claim form and commencing proceedings – full and satisfactory explanation for delays Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 40 (2), 66, 73 (1) and (5), and 109 Cases Cited: Ellis v Reko Pty Limited [2010] NSWCA 319; Figliuzzi v Yonan [2005] NSWCA 290; cf Brisbane South Regional Health Authority v Taylor [1996] HCA 25. Category: Procedural and other rulings Parties: Ronald George Annetts (Plaintiff/ Respondent/ Applicant) Robert Leslie Bone (1st Defendant/Applicant/Respondent) F.L.Green Distribution Pty Limited (2nd Defendant/Applicant/Respondent) Representation: Counsel: Mr Morgan (Plaintiff) Mr Turnbull (Defendants) File Number(s): 2013/340018 and 2014/52662

Judgment 1. On 13 September 2002 the plaintiff, Ronald George Annetts, was injured in a motor vehicle collision which involved three motor vehicles. One of those motor vehicles was driven by the plaintiff (in the course of his employment). Another vehicle was owned by the second defendant and driven by the first defendant. The final vehicle had two occupants, both of whom were killed in that collision. 2. The plaintiff did not sustain any physical injury as a result of the collision but it would appear he sustained some degree of psychological or psychiatric injury in the nature of depression and post-traumatic stress disorder. 3. The plaintiff did not submit a claim form within the six months following the collision as required by the Motor Accidents Compensation Act 1999 (NSW) ("the Act"); nor did he file a Statement of Claim within three years of the collision as was also required by the Act. 4. Rather, a claim form was submitted on 1 February 2013 and a Statement of Claim filed in this court on 11 November 2013 (matter No. 13/340018). 5. In these circumstances the court presently has before it two applications. 6. First, a Notice of Motion filed by the defendants on 8 January 2014 in the proceedings initiated by the Statement of Claim. By that Notice of Motion the defendants, amongst other things, seek an order dismissing the proceedings pursuant to section 73(5) of the Act (i.e. because of the delay in the making of the claim). 7. Secondly, a Summons filed by the plaintiff on 19 January 2014 (being proceedings No. 14/52662). At the time the Summons was filed, the plaintiff only sought an order pursuant to section 109 of the Act (i.e. an application for leave to commence proceedings more than three years after the date of the relevant accident). 8. Both the Notice of Motion and the Summons were listed for hearing on 16 July 2014. 9. On that occasion I granted leave to the plaintiff to amend the Summons to call in aide both sections 73 and 109 of the Act (the former section enables a plaintiff to make a late claim if he can provide a full and satisfactory explanation for that lateness). I also ordered that the two sets of proceedings be consolidated and that the Amended Summons and the Notice of Motion be heard together. 10. It is logical that the issues raised in the Amended Summons be determined first. The resolution of the issues raised by that initiating process will, in effect, also determine those raised in the Notice of Motion – except perhaps with respect to costs. 11. Accordingly, and within these parameters, I commenced the hearing of these two applications on 16 July 2014. 12. In the course of that hearing on that day, Mr Morgan of counsel (who appeared for the plaintiff) read two affidavits of the plaintiff made on 21 February and 2 June 2014 and an affidavit of the plaintiff's wife, also made on 2 June 2014. Neither the plaintiff nor his wife were required for cross-examination on that occasion. 13. I note that, in the preparation for the hearing, two affidavits made by the plaintiff's solicitor (Mr Scott Hall-Johnston) on 18 April and 15 July 2014 and one affidavit made by the defendants' solicitor (Mr Paul Wholohan) dated 7 January 2014 were filed and served. None of those affidavits were, however, read because of two concessions fairly made by Mr Turnbull of counsel (who appeared on behalf of the defendants). Those concessions were: first, that there was no complaint about the plaintiff's prosecution of his claim once solicitors had been formally retained on 11 December 2012; and, secondly, that the threshold fixed by section 109(2)(b) of the Act had been exceeded. As I would understand it, however, that latter concession was made concerning the status of the plaintiff on and from December 2012. There is no evidence to suggest that the threshold was exceeded at any significant time earlier to April 2012. 14. The only issue therefore to be determined was whether the plaintiff has provided a full and satisfactory explanation for the delays (from the date of the collision until he first contacted his solicitors) in submitting the claim form and commencing the proceedings. 15. During the course of submissions on behalf of the defendants (the submissions for the plaintiff having been heard first), Mr Morgan sought and obtained an adjournment to adduce further evidence, by way of affidavit, from the plaintiff. 16. The application for the adjournment came about as a result of a submission made by Mr Turnbull that nowhere in the two affidavits made by the plaintiff did he expressly say that he did not know that he had (modified) common law rights (under the Act) as well as rights to workers compensation. In this context, Mr Turnbull had submitted that it was not open to the court to infer any such lack of knowledge from the then extant affidavits (cf Ellis v Reko Pty Limited [2010] NSWCA 319). 17. Consequently the hearing was adjourned to 26 September 2014 in order to permit the plaintiff to adduce such further evidence. 18. In the result, however, no further affidavit was made. Rather, the plaintiff gave oral evidence on the resumed hearing date. (Regrettably, the transcript of that resumed hearing is still not available).