Australia: Court dismisses Section 109 Summons for the second time. Inadequate explanation for delay in commencing proceedings.

Curwoods Case Note
Last Updated: 22 April 2012
Article by Nabil Ghattas and Ian Jones

Judgment date: 19 April 2012

Mortimer v Moon [2012] NSW DC

District Court1

In Brief

  • The court dismissed the plaintiff's further Summons for leave to commence proceedings more than 3 years after the motor vehicle accident, an earlier Summons having also been dismissed.
  • Explanations of the plaintiff and his former legal representative were not full and satisfactory, the knowledge, information and belief of the plaintiff not being explained for all periods of delay. Further, there was no explanation from Counsel briefed by the former legal representative, despite Counsel having conferred with the plaintiff prior to the expiry of a Section 110 Notice.


The plaintiff sustained injuries in a motor vehicle accident on 10 April 2006 and lodged a personal injury claim with the CTP Insurer. On 15 May 2008, a Section 81 Notice was issued denying liability.

The 3-year time limit for the commencement of court proceedings expired on 10 April 2009. The insurer applied to CARS for an Exemption from Assessment and a Certificate was issued on 2 June 2009.

In December 2009, the insurer issued a Section 110 Notice requiring the plaintiff to commence court proceedings within 3 months. The plaintiff attempted to file a Statement of Claim in the District Court on 8 February 2010 but it was rejected for not adhering to the Uniform Civil Procedure Rules.

The Section 110 Notice expired on 22 March 2010. On 12 May 2010, the plaintiff filed a Summons in the District Court seeking orders for leave to proceed out of time pursuant to 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 for leave to proceed out of time pursuant to s 109.

That Summons was heard by Judge Johnstone on 16 February 2011 and his Honour handed down judgment on 25 February 2011.2

Judge Johnstone found that the evidence presented to the court was hopelessly inadequate with respect to the explanation for the delay. A significant issue was that the plaintiff's former legal representative did not explain why proceedings were not commenced within the 3-year limitation period. Further, the evidence from the plaintiff did not account for all his knowledge and beliefs of the relevant timeframes.

His Honour noted that the court was unable to evaluate whether a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay, as the plaintiff never explained whether he was even aware of the delay.

The current proceedings were commenced by way of a further Summons (the second Application) and the plaintiff sought an order for leave to proceed out of time pursuant to s 109.

The second Application was heard by her Honour Judge Balla on 13 and 16 April 2012 and judgment was handed down on 19 April 2012.

District Court Decision

The issues to be determined were as follows:

1. Was the plaintiff able to bring a second Application?

Her Honour Judge Balla held that:

"... it is open to Mr Mortimer to bring a fresh Application even where the evidence led on the second Application could have been led on the first Application"3.

Thus the plaintiff was entitled to bring a second Application for an extension of time under s 109. Her Honour was unwilling to revisit the Court of Appeal decision in Nominal Defendant v Manning despite it pre-dating the Civil Procedure Act.

2. The consequences of the plaintiff's failure to seek an order for the reinstatement of his claim.

The plaintiff failed to seek an order in his second Application for the reinstatement of his claim pursuant to s 110. Counsel for the plaintiff sought leave to amend the Summons to address this deficiency but this amendment was refused by her Honour.

Her Honour held that the hearing of the evidence had closed and the defendant would suffer prejudice by the granting of such an amendment.

3. Whether the discretion to give the plaintiff leave to file the Statement of Claim out of time should be exercised in his favour.

This related to whether the plaintiff had provided a full and satisfactory explanation for the delay in making the claim. Her Honour noted that the onus for such explanation rests with the plaintiff and the explanation is to include all acts and omissions of all persons, including the plaintiff, with respect to their relevant conduct in explaining the delay. The reason is that the court requires a full explanation in order to consider the delay.4

The further explanation provided by the plaintiff was as follows:

  1. He followed directions given to him by his former legal representative.
  2. There was no concern with respect to the slow progress of his claim and he understood from his former legal representative that despite liability being denied, an offer from the insurer for settlement would be made.
  3. His former legal representative did not tell him there was a 3-year time limit.
  4. It was not until the first Application that concerns in relation to the claim were raised.

The plaintiff's former legal representative provided the following explanation:

  1. He had a background in commercial law and purchased a solicitor's practice which included personal injury litigation and thought the limitation period was 6 years. He saw the plaintiff in early 2007 and only became aware of the correct limitation period in late 2009.
  2. He could not recall telling the plaintiff that there was a 3-year time limit to commence proceedings.
  3. He inferred from the fact the insurer arranged medical examinations that an offer would be made despite the denial of liability.
  4. He acknowledged receiving a letter from the insurer's solicitor with respect to s 110 and the requirement to commence proceedings within 3 months.
  5. In late 2009 he retained a barrister, who provided an oral advice at a conference but the plaintiff was not present.

Her Honour held that the explanations from the plaintiff and his former legal representative were neither full nor satisfactory. They did not deal with the actions, knowledge and belief of the plaintiff after he was informed of the 3-year time limit and the requirement to commence proceedings within 3 months.

Her Honour noted that there was no evidence from the barrister who provided the advice to the plaintiff's former legal representative, to possibly assist the court in understanding the knowledge and beliefs of the plaintiff as they were at the time.

Her Honour agreed with the decision of Judge Johnston that despite the insurer arranging medical examinations there was no indication that an offer of settlement was to be made. Therefore the plaintiff's former legal representative's belief for almost 3 years that the insurer would make an offer was unreasonably held.

Her Honour decided that the explanation was neither full nor satisfactory and as such the second Application was dismissed with an order for costs for the defendant.


A second Application seeking leave to commence proceedings out of time will be heard by the court, even in circumstances where the additional evidence brought on by the second Application could have been called in the first Application.

This case reinforces the requirement for a full and satisfactory explanation for the delay in commencing proceedings to include an account of the acts and omissions of the plaintiff and any agent including those acting on the plaintiff's behalf (solicitor and counsel) if their conduct is relevant to the explanation for the delay.

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1Balla J
2Mortimer v Moon [2011] NSW DC
3Nominal Defendant v Manning (2000) 50 NSW LR 139
4Walker v Howard (2009) NSW Court of Appeal 408

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