In order to rely upon a Section 110 Notice as a bar to
commencing proceedings, it has been held that an insurer must be
able to establish that the claimant failed to commence proceedings
within 3 months of personally receiving the Notice.
The District Court recently handed down judgment in a motion to
reinstate proceedings where the claimant failed to commence within
the time required by a Section 110 Notice issued by the
Section 110 relevantly states:
The insurer of a person against whom a claim is made may
give the claimant notice requiring the claimant to
commence court proceedings in respect of the claim if:
the claimant has been entitled to commence the proceedings
for a period of at least 6 months, and
at least 18 months have elapsed since the date of the motor
accident to which the claim relates.
The claimant must comply with the notice within 3
months after its receipt.
If the claimant does not comply with the notice as required
by this section, the claimant is taken to have withdrawn the
In an ex tempore judgment allowing the motion,
Charteris DCJ held that the Section 110 Notice was not valid unless
there is proof of receipt by the claimant himself or herself.
This case provides a strong indication by the District Court
that it expects insurers to serve any Section 110 Notice personally
on the claimant. The insurer will, of course, also have to serve a
copy upon the claimant's solicitors (if represented). This
decision is consistent with the subsequent provisions which make it
incumbent upon a claimant, who is seeking to reinstate proceedings,
to provide a full and satisfactory explanation for the delay.
It is noted that the wording of s 110 contrasts to other
provisions in which the insurer may issue a notice, such as s 81
(in respect of liability) and s 85A (in respect of the provision of
particulars), which emphasise the time in which the insurer must
give notice rather than the time in which the claimant receives
notice. It is further noted that those provisions also require
notice to be given to the claimant which, according to the
reasoning in Davis v Moss, would require the notice to be
served directly upon the claimant as well as his or her
While this decision may not be followed by other courts, it
would be prudent that insurers nonetheless attend to personal
service of Section 110 Notices unless and until the District Court
or a higher court gives an indication to the contrary.
As a general principle, it is also recommended that a Section
110 Notice not be issued until at least one week after the
conditions in subss 110(1)(a) and (b) have been met in order to
avoid any misunderstanding as to when the prescribed period
1 Charteris DCJ
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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