Almin Bajramovic v Briccio Calubaquib

Background to the application

1. The plaintiff was born on 19 April 1986 in Bosnia. He arrived in Australia in 2001 aged approximately 15 years, and at that time had no English. He underwent English language training and completed his Higher School Certificate in 2004, but with very poor results, not obtaining an UAI score, because of his poor grasp of the English language.
2. The plaintiff was injured on 20 November 2007 when his vehicle was struck from behind. The defendant was the driver of a vehicle immediately behind the vehicle behind the plaintiff's vehicle, and had failed to stop.
3. On 20 December 2007, a personal injury claim form was forwarded by the plaintiff to the compulsory third party insurer of the defendant, Allianz Australia Insurance Limited. Until 30 April 2009, the plaintiff liaised with Allianz himself. By letter dated 29 April 2008, Allianz informed the plaintiff that its insured was at fault and accepted that there had been a breach of duty of care by the defendant. After attending a meeting with the insurer's representatives and receiving an offer to settle his claim, the plaintiff, for the first time, sought legal advice about this matter from his former solicitors on 30 April 2009. From that date until 21 December 2010, Mr Robert Stanoevski, solicitor, had the carriage of the plaintiff's claim. By that time, the three year limitation period, pursuant to the MACA, had expired on 20 November 2010.
4. From December 2010, Mrs Zlatevska, solicitor, assumed conduct of the plaintiff's matter. An application was made pursuant to the MACA to CARS, and in April 2012 a CARS hearing took place and a certificate issued pursuant to s 94(4). The plaintiff was not satisfied with the award pursuant to the certificate, and therefore instructed his solicitors to seek a hearing of his case in the District Court of New South Wales. A Statement of Claim was filed on 4 May 2012.
5. On 30 April 2012, a Notice of Motion seeking an order pursuant to s 109 of the MACA to extend time for filing the Statement of Claim was filed on the plaintiff's behalf. He was neither informed of that application by his then solicitors, nor requested to swear an affidavit in support of it. The Motion was heard before Truss DCJ on 9 July 2012 and the application was dismissed, principally because there was no evidence from the plaintiff explaining the delay.
6. On 30 July 2012, the plaintiff instructed his present solicitors and on 18 January 2013 the present Summons seeking leave was filed. No criticism is made of the handling of the matter on behalf of the plaintiff since 30 July 2012. The Summons came on for hearing before Balla DCJ on 5 April 2013 and after one adjournment, her Honour delivered a judgment on 20 December 2013 dismissing the Summons as an abuse of process. An application for leave to appeal was made in respect of that decision and on 21 May 2015 the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the orders made by her Honour on 20 December 2013. The Summons was then remitted to this court for determination of the question of whether or not the applicant has provided a full and satisfactory explanation for his delay in commencement of proceedings for recovery of damages in respect of the injuries received by him in the accident on 20 November 2007.

The evidence

1. Except for one objection to the whole of para 6 of the affidavit of Mark Thompson, which was upheld, all of the affidavit evidence referred to above was read. Both the plaintiff and his former solicitor, Mr Stanoevski, were required for cross-examination.
2. The evidence established the matters set out, by way of background, above. From 30 April 2009, when the plaintiff first instructed his former solicitors, his claim was progressed by the solicitors arranging for various medical examinations of the plaintiff, briefing counsel to advise, preparing the plaintiff's statement, arranging a settlement conference with the insurer, seeking advice from counsel as to service of various reports and responses to requests from the insurer, and on 25 October 2010, attending an informal settlement conference with the insurer. All of those matters, which were numerous, are set out in annexure A to the affidavit of Mr Stanoevski sworn on 15 May 2013.
3. The evidence establishes that what did not happen prior to 20 November 2010 was: 1. The plaintiff being advised or informed at any time that there was a three year limitation period under the MACA for bringing proceedings, and 2. Any application being made to either CARS or MAS, or proceedings commenced on his behalf, prior to the expiry of that three year limitation period.
4. An explanation was provided by Ms Zlatevska for the failure by the solicitors to file a Statement of Claim, namely, that liability was not in dispute and that the plaintiff "was not entitled to a CARS assessment". She deposed that the plaintiff was not able to have his case referred to CARS until he was able to make an informed choice as to whether to apply for a MAS assessment and that that decision could not be taken until his condition had stabilised. The explanation stated that further, he was not entitled to have his claim referred to CARS assessment until attempts at resolution had been exhausted.
5. On 4 July 2011 an application for assessment of damages was lodged on behalf of the plaintiff with CARS. That application was heard on 4 April 2012 and a certificate issued on 16 April 2012 under s 94(4) of the MACA. Ms Zlatevska was instructed by the plaintiff not to accept the assessment, but to seek a rehearing of the matter in the District Court.
6. The evidence established that the first application brought on behalf of the plaintiff and heard by her Honour Judge Truss, was brought without the knowledge of the plaintiff, and without any affidavit evidence of the plaintiff. As there was no evidence of the claimant's state of mind regarding what needed to happen and what was happening with his claim, her Honour concluded that it was impossible to evaluate whether a reasonable person in the position of the applicant would have been justified in experiencing the relevant delay, both in respect of the period up until 30 April 2009, when the plaintiff was dealing with the insurer direct, and thereafter until 4 July 2011 when the CARS application was lodged. The plaintiff's Notice of Motion was therefore dismissed.
7. As stated above, no criticism is made of the carriage of the plaintiff's matter in the hands of his present solicitor. Further, the ground upon which the summons was dismissed by her Honour Judge Balla on 20 December 2013, namely, abuse of process, is no longer pursued by the defendant.
8. The issue in the case is therefore whether the court should exercise its discretion to extend the time to enable the plaintiff to commence proceedings by filing a statement of claim.
9. The plaintiff was cross-examined by learned Senior Counsel, with good effect, to demonstrate that [5] of his first affidavit sworn 29 November 2012 was incorrect. That paragraph stated as follows: "5 I've never been injured in a car accident and have no knowledge of the procedures involved in making motor accident claims. I was entirely reliant upon my solicitors for running the case and relied on their advice entirely."
10. The plaintiff conceded that when he was aged 17 years he was struck by a vehicle when he was a pedestrian on 28 July 2003. In [21] of his affidavit sworn on 2 May 2013, he deposed that, referring to the first sentence of [5] of his previous affidavit, in his mind there was a difference between a car accident involving two vehicles, such as the 2007 accident, and one in which a car hits a person. That affidavit went on to explain that his father took him to see solicitors in respect of the 2003 accident and that a court case was commenced but settled out of court. At no time, in respect to that case, was he informed that there was a time limit to commence cases within three years of the accident.
11. In cross-examination, the plaintiff gave evidence that his father had handled that matter for him, and had "done it all". He knew nothing about the Statement of Claim being filed on 8 April 2005, eleven days before his 19th birthday. The plaintiff conceded that he had one or more meetings with solicitors concerning that matter and that those discussions involved the process of bringing a claim for damages, however, he described those conversations as going to the basics and said he would have had difficulties understanding the process.
12. When asked why he did not see solicitors for advice in respect of the 2007 accident for a period of one and a half years after that accident, the plaintiff said he thought that "it was nothing serious", notwithstanding that he was off work for six months following the accident. When asked whether he thought it would have been wise to see solicitors to obtain an explanation of his rights, he answered "No".
13. The plaintiff was cross-examined in respect of the content of the claim form and the notice contained therein stipulating that that form must be lodged within six months of the accident. The plaintiff said he knew that but he returned the claim form to the insurer almost straight away, which was his habit, i.e. to attend promptly to his affairs.
14. The plaintiff was asked whether he saw Mr Stanoevski, solicitor, between the 2007 accident and April 2009 for other matters, but said "I can't recall". He agreed that he had spoken to Mr Stanoevski on his own and had told him about his accident, but denied that at any time had Mr Stanoevski advised him there was a three year time limit. Nor had he asked Mr Stanoevski about any time limit.
15. Mr Stanoevski had deposed that he could not recall whether he had advised the plaintiff of the three year limitation period for bringing District Court proceedings. He was cross-examined about his practice at the time and agreed that he would explain what was involved in a motor accident claim and that he would probably advise clients that they had three years in which to bring a claim. He could not recall, however, whether he had discussed that with the plaintiff.
16. At the time of swearing his affidavit, Mr Stanoevski had access to his file notes. He could not recall if he did or did not take notes about advising the plaintiff of the time limit.
17. In re-examination, he agreed that in the lengthy chronology of the numerous steps he took to progress the plaintiff's claim, which was annexure A to his affidavit, there was no reference to him providing the plaintiff with advice as to the time limit of three years.

The plaintiff's submissions

1. The plaintiff submitted that by choosing to represent himself and dealing directly with the insurer until April 2009, he acted entirely reasonably. Secondly, once he instructed his former solicitors, there was enough time for them to file a CARS application on his behalf. They had received Dr Bodel's report in late 2009. It was entirely reasonable for the plaintiff to rely on his legal advisers, who gave all appearances of prosecuting his claim. The plaintiff was not to know in those circumstances that it was not being prosecuted competently by those solicitors. In those circumstances, it was reasonable for him to do nothing.
2. In respect of the plaintiff's previous accident, it was submitted that the plaintiff relied on his father to conduct that claim on his behalf. As to his explanation that there was a distinction between pedestrian claims and motor vehicle accidents arising from the collision from two vehicles, that belief provided an explanation and was not clearly wrong.
3. On the question of the plaintiff's knowledge, it was submitted that, based on his evidence, the court would expect him to act reasonably had he had knowledge of the time limits, and that armed with that knowledge, he would have ensured his solicitors adhered to the time limit. He clearly did not have the requisite knowledge.
4. Counsel for the plaintiff submitted that a reasonable person in the position of the plaintiff would have been justified in experiencing the delay incurred here, and therefore the plaintiff's explanation had been full and satisfactory, relying on Smith v Grant [2006] NSWCA 244 per Basten JA (with whom Handley and McColl JJA agreed) at [72]. Further, it is apparent that the former solicitors failed to advise the plaintiff and the court has a complete chronology of the steps that were taken on his behalf and a complete explanation of why steps were not taken, thus his explanation was full and satisfactory, relying on Khoury v Linfox Australia Pty Limited [2006] NSWCA 51 at [21] and [22].

Defendant's submissions

1. The defendant submitted that it was hard to understand why, if the plaintiff intended to pursue his case, he did not act to retain solicitors at an earlier time than April 2009.
2. With respect to Mr Stanoevski, the defendant submitted that his affidavit gave no hint as to why a CARS application was not made before or after the three year time limit had expired. That explanation was provided by Ms Zlatveska in her first affidavit sworn 29 May 2012, in which she suggested that the CARS application could not be made before the plaintiff was able to make an informed decision as to whether to apply for a MAS assessment. The defendant submitted, and it was not contended otherwise by the plaintiff, that that assertion was not correct. The defendant submitted that the plaintiff was entitled to lodge a CARS application two months after the offer made by the insurer. It was submitted that s 91(2)(c) of the MACA permitted the plaintiff to commence proceedings within the three year limitation period if his injuries were not sufficiently recovered to allow them to be quantified. The defendant's outline of submissions referred to the delay between 30 April 2009 and 7 October 2009, when it was arranged for the plaintiff to see Dr Bodel. The defendant submitted that the reason for such a delay was unexplained. Further, Dr Bodel's report of 29 June 2010 assessed the plaintiff's whole person impairment, indicating that his condition was stable enough to lodge a MAS application. There was no explanation provided by the solicitor for the CARS application not being lodged earlier than it was.
3. The defendant referred to the explanation provided by Ms Zlatevska that she hoped the matter would be dealt with at CARS and that the three year limitation period "would not become an issue". The defendant acknowledged the plaintiff's evidence that he was never told about the original application to extend time, and it was his solicitor who suggested that counsel failed to advise that an affidavit from the plaintiff was necessary for that application. Both matters were characterised by the defendant as "surprising". The need to obtain an affidavit from the plaintiff must have been obvious to any lawyer representing him and therefore that part of the explanation was "completely unsatisfactory". It was submitted that the explanation must cover the time period from the date of accident until the date of providing the explanation.
4. Learned senior counsel referred the court to the Court of Appeal's decision in Walker v Howard (2009) 78 NSWLR 161 where the Court of Appeal confirmed that the explanation for the delay must be a full account such that a court is able to evaluate the reasons for delay with all the relevant information that is required. Senior counsel also referred to the Court of Appeal decision in Figliuzzi v Yonan [2005] NSWCA 290, and submitted that the court there held that a reasonable person in the position of the plaintiff would have been concerned enough by the worsening of her symptoms, over a period of five years, that she would have sought legal advice to confirm the view that she could not make a MACA claim. The failure by the claimant in that case to seek advice for nearly five years, was not a delay that a reasonable person would have been justified in experiencing. Thus, it was submitted that the explanation given by the plaintiff here was neither full nor satisfactory.
5. Learned senior counsel further submitted that based on the evidence given in cross-examination by Mr Stanoevski, it was likely the plaintiff was told of the three year limitation period. Given his previous experience, having made a claim relating to the 2003 accident, the plaintiff should have been "knocking down the solicitor's door" to gain advice prior to the expiration of that period on 20 November 2010.

Consideration

1. Section 66(2) of MACA provides a definition of what is a "full and satisfactory explanation" as follows: "66(2) In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have complied with the duty or would have been justified in experiencing the same delay."
2. To be a full explanation, the applicant must provide to the court all the relevant information to enable the court to evaluate the reasons for the delay - see Walker v Howard, supra, per Allsop P at [57].
3. To determine whether the explanation is satisfactory, the court is required to determine whether a person in the position of the claimant would have been justified in experiencing the same delay as the applicant here, and therefore, on an objective standard, whether the applicant's explanation for the delay is satisfactory.
4. I do not accept the defendant's submission that the plaintiff was advised or informed by his former solicitors of the three year limitation period under MACA. I accept the plaintiff's evidence that he was not, and Mr Stanoevski's evidence that he had no recollection of advising the plaintiff, notwithstanding his usual practice, does not make out the defendant's claim. On the contrary, the absence of any objective evidence to the contrary by way of file note or letter setting out such advice, supports the plaintiff's evidence. Further, the fact that those solicitors made an application to the court on the plaintiff's behalf, without informing him or obtaining evidence from him in support of that application is consistent with his lack of knowledge of the limitation period. Nor does the fact that the plaintiff had a claim as a child where proceedings were commenced, assist in making out the defendant's submission. I accept that at the time, the plaintiff had limited English, that his father conducted the proceedings on his behalf, and that he had no knowledge of the court processes, let alone the limitation period.
5. I am satisfied that the explanation provided by the plaintiff, as required by s 66(2) of MACA, has been a full account of his conduct, including his actions, knowledge and belief, from the date of accident until the date of providing the explanation. I am further satisfied that that explanation is complete in the sense required (see Walker v Howard, supra citing Mancini v Thompson [2002] NSWCA 38).
6. I note that there is no criticism of the explanation by the defendant since the matter was taken over by the plaintiff's current solicitors in 2012.
7. The question here is whether the explanation provided by the plaintiff, as set out in his affidavits and those of his prior solicitors and barrister, is satisfactory. This involves an objective test of whether a reasonable person in the plaintiff's position would have been justified in experiencing the delay - see Walker v Howard, supra, at [64], [108] and [134]. In my view, the plaintiff's explanation was satisfactory, for the following reasons.
8. First, it was reasonable for the plaintiff to liaise with the insurer direct until he first consulted Mr Stanoevski in April 2009. The plaintiff completed the claim form himself and returned it promptly to the insurer. The plaintiff did not know how seriously affected he would be by his injuries and the effect that these injuries would have on his capacity to work.
9. Once the plaintiff consulted his former solicitors, it is clear from the chronology of matters attended to by them, that they were progressing his claim by having him examined by medical practitioners and organising an informal settlement conference with the insurer. A reasonable person in the position of the plaintiff would be justified in believing that they were acting in his best interest to prosecute his claim.
10. The defendant's reliance on the Court of Appeal's decision in Figliuzzi v Yonan, supra, is misconceived. In that case, the Court of Appeal's determination that the applicant was not justified in experiencing the relevant delay, was based on her employment with the Legal Aid Commission, her knowledge of solicitors and barristers working in private practice, and her awareness of the purpose of CTP Insurance. The court held that a reasonable person in her position would have sought legal advice about her rights under MACA (per Tobias JA at [97] and per McColl JA at [133]). On that basis it could be reasonably inferred that a reasonable person in the applicant's position would have obtained legal advice which would have disabused her of her erroneous opinion and led her to making a claim within time.
11. Here, the plaintiff was not in that position. He had arrived in Australia in 2001 from Bosnia with no English language. Notwithstanding that a claim had been made on his behalf for injuries suffered by him when he was aged 17, he had no working knowledge of the compulsory third party insurance scheme administered pursuant to the MACA. Once the insurer had made him an offer, he acted reasonably in placing the matter in the hands of a solicitor. Not only did those solicitors act incompetently by not advising him of the limitation period, they concealed that from him by bringing an application before the court on his behalf without informing him that they were doing so, nor relying on evidence from him, when clearly that was required for the application to be successful. The fact that those solicitors relied on counsel's advice to do so, should not lie at the feet of the plaintiff. It was the absence of diligence by the plaintiff's former legal advisers in the prosecution of his claim and the protection of his position which explained the delay from April 2009 until the plaintiff's explanation was provided. In Smith v Grant, supra, Basten JA, (with whom Hanley and McColl JJA agreed), said, in relation to whether the solicitor's failure led to proceedings being instituted out of time affected the question of whether a full and satisfactory explanation for the delay in making a claim, as follows: "58 Hodgson JA made some additional remarks (referring to Blackburn v Allianz Australia Insurance Limited (2004) 61 NSWLR 634) with which Mason P agreed. The first related to Foster AJA's view that the satisfactoriness of the explanation was confined to compliance with the second sentence in the definition. He agreed that in principle it was not, but continued at [54]: 'However, if the delay experienced by the claimant is one which a reasonable person in the position of the claimant would have been justified in experiencing, and if a full explanation for the delay is given by the claimant and the claimant's advisers, I find it difficult to envisage any circumstances in which the explanation would not be considered full and satisfactory. In particular, I do not think unsatisfactory conduct by the legal advisers would have this effect, although of course it could be relevant to whether it is just to grant the extension.' 59 Figliuzzi v Yonan [2005] NSWCA 290 also considered provisions in the 1988 Act. The facts of the case differed significantly from other authorities, in that the delay in question was caused by the failure of the claimant to obtain any legal advice. This was determinative of the outcome, which was adverse to the claimant. McColl JA stated the test, after referring to authority including Russo in the following terms at [128]: 'While the question in each case such as this is whether the claimant has provided an explanation for delay … that question is to be determined by the hyperthetical objective standard invoked by the requirement that the claimant's explanation be tested against the standard of "a reasonable person in the position of the claimant" …' 60 Accordingly, the weight of authority under the 1988 Act in this Court favoured the view that if a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could provide a satisfactory explanation for delay in commencing proceedings. That is consistent also with the approach revealed in Khoury v Linfox Australia Pty Limited [2006] NSWCA 51 at [22] (Beazley J and Tobias JJA agreeing) in relation to the 1999 Act."
12. I find that the plaintiff's conduct, in terms of his explanation for the delay, has been that of a reasonable person in his position. I therefore find that a full and satisfactory explanation has been provided for the delay and therefore the conditions set out in s 109(3) of the MACA are satisfied.

Can a fair trial take place?

1. In The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347, McColl JA said at [96]: "Brisbane South (referring to Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541) is authority for the proposition that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. … "Significant prejudice" means prejudice as would make chances of a fair trial unlikely … For a trial to be fair, it need not be perfect or ideal … "
2. Here, the insurer has not argued prejudice that would prevent a fair trial taking place. There could be no actual prejudice here because the insurer was notified of the claim within one month of the accident and has had the plaintiff medically examined, and otherwise managed his claim since that time. Any presumptive prejudice caused by the effluxion of time here is minimal, particularly given the background circumstances in which this application has been dealt with. In the circumstances, a fair trial can take place in this matter in which the real issues between the parties can be determined.
3. I therefore exercise my discretion to grant leave, nunc pro tunc, to the plaintiff to commence proceedings by filing of the Statement of Claim as filed on 4 May 2012.

Orders

1. I make the following orders: 1. I grant leave to the plaintiff to file the Statement of Claim filed on 4 May 2012 pursuant to s 109 of the Motor Accidents Compensation Act 1999, in respect of the motor vehicle accident on 20 November 2007. 2. I order that the costs of the Summons be the plaintiff's costs in the cause. 3. Stand over for Status Conference before the Judicial Registrar at 9.30am on 4 February 2016. 4. I grant liberty to the parties to apply on seven days' notice if any further order is required as to 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: 10 December 2015