District Court New South Wales Medium Neutral Citation: Nasih v Nguyen [2018] NSWDC 153 Hearing dates: 8 June 2018 Date of orders: 15 June 2018 Decision date: 15 June 2018 Jurisdiction: Civil Before: Russell SC DCJ Decision: 1. Defendant's Notice of Motion filed on 25 May 2018 is dismissed. 2. Order the defendant to pay the plaintiff's costs. Catchwords: MOTOR ACCIDENTS – whether Statement of Claim filed out of time – suspension of time under s 109(2) Motor Accidents Compensation Act 1999 – certificate of exemption from assessment – whether application for exemption and issue of certificate operates to suspend time for commencing proceedings Legislation Cited: Motor Accidents Compensation Act 1999 Cases Cited: Paice v Hill [2009] NSWCA 156 Category: Procedural and other rulings Parties: Sanaa Nasih (plaintiff) Yen Ngec Thi Nguyen (defendant) Representation: Counsel: M Cleary (plaintiff) D O'Dowd (defendant) Solicitors: Stephen Smart & Associates (plaintiff) Hall & Wilcox (defendant) File Number(s): 2018/110096 Judgment Introduction 1. This case raises a limitation point which has apparently not been decided in the 19 years since the commencement of the Motor Accidents Compensation Act 1999 (the Act). 2. The plaintiff sued the defendant by a Statement of Claim filed on 9 April 2018, alleging that the defendant was the driver of a motor vehicle which collided with the plaintiff who was a pedestrian. Negligence is alleged. The accident occurred on 11 January 2015. By s 109(1)(a) of the Act a claimant is not entitled to commence proceedings in respect of a claim more than three years after the date of the motor accident to which the claim relates. The plaintiff commenced her proceedings on 9 April 2018 which is more than three years after the date of the motor accident. Section 109(2) of the Act provides: "Time does run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until two months after a certificate as to the assessment or exemption from assessment is issued." 1. By a Motion filed on 25 May 2018 the defendant seeks the dismissal of the Statement of Claim pursuant to s 109 of the Act. 2. The plaintiff has not sought leave of the court to commence the proceedings out of time, as she could have done under s 109(1). Rather, the plaintiff argues that she is within time because of the operation of s 109(2). The Legislation 1. Section 3 of the Act defines "claim" to mean "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". 2. The Act is designed to promote the early resolution of claims. A claimant is obliged to provide as much information as possible to the insurer and the insurer is obliged to consider and if appropriate make an attempt to settle the case. If the claim cannot be settled, then the parties are directed to have the claim assessed by an appointed assessor. Generally the assessment of a claim results in the assessor certifying a figure for damages. This figure is binding upon the insurer but not upon the claimant. If the claim does not end in an assessment, then court proceedings can be commenced. 3. Part 4.4 of the Act deals with Claims Assessment and Resolution. Division 2 of Pt 4.4 deals with Assessment Of Claims. Section 90 of the Act provides that a claim may be referred to the Authority by the claimant or the insurer, or both, for assessment under this Part. In s 4 of the Act the "Authority" means the State Insurance Regulatory Authority (SIRA). 4. Section 91 of the Act deals with time limits for referring claims. By s 91(1) a claim may not be referred for assessment unless a period of 28 days has elapsed after each party to the claim has made an offer of settlement as required by s 89C. Section 91(2) provides exemptions to the bar in s 91(1). By s 91(2)(c) a claim may be referred for assessment under this Part at any time if "the claim is referred for assessment by way of referring the claim" for a certificate of exemption from assessment under this Part. 5. Section 92 of the Act deals with claims which are exempt from assessment. It provides: "(1) A claim is exempt from assessment under this Part if: (a) the claim is of a kind that is exempt under Motor Accident Claims Assessment Guidelines or the regulations, or (b) a claims assessor has made a preliminary assessment of the claim and has determined (with the approval of the Principal Claims Assessor) that it is not suitable for assessment under this Part. (2) If a claim is exempt from assessment under this Part, the Principal Claims Assessor must, as soon as practicable, issue the insurer and claimant with a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned)." 1. Section 94 deals with what are known by practitioners as "general assessments". Section 94(1) provides: "The claims assessor is, in respect of a claim referred to the assessor for assessment, to make an assessment of: (a) the issue of liability for the claim (unless the insurer has accepted liability), and (b) the amount of damages for that liability (being the amount of damages that a court would be likely to award)." 1. Section 96 of the Act deals with assessment of disputes between a claimant and an insurer in connection with claims. Section 96(1) has a list of such matters which are largely preliminary or procedural matters. For example, s 96(1)(a) provides that a dispute as to whether a late claim may be made in accordance with s 73, may be referred for assessment under s 96(2). Section 96(3) provides that any such dispute is to be referred to a claims assessor, the dispute is to be assessed and a certificate issued by the claims assessor. Court Proceedings under the Act 1. Section 108 of the Act provides: "(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 s 92 (Claims exempt from assessment), or (b) a claims assessor has issued a certificate in respect of the claim under s 94 (Assessment of claims). (2) The provisions of this section are in addition to those of s 109. Accordingly, both sections are capable of applying to a claim." 1. It is clear that s 108 operates to prohibit a claimant commencing court proceedings unless there is a s 92 certificate of exemption from assessment, or an assessment under s 94 has taken place. It is important to keep the terms of s 108 in mind when one considers s 109. 2. Section 109 of the Act, which is the critical section in the present proceedings, is as follows: "(1) A claimant is not entitled to commence proceedings in respect of a claim more than three 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 two months after a certificate as to the assessment or exemption from assessment is issued." 1. Sub-sections (3), (4) and (5) of s 109 have no relevance to the present Motion. The plaintiff is not seeking leave to bring proceedings out of time, asserting that she is within time. Consideration of Section 109(2) 1. It is clear from a reading of the Act and the authorities in relation to it that the scheme of the Act is to direct claimants through an assessment process by a claims assessor, before a party has the right to bring court proceedings. Indeed, it is a pre-condition to having an entitlement to commence court proceedings that either there has been a certificate issued exempting the claim from assessment, or a certificate issued in respect of an assessment – s 108(1). 2. Obtaining a certificate of exemption or obtaining a general assessment certificate takes time. An application for each has to be lodged and the matter is then referred to a claims assessor who will come to a decision and issue a certificate. It would be logical for there to be a provision in the Act suspending time running while either step, which is a pre-condition to commencing court proceedings, is taken and concluded. If that were not so, then an insurer could apply for an exemption from assessment on the last day of the three year limitation period, and the subsequent time taken to consider and issue the certificate would put the claimant out of court. 3. Counsel for the defendant submits that s 109(2) should be read so as to provide that time does not run for the purpose of s 109 only when a claim has been referred to the Authority for general assessment under s 94 and two months have elapsed since a certificate under s 94 has issued. 4. Counsel for the defendant points out that even if a general assessment is sought under s 94, such an assessment deals with both liability – s 94(1)(a) – and damages – s 94(1)(b). It is possible that when a contested claim, on both liability and damages, is submitted to an assessor, the assessor might come to a view that the matter should be exempted from assessment generally. To do so the assessor would need to be satisfied that such claim is of a kind exempt under the Guidelines or the regulations or a preliminary assessment has come to the view that the claim is not suitable for assessment – s 92(1). The matter would then need to go to the Principal Claims Assessor. The Exemption in this Case 1. On 10 August 2016 the insurer issued a notice under s 81 of the Act denying liability for the plaintiff's claim. The letter indicated that the insurer was actually unable to determine liability at the time, and that investigations were ongoing. The letter pointed out that the insurer was required to make a decision on liability under the Act within a certain time period, and thus it was denying liability for the claim and would reconsider its decision when further information had been received. 2. On 4 April 2017 the insurer lodged an Application for Exemption from the Claims Assessment and Resolution Service. This application was made on a prescribed form and was said to be made under s 92(1)(a) of the Act. It is to be recalled that this provision says that a claim is exempt from assessment if the claim is of a kind that is exempt under the Guidelines or the regulations. Clause 8.11.1 of the Guidelines says that one of the circumstances in which liability could be denied, was if the insurer in writing denied liability because the fault of the owner or driver of the motor vehicle was denied. On page 8 of the form, Box 6(a) was marked, to indicate that liability was expressly denied by the insurer in writing because the insurer denied fault on the part of the owner or driver of the vehicle. This box referred to cl 8.11.1 of the Guidelines. 3. Thus the application for exemption was based on the claim being of a kind that was exempt under the Motor Accident Claim Assessment Guidelines and was specifically made under s 92(1)(a) of the Act. 4. About five weeks after the date of the application by the insurer, the Authority issued a Certificate dated 11 May 2017. The Certificate was issued under s 92(1)(a) of the Act and certified that the claim was exempt from assessment because the insurer denied liability for the claim. The Certificate said that the claim was exempt under s 92(1)(a) of the Act because it satisfied cl 8.11.1 of the Guidelines. 5. Prior to the issue of this Certificate the claimant was not entitled to commence court proceedings – s 108(1) of the Act. After the issue of the Certificate, the bar to commencing proceedings was removed and the plaintiff could bring court proceedings – s 108(1)(a). 6. The issue for determination is whether time for bringing proceedings was suspended starting from the insurer bringing the application for exemption on 4 April 2017, and until two months after the Certificate issued on 11 May 2017, that is, until 11 July 2017. That is the construction of s 109(2) for which the plaintiff contends. If that construction is right then the Statement of Claim was filed within time. Consideration of the Construction of Section 109(2) 1. A claimant cannot commence court proceedings unless they have a certificate exempting a claim from assessment under s 92 or a certificate of assessment of the claim under s 94. Section 109(2) imposes a three year time limitation period on commencement of court proceedings. However, time does not run for the purposes of s 109 from the time that a claim has been referred to the Authority for assessment and until two months after a certificate as to the assessment or exemption from assessment is issued. It is clear that s 109(2) deals with the alternative processes for a claim to be referred under s 94 for general assessment or under s 92 for an exemption from assessment. 2. Counsel for the defendant submitted that the referral of the matter under s 92 for exemption from assessment is not a referral to the Authority for assessment within the meaning of that phrase in s 109(2). Counsel relied upon the decision of the Court of Appeal in Paice v Hill [2009] NSWCA 156. 3. In that case there was a referral for assessment, but it was not a referral under s 92 or s 94. Rather it was a referral for a "special assessment" under s 96. The matter referred was a dispute as to whether the claimant had made a full and satisfactory explanation for the delay in making her claim. The trial judge held that time was suspended while this dispute had been referred for an assessment. The defendant accepted that time was suspended while the claim had been referred for general assessment under s 94, but the time was not suspended when the claim was referred for special assessment under s 96. 4. Justice Ipp noted at [40] that s 94 concerned assessments made "in respect of a claim referred to the assessor for assessment". A s 94 assessment involved the assessment of the basic elements of the claims. However, s 96 involved the assessment of disputes in regard to claims that were essentially procedural in nature. A dispute under s 96 would ordinarily arise before any assessment under s 94 of liability or damages. 5. His Honour said that under s 109(2) time did not run for the purposes of s 109 from the time that "a claim" was referred for assessment. On the facts in that case, the only referral of a claim for assessment which was relevant was the referral under s 94. The Court of Appeal held that an assessment under s 96, involving as it did the assessment of a dispute rather than the assessment of a claim, did not suspend time under s 109(2). Thus the plaintiff in that case was out of time. The result follows from the fact that an assessment under s 96 is not mentioned in s 109(2). 6. Paice v Hill had nothing to say about a situation such as the present where a claims assessor had issued a certificate of exemption in respect of the claim under s 94. The issue to be determined is therefore whether a certificate in respect of the claim under s 92 has the same effect under s 109(2) as a certificate under s 94. There is no case directly on point, according to the researches of both counsel, and my own research. 7. Firstly, it is to be noted that a certificate under s 92 is issued by an assessor, being the Principal Claims Assessor – s 92(2). 8. Secondly, the certificate, which was put into evidence in the present case, records four matters, culminating in a statement that the claim was exempt from assessment under s 92(2)(a) of the Act. Those four matters are said on the face of the certificate to be "the findings of this assessment". 9. Thirdly, the words of s 108(1)(a) of the Act only allow a claimant to commence court proceedings if the Principal Claims Assessor has issued a certificate in respect of the claim under s 92. 10. Fourthly, s 91(2)(c) of the Act deals with a time limit if "the claim is referred for assessment by way of referring the claim for a certificate of exemption from assessment under this Part". (Emphasis added) 11. Against the background that it is a claim, rather than a dispute as to a claim, which is referred to the authority for issue of a certificate by the Principal Claims Assessor that a claim is exempt from assessment, I find that the construction of s 109(2) is that both an application for a s 92 exemption and an application for a s 94 assessment, involve a claim that "has been referred to the Authority for assessment". That being so, time is suspended between "the time that a claim has been referred to the Authority for assessment" and "until two months after a certificate as to… exemption from assessment" is issued. 12. This seems the most logical construction of s 109(2), particularly when the terms of s 108 are taken into account. If the obtaining of a certificate as to exemption is a gateway to bringing proceedings, then it is understandable that the time taken to obtain that certificate results in a suspension of time running under s 109 of the Act. Conclusion and Orders 1. For the reasons set out above the defendant's motion filed on 25 May 2018 fails. 2. My orders are: 1. Defendant's Notice of Motion filed on 25 May 2018 is dismissed. 2. Order the defendant to pay the plaintiff's costs. ********** 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: 15 June 2018