Judgment date: 25 February 2011
Mortimer v Moon  NSW DC
- The Court dismissed the plaintiff's Summons for leave to commence proceedings more than three years after the motor vehicle accident, due to the explanation for delay being hopelessly inadequate.
- It was impossible for the Court to evaluate the reasons for the failure to commence proceedings due to the absence of any explanation. The explanation given was not full and whilst the Court accepted that it contained some references to actions, the explanation said absolutely nothing about the plaintiff's knowledge and belief.
The plaintiff sustained injuries in a motor vehicle accident on 10 April 2006. The plaintiff lodged a personal injury claim form with the defendant's compulsory third party insurer. On 15 May 2008, a Section 81 Notice was issued denying liability.
The three year limitation period for the commencement of Court proceedings expired on 10 April 2009. Thereafter, the insurer applied to CARS for an exemption from assessment and a certificate issued on 2 June 2009.
In December 2009 the insurer issued a Section 110 Notice requiring the plaintiff to commence Court proceedings within three months of the date of the Notice. The plaintiff sought to file a Statement of Claim in the District Court on 8 February 2010 but it was not accompanied by a Schedule 10 Notice under the Uniform Civil Procedure Rules in respect of motor accident matters and was rejected by the Court Registry.
The Section 110 Notice expired on 12 February 2010. The plaintiff filed a Summons in the District Court on 12 May 2010 seeking orders for leave to proceed out of time under s 109.
On 5 October 2010 an Amended Summons was filed by the plaintiff seeking the reinstatement of the claim due to the expiration of the Section 110 Notice and a grant of leave for the delay in commencing proceedings under s 109.
District Court decision
The plaintiff's Amended Summons was heard by Judge Johnstone on 16 February 2011.
His Honour handed down his decision on 25 February 2011.
In considering the history of events, his Honour noted:
- the plaintiff first sought legal advice in January 2007, some nine months after the accident and there was no evidence that expressly explained why the plaintiff did not seek legal advice sooner nor what his stated knowledge was when he first consulted his solicitor;
- the Section 81 Notice was served on the plaintiff's solicitor but there was no evidence before the Court as to whether the solicitor had informed the plaintiff about the Notice or advised him as to its significance or obtained any instructions in relation to it;
- while there was sporadic activity in relation to the plaintiff's claim between the date of the Section 81 Notice and 5 May 2009 when the CARS Application for an Assessment was lodged, it was not disclosed in the affidavit evidence whether the solicitor was aware of the three year limitation period expiring on 10 April 2009 and if so, whether he diarised it, advised the plaintiff about it, or took any instructions about not commencing proceedings in time;
- the evidence about what the plaintiff was doing to progress this claim between May 2009 and the service of the Section 110 Notice in December 2009 was sparse and the basis for the plaintiff stating in his Affidavit that he believed the insurer was obtaining medical information in order to negotiate a settlement with him was not revealed;
- the explanation provided for the final period of delay between December 2009 and the filing of the Summons in May 2010 did not disclose why a further attempt was not made to file the Statement of Claim after it was rejected by the Court Registry in early February 2010, nor what further enquiries were being conducted by the plaintiff's solicitor as stated in the solicitor's Affidavit prior to the commencement of proceedings.
His Honour accepted that the affidavit evidence presented provided an account of some of the actions undertaken by the plaintiff and his solicitor. However, the solicitor never once said why he didn't commence proceedings within the three year limitation period. The Affidavits provided no account at all as to the knowledge and belief of the plaintiff at relevant times, except for the period following the exemption application.
Judge Johnstone noted that the solicitor should have either commenced proceedings after the denial of liability or explained to the Court why not and what advice he gave the plaintiff, and what instructions he received in that regard. Only then could the explanation be said to be full, and an evaluation made as to whether it was satisfactory.
Judge Johnstone found that the material put before the Court was hopelessly inadequate in terms of an explanation for delay. He considered the recent Court of Appeal decisions of Ellis v Reko Pty Ltd2 and Walker v Howard3 in determining what the plaintiff's explanation must address to enable the Court to evaluate the reasons for the delay.
His Honour stated that it was impossible to evaluate the reasons for the failure to commence proceedings, due to the absence of any explanation. Further, whether a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay could not be evaluated by the Court because it was never explained whether the plaintiff even knew there was a delay. Even if it could be inferred that the plaintiff did know there was a time limit, there was no explanation put before the Court as to what motivated him to ignore it and let it pass unremarked.
The plaintiff's Amended Summons was dismissed.
While Judge Johnstone was not required to further consider the Section 110 Notice given his finding that the plaintiff had not provided a full and satisfactory explanation for the delay, he went on to note that the explanation for the failure to commence proceedings within three months as required by the Section 110 Notice is not merely exiguous, it is not a full explanation. Judge Johnstone was not satisfied that the plaintiff had a full explanation for the failure to comply with this Notice.
Judge Johnstone has confirmed that the explanation must be set out in full and it is not sufficient that the Court should be asked to draw inferences from correspondence. This is consistent with the approach set out in the Court of Appeal cases cited.
While the explanation for delay is the plaintiff's explanation, a plaintiff's legal representative will be required to identify the advice they have given in relation to progressing a claim and the actions taken to ensure compliance with the procedural requirements for the commencement of Court proceedings. The approach adopted by a solicitor to progress a claim should be clearly stated and the rationale explained in the affidavit evidence.
1. Johnstone J
2.  NSW CA 319 3
3.  NSW CA 408
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