Australia: Section 109(2) clarification and failure of plaintiff to satisfy Section 73 for delay following retainment

Last Updated: 24 April 2012
Article by Jessica Micallef

Judgment date: 13 April 2012

Agyeman–Badu v The Nominal Defendant [2012] NSWDC 35

District Court of NSW1

In Brief

  • Under s 109(2) of the Motor Accidents Compensation Act 1999 (the Act), the date upon which a certificate for assessment or exemption is issued is the date on the certificate, not the date it is posted to the parties.
  • Actual prejudice is established when, due to the plaintiff's delay in lodging a claim form, the defendant cannot determine liability.
  • It is reasonable that a plaintiff would not be aware of the existence of the Nominal Defendant scheme when justifying a delay in lodging a claim form.
  • Once a plaintiff has been made aware of their entitlement to make a claim and retained solicitors, they are required to bring the late claim in a prompt manner.


On Thursday, 26 November 2007, the plaintiff alleged that she was crossing a street with a green "Walk" signal when a van suddenly drove from its stationary position through a red light and did not stop and assist at the scene. The plaintiff took evasive action and jumped backwards, sustaining injury.

The plaintiff provided varying accounts of the accident to ambulance officers, hospital staff and her treating doctors. Therefore, the mechanism of the accident, and whether a vehicle was in fact involved, was difficult for the defendant to determine. A further complication was that the plaintiff had limited recollection of the accident.

The plaintiff served her Claim Form late. There was also an issue regarding whether proceedings had been commenced at the time.


The plaintiff filed a Statement of Claim more than 2 months after the date of the Certificate of Exemption but less than 2 months after the letter enclosing this document. Gibson DCJ determined that the date of the certificate, rather than the date upon which the document is posted to the parties, is the date the certificate is issued under s 109(2) of the Act. Accordingly, the Statement of Claim had been filed outside the 2-month period and leave to commence proceedings was required pursuant to s 109 of the Act. As a result, the defendant was able to lead evidence on the issue of prejudice, which would not otherwise be considered if the claim was merely a "late claim" under s 73 of the Act.

Gibson DCJ determined that the defendant was able to establish that it suffered actual prejudice as if the claim was investigated within the 6-month period following the motor vehicle accident it would have retained the identification of one or more of the many witnesses who could have stated whether the accident was a motor vehicle accident or whether the plaintiff had merely fallen or tripped for some other reason, consistent with the ambulance record and hospital notes. Considering the delay, any attempt to locate witnesses would now be fruitless.

Gibson DCJ determined that:

"although there were clearly many witnesses to the accident at the time who could have described, if not the registration number of the vehicle, at least the mechanics of the accident, they are unavailable due to the lapse of time. It is now too late for the defendant to establish not only absence of liability, but also any claim for contributory negligence."2

On this basis, her Honour determined that actual prejudice had been established by the defendant and leave to commence proceedings was refused.

Although not required, Gibson DCJ then considered the plaintiff's late claim explanation.

At [74] Gibson DCJ determined that the existence of a nominal defendant is a concept which may not be readily understood and it is understandable that the plaintiff did not know that there was a body set up to deal with claims where the identity of the vehicle in question was unknown and that she could make a claim to this body.

On this basis, Gibson DCJ was of the opinion that the explanation was full and satisfactory until the plaintiff consulted lawyers on 3 December 2009. However, she was of the view that for the 3-month period following 8 March 2010, when the Claim Form was lodged, the plaintiff did not bring the late claim promptly and her explanation ceases to be satisfactory. The reasons provided by the plaintiff for this delay included that she was depressed by her injuries, she thought that she could leave matters in the hands of her solicitors, and she was uncertain of the street in which the accident occurred. In this regard Gibson DCJ took issue with the fact that evidence was not provided as to whether a revised Claim Form was completed and the Claim Form dated 3 December 2009 with the attached medical certificate dated 4 December 2009 was simply lodged.

Further, the plaintiff failed to contact her solicitors for a period of some weeks. Gibson DCJ determined that a reasonable person in the position of the plaintiff would not have delayed providing vital information, such as the subject street, for such a considerable period.


In order to determine whether a plaintiff has complied with s 109(2), consideration should be made to the date of the Certificate of Assessment or Certificate of Exemption from CARS rather than the letter from the MAA enclosing the Certificate and whether a plaintiff is required to seek leave to commence proceedings out of time.

Further, prejudice may be established where a defendant argues that it cannot make a determination of liability, or whether in fact the accident even occurred, as a result of a plaintiff's delay in lodging a claim.

Where a late claim is brought against the Nominal Defendant it will be difficult for an insurer to establish that the claimant should have been aware of the existence of the scheme.

However, any further delay in progressing a claim, once the claimant is aware of their rights, may lead to a determination that the claimant has not provided a full and satisfactory explanation for the delay. However, consistent with previous judgments, each case must turn on its facts.

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