Linda Joy Crawshaw v Natasha Coxon [2018] NSWDC 92

District Court New South Wales

Medium Neutral Citation: Linda Joy Crawshaw v Natasha Coxon [2018] NSWDC 92 Hearing dates: 6 April 2018 Decision date: 13 April 2018 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Leave granted to commence proceedings out of time. For Orders see [46] Catchwords: Motor vehicle accident; late claim; full and satisfactory explanation; predictive assessment of damages Legislation Cited: Civil Liability Act 2002 Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Al-Ebadi v Guo [2017] NSWDC 107 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Dijakovic v Perez [2015] NSCCA 174 Eades v Gunestepe [2012] NSWCA 204 Harika v Stanley Tupaea (2003) 58 NSWLR 675 Medlin v State Government Insurance Office (1995) 182 CLR 1 Sinclair v Darwich (2010) 77 NSWLR 166 Category: Procedural and other rulings Parties: Linda Joy Crawshaw (Plaintiff) Natasha Coxon (Defendant) Representation: A Canceri (Plaintiff) D Hanna (Defendant) File Number(s): 17/36243018/41161 Publication restriction: Nil

Judgment on SUMMONS AND notice of motion

Introduction 1. On 7 February 2018 the plaintiff filed a Summons seeking the following relief: 1. "An order pursuant to s 109(1) of the Motor Accidents Compensation Act 1999 (NSW) ("MACA") granting leave to commence proceedings out of time. 2. An order that the plaintiff's explanation for the delay in making a claim is full and satisfactory. 3. An order that the defendant pay the plaintiff's costs of, and incidental to, this Summons and of these proceedings. 4. Such other orders as the court deems fit to make." 1. The proceedings for which leave was being sought to commence out of time, had in fact been commenced by filing of a Statement of Claim on 30 November 2017. That prompted the defendant to file a Notice of Motion on 22 December 2017 in those proceedings seeking the following prayers for relief: 1. "That these proceedings be dismissed pursuant to s 109 of the MACA. 2. That the plaintiff pay the defendant's costs of, and incidental to, this Notice of Motion and of these proceedings." 1. The plaintiff had suffered injuries in a motor vehicle accident on 20 October 2011. The time for bringing proceedings pursuant to the MACA therefore expired on 20 October 2014. 2. The plaintiff served a claim form on the defendant insurer on 9 March 2015. As that claim was out of time, the plaintiff was required to provide to the insurer an explanation for the delay in bringing her claim. She did so by way of statutory declaration made on 21 July 2015. 3. On 7 August 2015 the insurer accepted the plaintiff's explanation as being full and satisfactory. Further, the claim then proceeded through the MAS procedure to a CARS assessment, which resulted in an award in favour of the plaintiff on 20 October 2017. Pursuant to the MACA, the plaintiff elected not to accept the award, but to proceed to commence court proceedings. 4. Section 109 of the MACA provides as follows: "109 Time limitations on commencement of court proceedings (1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after: (a) the date of the motor accident to which the claim relates, or (b) if the claim is made in respect of the death of a person – the date of death, except with the leave of the court in which the proceedings are to be taken. (2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued. (3) The leave of the court must not be granted unless: (a) the claimant provides a full and satisfactory explanation to the court for the delay, and (b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident." 1. In this matter, the defendant has conceded that the plaintiff has provided a full and satisfactory explanation for the delay in bringing her late claim in March 2015. Further, the defendant concedes that the plaintiff's claim was diligently prosecuted through the MAS process to a CARS hearing until the award in October 2017. There is therefore no issue with respect to the conduct of the plaintiff's solicitors in prosecuting the plaintiff's claim. However, the defendant advocates that leave should not be granted to the plaintiff to commence the proceedings on two bases, namely: 1. that the plaintiff's explanation is not full, and is therefore not satisfactory because the court could not be satisfied as to her knowledge and belief at the time when she made her election not to accept the award following the CARS hearing. The defendant submitted that there was a gap in the evidence, there being no evidence as to what was in her mind at the time of making her election, and therefore the explanation was not full, and could not be regarded as "satisfactory". 2. the plaintiff's claim for damages would not pass the threshold contained in s 109(3)(b) of the MACA. For that purpose, it was agreed that the threshold, being 25% of the maximum amount that may be awarded for non-economic loss under s 134, was the sum of $112,500.00. 1. Given that the proceedings had already been commenced by the plaintiff, it was clear that the leave sought in the plaintiff's Summons, if granted, would be granted on a "nunc pro tunc" basis.