William Alexandra Warren v The Nominal Defendant [2015] NSWDC 29

District Court New South Wales

Medium Neutral Citation: William Alexandra Warren v The Nominal Defendant [2015] NSWDC 29 Hearing dates: 6 March 2015 Date of orders: 13 March 2015 Decision date: 13 March 2015 Jurisdiction: Civil Before: Hatzistergos DCJ Decision: Application to dismiss proceedings under s 73(7) Motor Accidents Compensation Act 1999 (NSW) declined Catchwords: TORTS – negligence – motor accident cases PROCEDURE – dismissal of claim – delay – full and satisfactory explanation Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) ss 34, 34A, 66, 72 and 73 Workers Compensation Act 1987 (NSW) ss 66 and 67 Cases Cited: Figliuzzi v Yonan [2005] NSWCA 209 Lyu & Anor v Jeon (2012) 62 MVR 409 Russo v Aiello [2003] HCA 53; (2003) 215 CLR 163 Walker v Howard [2009] NSWCA 408; (2009) 78 NSWLR 161 Category: Procedural and other rulings Parties: William Alexandra Warren (Plaintiff/Respondent) The Nominal Defendant (Defendant/Applicant) Representation: Counsel: Mr D Del Monte (Plaintiff) Mr B Kelleher (Defendant) Solicitors: Martin Bullock Lawyers (Plaintiff) Sparke Helmore Lawyers (Defendant) File Number(s): 2014/00181102 Publication restriction: Nil

Judgment 1. On 7 May 2011, the Respondent/Plaintiff was involved in a motor vehicle accident. Pursuant to s 72 of the 1999 Act, he was required to make his claim within six months of the date of the accident, being 7 November 2011. He did not do so until 25 July 2012, being 37 weeks and 2 days after the aforesaid date. 2. By Notice of Motion, filed 12 August 2015, the Applicant/Defendant moves the court for orders:- 1. Pursuant to s 34A(3) of the Motor Accidents Compensation Act 1999 (hereinafter '1999 Act') that the Plaintiff's statement of claim be dismissed for breach of s 34; 2. Pursuant to s 73(5) of the 1999 Act, that the Plaintiff's statement of claim be dismissed for breach of ss 72 and 73; 3. That the Plaintiff pay the Defendant's costs of and incidental to this notice of motion and of the proceedings; and 4. Any such other orders as this honourable court deems fit. 1. By consent, prayer 1 of the Notice of Motion was stood over for hearing in conjunction of the substantive matter. The Defendant has proceeded with its application to dismiss the statement of claim under s 73(5) of the 1999 Act for breaches of ss 72 and 73. 2. It is not in issue that the Defendant has not lost the right to reject the claim under s 73(4) and accordingly is entitled to bring this application. 3. On an application being brought, S 73(7) of the 1999 Act requires the Court to dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay. 4. It was not in issue between the parties that the Plaintiff provided a full explanation for the delay. However the Defendant contends that the explanation is not satisfactory. BACKGROUND 5. The Defendant relies on two affidavits of Grant Galvin, sworn 27 October 2014 and 5 March 2015. The Plaintiff relies on two affidavits, being one from himself sworn 2 March 2015 and one from his solicitor, Greg Martin, sworn 2 March 2015. 6. The Plaintiff's accident was a work-journey claim, in respect of which it is not in issue that he was entitled and did receive worker's compensation benefits. The Plaintiff's affidavit of 2 March 2015 includes as annexure C a letter from his self-insured employer Woolworths dated 7 May 2012. That letter proposed an offer of compensation, pursuant to the provisions of ss 66 and 67 of the Workers Compensation Act 1987 (NSW). Relevantly, the letter invited the Plaintiff to obtain independent legal advice and recommended contact with the Law Society of New South Wales to obtain the details of specialist lawyers in the area. The letter also advised that the offer of settlement was confidential and it was only to be discussed with a lawyer. 7. Shortly after receiving that letter, the Plaintiff's evidence was that he made enquiries with the Law Society of New South Wales and was provided the names of several lawyers in the Parramatta area, near where he lived in Greystanes. The Society's reply, dated 14 May 2012, is annexure D to the Plaintiff's affidavit and included details of his present solicitors amongst three nominated firms which might have assisted him. 8. The Plaintiff's account at [20] of his affidavit is that he rang and made an appointment on 29 May 2012 to see a solicitor who he identified as Shaher Dahlan from Parramatta City Legal. The firm was also noted in the Law Society's letter. The Plaintiff indicates that he was advised by this solicitor that he was out of time to be able to make a motor accidents claim and that he had to act quickly to lodge it. The Plaintiff stated that he was overwhelmed by information and had trouble understanding what the lawyer said to him. He was further confused and did not know what to do. He stated that because of his confusion and memory loss, he found it all too overwhelming and did not wish to get into any more paper-filling forms. [1] 9. In mid-late June, the Plaintiff stated that he was encouraged by his wife to seek further legal advice, saying "if you want to, get a second opinion. Just get it sorted." His evidence was that he was overwhelmed and confused and not sure what to do. [2] 10. The Plaintiff next gave evidence that in mid-late June 2012 his wife phoned to make an appointment on 3 July 2012 to meet his present solicitor, Mr Martin, from Martin Bullock Lawyers. Mr Martin told the Plaintiff that he was outside the normal allowable time to make a claim which, as he was informed, was within 6 months of the accident. [3] 11. At [25] of his said affidavit, the Plaintiff states that Mr Martin explained to him about filling out the relevant form and that he was in a better frame of mind as he was back at work and coping better. He said he was able to understand what Mr Martin was telling him and that he might have rights under the 1999 Act.