Amor-Smith v Ching

Background

1. The plaintiff was injured at approximately 10.30 pm on 25 August 2011, while riding on her scooter on her way home. She sets out, in paragraphs 3 and 4 of her affidavit, that the last event she remembers is riding in an easterly direction along New South Head Road. Her next recollection is of waking up in "what appeared to be a hospital" (paragraph 4). She remembers little else of her stay there, and states that she was "informed by someone that I was suffering from post-traumatic amnesia" and "bleeding on the brain" (paragraph 5). After surgery on 28 August 2011, the plaintiff was discharged on 2 September 2011.
2. This is one of several different accounts of the plaintiff's accident. The others are: 1. In an Accident Notification Form the plaintiff completed while in hospital in "about late August 2011" (affidavit of the plaintiff, paragraph 6), she drew a plan and gave a description of being hit while turning right into New South Head Road. That diagram and account are set out in Annexure A to the plaintiff's affidavit. 2. On 14 September 2011, the plaintiff made a statement to Sergeant Lehman of Rose Bay Police, in which she said that she was travelling across the intersection of New South Head Road on a green light, but otherwise did not actually recall the accident; she provided this information on the basis that this was what she normally did on her way home (Annexure C to the plaintiff's affidavit). She was told that a blood sample returned a positive reading of 0.093 (mid-range). 3. The plaintiff, who had a long pre-accident history of psychiatrict treatment including hospital admissions, made statements to nine psychologists and psychiatrists treating her for pre-existing problems, from 2011 onwards, to the effect that she had been drinking on the night of the accident, and was trying to commit suicide (Exhibits 1 and 13). There are no reports from psychologists or psychiatrists giving any other version of the events of the night in question. 4. The plaintiff made statements in relation to court proceedings in January 2012, when the plaintiff was sentenced for driving unlicensed, unregistered and with a blood alcohol reading of 0.093 (mid-range) in her system (Exhibit A and Exhibit 1). Importantly, those charges did not reflect any responsibility for the accident. 5. The plaintiff signed a consent judgment "without admission of liability" to settle proceedings (for the full amount) commenced against her by the defendant for motor vehicle property damage in the Local Court, Downing Centre. Those statements included the filing of a defence and the making of written submissions on liability. 6. The plaintiff provided a hand drawn map in a second Motor Accident Personal Injury Claim Form attached to the affidavit of Ms Charleston. The drawing is reasonably similar to the first but the section "description of the accident" (question 16) is left blank (Exhibit B, annexure E). 7. The plaintiff gave evidence in these proceedings as to how the accident occurred. In particular, she denied that she had been attempting to commit suicide (T 144), which is inconsistent with being unable to remember the accident (see 8(a) and 8(b) above).
3. For the purpose of this application, I must assume that the plaintiff is successful on liability. The differing versions of the accident are, however, relevant to the threshold issue (s 109(3) (b) of the Act) in relation to contributory negligence issues: Reeves v Reeves (2002) 36 MVR 488 ("Reeves") at [8]-[14].

The issues for determination

1. The issues for determination are as follows: 1. Full and satisfactory explanation: The plaintiff must give a full and satisfactory explanation for the delay in commencing proceedings (s 109(3)(a) of the Act). The three year period expired on 25 August 2014. 2. Damages over the threshold: The plaintiff must also establish that the heads of damage likely to be awarded are not less than 25% of the maximum amount in respect of non-economic loss (s 109(3)(b) of the Act). This includes any adjustment for contributory negligence: Reeves at [8]-[14]. 3. Estoppel per rem judicatam: A separate issue is whether the consent orders in the Local Court in favour of Mr Ching (the defendant to these proceedings) amount to issue estoppel: Tiufino v Warland (2000) 50 NSWLR 104; Charafeddine v Morgan (2014) 66 MVR 232. The plaintiff relies upon the fact that the consent orders were expressed to be "without admission of liability" and the defendant relies upon the acknowledged fact (plaintiff's outline of submissions, paragraph 16) that the proceedings were settled for the full amount of the claim without any compromise of the claim, which it is submitted renders the terms "without admission of liability" otiose for the purposes of issue estoppel (Isaacs v Ocean Accident & Guarantee Corp Ltd (1958) SR (NSW) 69 at 76 and Ekes v Commonwealth Bank of Australia (2014) 313 ALR 665 at [112]-[114]).

The relevant legislation and time periods

1. Section 109 of the Act provides: "109 Time limitations on commencement of court proceedings (1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after: (a) the date of the motor accident to which the claim relates, or (b) if the claim is made in respect of the death of a person-the date of death, except with the leave of the court in which the proceedings are to be taken. (2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued. (3) The leave of the court must not be granted unless: (a) the claimant provides a full and satisfactory explanation to the court for the delay, and (b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident. (4) Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity. (5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim."
2. As noted above, the three-year period from the date of the accident (25 August 2011) expired on 25 August 2014. On 3 November 2014 a CARS 1A Application for Exemption was filed, which exemption was granted on 28 November 2014; time then resumed running from 28 August 2015.
3. Most of the hearing time was spent in determination of the question of whether the plaintiff could exceed the 25% threshold set out in s 109(3)(b) of the Act. The relevant maximum amount set by the Motor Accidents Compensation (Determination of Loss) Amendment Order 2010 is $432,000. That means that the plaintiff must, in addition to providing a full and satisfactory explanation, satisfy the court that the damages awarded for her injuries and disabilities (including past and future economic loss and out of pockets, and subject to any adjustment for contributory negligence) are likely to be not less than $108,000.

The plaintiff's evidence

1. The plaintiff's explanation for her delay in commencing proceedings may be generally stated as being due to memory difficulties relating to head injuries sustained in the accident and to subsequent physical disabilities, as well as the impact of these disabilities upon her long pre-accident history of psychiatric problems. She was re-admitted to hospital in relation to those problems, as well as for the removal of the screw in her right ankle, on 6 December 2011, and on a series of occasions in 2012.
2. Although the plaintiff now acknowledges that she completed an Accident Notification Form in August 2011 and received a letter from CIC Allianz on or about 15 September 2011 denying provisional liability for the CTP claim, she has no recollection of these events. When she consulted her current solicitors in July 2014, her evidence is that she had forgotten about having done so, which is why she filled in a fresh claim form.
3. In January 2012, the plaintiff attended court in relation to charges arising from driving while unlicensed and unregistered and driving with the prescribed concentration of alcohol. She was fined and disqualified from driving for 12 months. As already noted, she was not charged with any offences in relation to the incident itself, and she did not consult lawyers about these matters.
4. Mr Ching, the defendant in these proceedings, brought proceedings for motor vehicle property damage in 2012, which are outlined in more detail below. The plaintiff says she did not seek legal advice about this claim either, although she had some help from the duty solicitor on the day of the hearing.
5. The plaintiff obtained full time work in about February 2012, although she told the court she was in considerable pain and taking medication over this period. She continued to see psychiatrists and psychologists over this whole period and discussed the accident with them, but challenges their accounts of her having caused the accident because she was trying to commit suicide.
6. The plaintiff was, however, sufficiently aware of her personal injury entitlements, in or about May 2012, to make telephone calls to "several firms of lawyers" (affidavit of 5 November 2015, paragraph 29) about her entitlement to commence proceedings for personal injury. She was told each time that a minimum security deposit of $10,000 would be necessary for any of these legal firms to act for her. She does not recall any of those firms giving her advice about submitting a claim form within six months.
7. Ms Charleston, in her affidavit of 31 August 2015, deposes to having been given two unopened letters sent to the plaintiff by Slater & Gordon, solicitors when the plaintiff first consulted her (Exhibit B). Slater & Gordon had sent the plaintiff a series of letters, two of which she failed to open, and which were opened by Ms Charleston.
8. The first of these confirmed an appointment date of 30 October 2012 (Annexure A to Ms Charleston's affidavit) and requested her to bring all relevant documents. The second of these unopened letters clearly follows a missing letter dated 30 October 2012 concerning the plaintiff's missed appointment for that day, the contents of which are set out in more detail below. The contents of this unopened letter noted that the plaintiff had not contacted the writer for a fresh appointment and went on to say: "For the sake of completeness I now repeat the time limits prescribed by the Motor Accidents Compensation Act. These time limits are: If the Police did not attend, the motor accident must be reported to the Police within 28 days of the Accident. An Accident Notification Form must be lodged with the Compulsory Third Party Insurer of the vehicle that caused the accident within 28 days of the accident. A Personal Injury Claim Form must be lodged with the Third Party Insurer of the vehicle that caused the accident within 6 months of the accident. Court proceedings (if relevant) must be commenced within 3 years of the accident. If you fail to comply with these time limits, you may be prevented from making or continuing with a claim for compensation unless you can provide a full and satisfactory explanation for the delay. If you do not commence court proceedings within 3 years there is an additional requirement to show that your compensation exceeds a monetary threshold."
9. At the time the plaintiff consulted Slater & Gordon, the only outstanding steps were, in fact, the last two, as the plaintiff had already advised Slater & Gordon she had filled out a claim form (see the text of the Slater & Gordon internal email below). The plaintiff claims she was never on notice as to the time limits because she never opened these letters, but the evidence is against this.
10. First, although she never made a fresh appointment with Slater & Gordon, she had already filled out a notification form while still in hospital in August 2011, and went on to submit a motor accident personal injury claim form to CIC Allianz on 14 November 2012, some nine months after the applicable time limit (although the plaintiff states, at paragraph 39 of her affidavit, that she "cannot remember" doing so) and received the denial of liability sent on 24 November 2012.
11. Second, it is clear from the wording of this letter that Slater & Gordon were not telling her this information for the first time, but repeating it, and doing so in circumstances where the plaintiff was warned, by the opening words of the letter, that its author would not take any action to protect her interests. The plaintiff's claim that she did not open this letter must be seen in the light of her overall knowledge as revealed from these other sources of information available to her.
12. Third, the plaintiff had received a letter from CIC Allianz in or about 15 September 2011 denying provisional liability due to "conflicting versions" of the accident and advising her to submit a Personal Injury Claim Form (paragraph 12 of the plaintiff's affidavit), which the insurance company sent to her. The contents of that letter and its warnings (which she did open, and must be taken to have read) were clear.
13. The documents produced by Slater & Gordon in answer to a subpoena for their file are set out at Tab 7 of Exhibit 1. The internal emails between staff confirm that the plaintiff was booked in for a two-hour conference on 30 October 2012 but cancelled due to bronchitis; an appointment was rescheduled for 1 November 2012 at 2 pm. Both meetings were given a two-hour estimate, and were clearly intended to cover many matters. The plaintiff acknowledged this new appointment date and "wanted you to know that she has gone through her file and she did lodge a claim with the CTP insurer" (Exhibit 1 p. 330). She was sent another letter about this conference and told to bring copies of all claim forms. The second letter is on page 333 of Exhibit 1. She did not attend this second appointment, without giving any explanation, and it was in this context that the second unopened letter, the contents of which are set out above, was sent.
14. Another inconsistency between the plaintiff's evidence and these documents is that they do not refer to any request to the plaintiff for money to be paid for this meeting to take place. There are obligations upon solicitors under the Legal Profession Act 2004 (NSW) to provide fee agreements and information about the terms of retainer. The documents show that the plaintiff was being offered a two-hour meeting to discuss her claim. While I am prepared to accept that general statements were made about the payment of disbursements, there was nothing in the correspondence or emails to suggest that this was a prerequisite for the meeting,
15. The plaintiff was also on notice of there being a claim by the defendant for motor vehicle property damage at this time, as she was served with his statement of claim in June 2012. The plaintiff attended the Local Court, obtained an adjournment without legal representation and, on or about 10 August 2012, filed a defence denying liability. These proceedings were on foot at a time when she was consulting Slater & Gordon.
16. In March 2013, the defendant's property damage proceedings were listed for hearing. The plaintiff appeared for herself, although she received some assistance from the court-appointed solicitor at the Local Court in relation to the consent orders. Those events are set out in more detail below in the section of this judgment in relation to issue estoppel. She acknowledged in cross-examination that she had some assistance from a family member in relation to the drafting of documents for those proceedings.
17. The plaintiff's affidavit is silent as to what she was doing, in relation to her activities generally, between 5 April 2013, the date she signed the Consent Orders in relation to Mr Ching's property damage claim, and June 2014. That is a significant gap.
18. In June 2014, while in hospital for a tonsillectomy, the plaintiff was told by a friend to consult a lawyer about her injuries, as there was a three-year time limit for the bringing of court proceedings in relation to her claim. The plaintiff also, at this time, spoke to her father, a former barrister, who "encouraged me to consider the possibility of a personal injury claim" (affidavit of 5 November 2015, paragraph 43). On 1 July 2014, the plaintiff contacted Ms Charleston, her solicitor in this application. She also applied to the NSW Police under the Government Information (Public Access) Act 2009 (NSW) for police records on or about 4 July 2014. She provided a number of documents to Ms Charleston during July 2014 and made enquiries about any photographs of the scene of the accident.
19. It is unclear what steps the plaintiff took between October 2014 and 11 February 2015, but I note that on 3 November 2014 a CARS 1A application for exemption was filed which stayed the running of time; a certificate was granted on 28 November 2014. This meant that the time resumed running from 28 January 2015. On 11 February 2015, the plaintiff provided the statutory declaration in relation to the delay in lodging the claim form as required under s 73 of the Act. The Summons was not filed until 31 August 2015, and the affidavit of Ms Charleston sworn 31 August 2015 sets out the background to this further period of delay.
20. As the plaintiff's must satisfy the threshold test under s 109(3)(b) as well as demonstrate a full and satisfactory explanation, and her explanation for delay is the poor state of her mental and physical health, I shall deal with the threshold issue first.

Section 109(3)(b): the threshold issue

1. The manner in which the court undertakes the determination of whether the plaintiff is "likely" to reach the threshold is set out in Dijakovic v Perez (2015) 71 MVR 334 ("Dijakovic v Perez") at [109] as follows: "It is well established that the term "likely" in s 109(3)(b) means a "real chance" or a "real prospect": Sinclair v Darwich (2010) 77 NSWLR 166 ; 56 MVR 116 ; [2010] NSWCA 195 at [36]; Eadesat [10]. As Basten JA explained in Eades, the relevant shade of meaning of "likely" in the present context is conveyed by "the notion of a substantial, as distinct from a remote chance": Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 ; 87 ALR 412 at 418 per Mason CJ.
2. The threshold issue should be approached by taking the plaintiff's medical evidence at its highest: Dijakovic v Perez at [120]. That is something of a problem here, as the plaintiff does not produce any medico-legal reports or treating reports relating the circumstances of her accident to her injuries and current disabilities.

Non-economic loss

1. The plaintiff's submission is that prior to her accident her "general state of health" was "very good" (affidavit, paragraph 67). Following the accident, she claims she has been left with significant residual disability and loss of earning capacity.
2. The plaintiff's disabilities are set out at paragraphs 73, 74 and 80 as follows: "73. The accident has left me with ongoing physical and psychological disabilities. I have cognitive problems from the head injury, including difficulties with memory and concentration. I also feel that my pre-existing eating disorder has been aggravated by the accident. The orthopaedic surgeon inserted metallic structures into the ankle. I have difficulty with prolonged weight-bearing, both in standing and walking. I am no longer able to run or wear high heels for more than about ten steps. This is due to pain and stiffness in my right foot and ankle. The inability to wear high heels hampers me in my corporate presentation as it restricts the range of suitable corporate clothing I can wear. Pain in the foot and ankle also keeps me awake at nights, especially after long days at work. 74. I have disfigurement of the right ankle and foot caused by unsightly scarring and discolouration. This is embarrassing to me and deters me from wearing revealing footwear or going barefoot in front of people. This is a problem during the summer months when enclosed footwear is uncomfortable and unfashionable. I cannot wear certain types of footwear because of this. Certain types of footwear rub against the scarring and cause discomfort and abrasions. … 80. I have been feeling more physical pain in my back, legs and ankle since I started work at Benchmark Media. As a result, this has aggravated my depression. I do not cope well with pressure anymore. I feel a sense of failure. In about early June 2015 I was placed on the maximum dose of anti-depressant and anti-anxiety medication. I am heavily medicated and I often do not have clarity of thought or expression. The medication slows down my mental processes and I have to check and re-check my work. It also affects my memory and concentration. I made solid and honest attempts to sustain the employment, but on 29 September 2015 I eventually had to resign from my position at Benchmark Media due to extreme stress, depression and anxiety."
3. As the plaintiff had tendered no medical evidence in support of her claims of injury and ongoing disabilities, I made the following inquiry: "HER HONOUR: Mr Thompson, you haven't tendered any medical reports in support of this application, have you? THOMPSON: That's correct, your Honour. HER HONOUR: You're not going to, are you? THOMPSON: That's correct, your Honour." (T 144)
4. Over Mr Renshaw's objections, I gave the plaintiff a short adjournment to enable Ms Charleston to answer Mr Renshaw's calls for medical reports supporting the plaintiff's claim in relation to injuries and disabilities. None were forthcoming, although a treating report from Professor Russell, with some comments about her state of mind generally in 2013, was provided. A report from Dr Symboluk on this issue was also produced, and was later tendered by the defendant (Exhibit 13).
5. The disabilities the plaintiff sets out in her affidavit fall into two main categories, namely ongoing problems with the right ankle and foot as well as cognitive problems.

Disability and disfigurement of the right ankle and foot

1. The plaintiff's evidence concerning ankle and foot restrictions, pain, scarring and other disabilities was tested in cross-examination as follows: 1. The plaintiff's claim that she was unable to run after the accident is inconsistent with her having entered a series of half-marathons and mini-marathons, in her own name (such as the Sydney Morning Herald Half Marathon in 2015, where she finished in just under two hours - Exhibits 3, 5 and 8) and under the name "Genevieve Rothschild" in the 2014 Sri Chinmoy Centennial Park Half-Marathon (running 10.35 kilometres in 54.33 minutes - Exhibits 9 and 11). There are photographs on social media (including posts on the Genevieve Rothschild social media accounts) clearly showing her running in the second event, and wearing the number allocated to her. She also posted reports for a run of 10.51 kilometres in Victoria (in 49.58 minutes) in November 2014, a run in the Eastern suburbs of Sydney of 21.08 kilometres in 2.11 hours in September 2014, a run of 26.15 kilometres in 2.38 hours in August 2014 and two other runs of 40.01 and 30.04 kilometres over the same track for the same month on her Instagram account, but said she did not participate in these runs, and merely posted the results of others (Exhibit 11). The plaintiff's inconsistent answers, followed by a reluctant admission that she had run in some of these marathons, was a significant blow to her credit, as was her lack of frankness about the use of other names in social media. 2. Although the plaintiff says she is unable to wear high heels, she has posted several photographs of herself wearing high heels on social media, such as the photograph on the third page of Exhibit 11. 3. The plaintiff regularly posted photographs of her feet onto an Instagram account she operated under the name "Genevieve Rothschild" (Exhibit 3 sets out ten of these photographs and there are many more in the three volumes of exhibits attached to Exhibit 1). None of these photographs display any evidence of unsightly scarring or discolouration, let alone the embarrassment the plaintiff refers to in paragraph 74 of her affidavit. 4. The plaintiff's social media accounts show her leading a very physically active social life, travelling overseas several times a year and participating in horse breeding and riding (Exhibit 1 pp1049 - 1052, 1079, 1090 - 1). Photographs of the 6.15 am spin cycle class advertisement, and of herself in gym clothing and working out with weights (Exhibit 1 pp 1066, 1077), as well as frequent references to athletic training and outdoor activities such as boating and swimming undermine her claims of being reluctant to bare her feet publicly or engage in activities of a physically strenuous nature.
2. The plaintiff initially denied that she had participated in any marathons and said that she had posted marathon entries by other persons with whom she shared social media. After the plaintiff was shown photographs of herself wearing the marathon number and running on the field or at the finish line in two events, she retracted some of these statements: "A. No, I did not make these runs. These are screen-shotted images shared through social media and channels I have. Q. So when Geraldine Rothschild utters words that seem to suggest that she made those runs who is making that representation, if not you? A. Well, it's a representation that I've posted about but it's not me performing the run. There's these re-posting apps and lots of different accounts for mindfulness and travel and my dog's got an Instagram account. Q. Look at page - the one with the 40 kilometres. "Distance day done." This is Genevieve Rothschild. "Distance day done. Reached the peak. All downhill from here. She smashed the 30 - 21 - 30 and 36 personal best." A. Yes, she - one of my girlfriends was preparing for the Sydney Marathon and that was a screen shot off her phone of the course she did. I think it was about two years ago. She was training for it. Q. Well, go to the next page where it's got "Genevieve Rothschild under the hammer 30 in sub 2 hours 50 distance done. Now study. Then get ready for tonight." A. ..(not transcribable).. Q. Are you seriously saying that you did not make that representation? A. The one of the 40 kilometre one, no, I - " (T 26).
3. The plaintiff also denied that she ran in the Herald marathon: "Q. I want you to be very careful about this because there have been a series of answers that you've given where you have categorically denied that you have been running. Do you say that you have never run since this accident? A. No, I wouldn't say I've never run. Q. Have you ever run in a marathon or half-marathon? A. No, I had teams of friends who were doing fundraising for it. Q. You've never been a candidate? A. No. Q. Bit unfortunate that your e-ticket entry confirmation for 2014 Sydney Morning Herald Half-Marathon, name Genevieve Amor-Smith. Have a look at that. … Q. What was the number in the marathon that you had supposedly? A. What was the what, sorry? Q. You see, here's a photograph of you third down from the right with the - something attached to your jumper as a contender in a long distance run, isn't it? We can magnify it, don't worry about that. A. Yeah, you're going to have to. Q. What was the number in the marathon that you had supposedly? A. What was the what, sorry? Q. You see, here's a photograph of you third down from the right with the - something attached to your jumper as a contender in a long distance run, isn't it? We can magnify it, don't worry about that. A. Yeah, you're going to have to. … Q. You obviously entered the 2014 Sydney Morning Herald part marathon, did you? A. Yeah, from the e-ticket. Q. But you say you didn't run it? A. No: not possible. I thought I could. I thought if I push on and be able to run and look after my legs that it would work, but the ankle was just not holding up. … Q. That's you is it not? A. Yeah, that's me in a photo in exercise gear. Q. Being photographed coming across the line? Why else would you be photographed? A. That's not coming across a line, because people are walking in all different directions. Q. You are being photographed in finishing a race, aren't you? A. No, that was not the finish. Q. What is it then that is depicted? A. That was not the finish of the race. (T 28 - 31)
4. The plaintiff eventually conceded that she had run in this race, but claimed she had cheated in order to finish it in the under-2-hour time given for her run time. Mr Renshaw asked her: "Q. You never said yesterday that you in fact cheated and didn't complete it, did you? A. You cut me off a lot yesterday. You never let me get a word in. Q. Why don't you answer the question? You never said that, did you? A. No, I didn't say that." (T 103)
5. The plaintiff also sought to explain her appearance in another race as an example of identity theft: "Q. Yes, well, no, you've proposed this to her Honour as a feasible alternative. What possible advantage could any sane person get out of doing this? A. People might run under different names for all sorts of reasons. Q. No, but a sane person. So you're suggesting that someone would just adopt your name and run a half-marathon, and in fact two of them, within a couple of months, at much the same time? A. People can change - if they want to put whatever name they want to register in a charity event or a running event they can put whatever name up they want and if they want to be in a certain of class of runners then put a class of runner or a name of a runner who is in that class. It's the same as the water polo teams I used to be in." (T 56)
6. The plaintiff eventually conceded she had run when shown a photograph of herself competing, wearing athletic clothing and a large race entry number.
7. I have set out this evidence in some detail because it confirms that the plaintiff has made a complete recovery from her fracture and is in the peak of physical health.

The plaintiff's fracture to her scapula

1. This injury was treated conservatively. I received no submissions as to any impact on the plaintiff's health caused by it.

Cognitive difficulties and brain injury

1. The plaintiff's claim for injury to her ankle is based on there being concrete evidence of an ankle injury. There are no hospital records (T 78 - 79) or medical reports to support any claim that the plaintiff had bleeding on the brain, amnesia, or cognitive difficulties of any kind following the accident. A CT scan of the brain showed normal results (T 116).
2. There is a statement in the Police Facts that she suffered fractures to her right foot, ankle and shoulder and "mild bleeding within the skull" (Full Facts, page 2, Exhibit A), but the medical certificate from the hospital refers only to the fractured right ankle and left scapula (Expert Certificate, Exhibit A, page 1). As previously noted, there is a reference to "intracerebral contusion" in the medical certificate of Dr Simon Tan of 6 September 2011, but there is no reference to any symptoms or treatment. Nor is there any reference in any of the psychiatric treatment records that the plaintiff suffered from, or was being treated for, any such injury or ongoing disability.
3. Contrary to the plaintiff's claim that she enjoyed good health generally before the accident, her medical history is replete with evidence of psychiatric referrals, which in turn indicate alcohol, bulimia and psychiatric problems requiring not only treatment but hospital admissions, particularly in the six months prior to the accident. Dr Symboluk (Exhibit 13) notes that the plaintiff attended psychiatry sessions drunk in December 2010 - January 2011 and attempted suicide on Christmas Eve and again on two occasions in early 2011, including admissions to hospital. Her scores for depression in May 2011 were in the "extremely severe" range and, in June 2011, she was hospitalised for three days. It was in this context, Dr Symboluk noted, when she resumed therapy in January 2012, that the plaintiff had attempted to take her life by driving her scooter into a car, this being a description of the accident the subject of these proceedings.
4. The defendant tendered eight other medical records (Exhibits 1 and 13) which consistently note the plaintiff as having described the accident as a suicide attempt.
5. The plaintiff initially denied ever giving such an explanation (T 22) and then explained these entries inconsistently as being "untrue" (in the case of Dr Symboluk) and for the purpose of obtaining urgent admission to hospital which she would not otherwise have received, or that the doctors had told her to say this (T 40 - 50). I do not accept that evidence. The plaintiff's statements were volunteered separately, not repeated from one doctor to another, in circumstances where the plaintiff needed no further embellishment of her problems to be admitted to hospital or to receive psychiatric treatment.
6. The absence of any medical evidence to support the plaintiff's claim mean that she could not establish any cognitive difficulties or head injury of any kind referable to the motor vehicle accident.
7. As to psychiatric issues, the plaintiff had essentially the same pattern of psychiatric admission after the accident as before. Any change in this pattern is so slight that it cannot be detected.

Conclusions concerning non-economic loss

1. The plaintiff suffered a fracture of the ankle which required surgery and the insertion of a pin. The scapula fracture was treated conservatively and beyond this I have no further information. No injury to the brain beyond some form of bruising (untreated) is evident. She was away from work for about 22 weeks, but much of this is due to her pre-existing psychiatric problems, which I am satisfied were not worsened by the accident, there being no evidence to the contrary (T 159).
2. On the night of the accident she had been at the gym running 10-15 kilometres, according to her statement to police. The plaintiff made such a good recovery from her accident that she is able to compete in marathons. Her physical health is excellent and there are no photographs to show scarring or unsightliness.
3. The plaintiff would, in my view of the evidence, be awarded damages in the very low range for an ankle injury from which she has made a complete recovery. It is hard to put a figure on this without the benefit of at least some medical evidence as to the nature and extent of the plaintiff's injury and disabilities, or an agreement of the kind which occurred in Dijakovic v Perez, (where the parties agreed that non-economic loss was $97,000, and where there had were reports, albeit later set aside, by CARS). Mr Renshaw submits, and I agree, that in the absence of medical evidence in relation to any claim for ongoing disabilities, I should not make any allowance for non-economic loss.
4. The plaintiff would also make a claim for past and future loss of earning capacity.

Past and future loss of earning capacity

1. The plaintiff's submissions were that she suffered significant loss of earning capacity which has the capacity to affect her work, and will continue to do so (T 159). Prior to the accident the plaintiff described herself as having "a full and effective working life" and that she intended "to continue to build a career in the hospitality industry" (affidavit, paragraph 67). As a result of her accident she was unable to resume her studies at Swinburne University until 2014.
2. There is a concession by the defendant that the plaintiff can establish past economic loss in relation to the period of time when she was unable to work, namely 22 weeks. The defendant's submissions were that the plaintiff's net weekly earnings are uncertain, as what little information there is about past earnings suggests the figure of about $700 per week, resulting in a maximum of $15,400. No specific figure to the contrary was put by Mr Thompson, so I accept this as correct.
3. This brings me to the question of what the plaintiff's working history was, both before and after the accident. The plaintiff describes herself on her Instagram account as "globetrotter, dressage rider, CMO, student, philanthropist" (Exhibit 3). The plaintiff does in fact hold positions in which some of these are described as her occupations.
4. The plaintiff's work history prior to the accident is sketchy, and she conceded that she has in fact earned more every year since the accident, although she said she was no longer earning tips in the hospitality industry (T 129). The plaintiff also had unpaid work as the founder of a charity in Kenya, which she runs under the name of "Genevieve Audrey". She describes herself on the website as follows: "Genevieve Audrey B Psych (Swin) Dip F P; Dip F S, Founder and CEO Our founder and CEO, Genevieve is …currently studying full-time at a university in Australia, while also working. Her experience is in marketing sales, media publications, financial services and law. She manages the Foundation in Australia and Kenya, connecting with the team every evening and returns to Nairobi as often as possible" (Exhibit 1, page 1179)
5. A photograph of the plaintiff appears beside this statement. She is also described as providing marketing, media, advertising and financial assistance on a permanent basis.
6. The plaintiff's activities for this foundation are relevant for two reasons. The first is that it is an organisation with DGR status she is helping to fund and run, and her wish to do so is relevant when considering her future economic loss: "Q. How is it funded? A. It's been funded by some of the commissions I was earning and some local donations. Q. So it's funded from your income? A. Little bits of my income. I've put about $10,000 in two years into it, and also from donations from external sources into the trust account, as it has DGR status." (T 129)
7. The second reason is that the plaintiff's activities in Kenya cast doubt on the plaintiff's evidence in that, although the social media documents describe her current status differently, she is not unemployed due to mental illness: "Q. How much of your time do you spend in Kenya? A. I've spent probably about ten weeks there in total in the last two years. Q. What's your current employment? A. I'm not employed. Q. When did you cease to be employed? A. I ceased employment at the end of last year due to mental health reasons. Q. Unrelated to this accident? A. Related to this accident. Q. Where's the medical evidence of that? A. There is countless documentation - " (T 130)
8. Mr Renshaw called for these reports on a number of occasions during these proceedings: "RENSHAW: The constant answer, contrary to due forensic process in these courts, has been that, in respect of documents, they're not here. This situation impedes the proper administration of justice and the conduct of cross‑examination, and I ask that your Honour make the peremptory order that, if such a document doesn't exist, it be frankly stated by my learned friend that it doesn't. HER HONOUR: Yes. Mr Thompson, what do you say to that? THOMPSON: Putting aside the humorous and bombastic comments my friend has made, my friend has not made a legitimate call. He has called for the documents that relate to incapacity or disability, words to that effect. He's put no time frame on it. Presumably we're required to go back to the year dot. Perhaps my friend can frame his request in more precise terms and I'll endeavour to get instructions." (T 131)
9. Mr Renshaw then asked the plaintiff if she had in fact resigned from her positions in Australia in order to spend more time in Kenya: "Q. In your post on Facebook, time line dated 22 December 2015, you state - this is in the affidavit, not cross‑examined on by my instructing solicitor, at paragraph 38, "Home time!!! Tell the girls, as I said, I don't make promises I can't keep. So, as promised, I quit my job, and..(not transcribable)..had the baby..(not transcribable)..and I'll be home just in time for Christmas, 23 hours and counting." So you've quit your job? A. I had to quit my job. Q. Well, the context in that posting is that because of a promise you made, you quit your job? A. I was already going to quit my job. I quit my job back in September, and for the benefit of my clients at that company, I stayed until December."
10. The first report produced in answer to this call (that of a psychiatrist, Dr Mark Ryan, dated 3 October 2011 - T 135) was of no assistance, as it was prepared less than two months after the plaintiff's accident. A report of 8 June 2012 from Dr Symboluk, who treated the plaintiff until mid-2012, was similarly of little assistance, although it did record the plaintiff telling her she "attempted to take her life by driving her scooter into a car, which resulted in her being hospitalised and having several surgeries on her ankle, and court appearances", a statement the plaintiff said was "untrue" (Exhibit 13, T 143).
11. The plaintiff's claim that the accident had impeded her scholastic career was also difficult to maintain, given the uncertainty as to the qualifications she held herself out as either having or studying towards. The plaintiff acknowledged she did not have the qualifications that "Genevieve Audrey" held herself out as having in the website extract set out above: "Q. You don't have any academic qualifications at all, do you? A. I haven't finished the‑‑ Q. You haven't got any academic qualifications at all, have you? A. No. Q. Any representation by you is dishonest, isn't it, that you do have them? A. I have my Diploma of Mortgage Broking and Financial Planning, and I am currently studying a Bachelor of Psychology, but I am yet to complete it." (T 136)
12. She also acknowledged, after first saying she did not recall it, that she had been excluded from the Solicitors Admissions Board (T 124 - 6). This also appears to be unrelated to the accident.
13. The plaintiff has, from this evidence, made a complete recovery from her injuries. She is physically very fit and her pre-existing psychiatric problems appear to be continuing as before. There is no medical evidence to suggest to the contrary. No claim for future economic loss can be made out.

Out of pocket expenses

1. I have very little information about the plaintiff's past out of pocket expenses and none at all about what her future expenses would be. If I assume a reasonable figure for her hospitalisation, operation and subsequent medication, it would be a general guess only. It would have been helpful if I had been given a schedule. A figure of about $10,000 would be reasonable.
2. The plaintiff has, in my view, no claim for future out of pocket expenses. There is no evidence in relation to ongoing medication. Her treatment, about which I have no details, relates to her pre-existing psychiatric problems.

Contributory negligence

1. When determining the threshold on an application for extension of time, a consideration of matters relating to contributory negligence is relevant: Reeves at [16]; Eades v Gunestepe [2012] NSWCA 204 ("Eades"). The correct approach does not, however, require the judge hearing the application to determine a percentage. In Eades, Hoeben JA defined the task as determining whether there was a "real and not remote chance or possibility" of contributory negligence as set out in Eades at [41] - [45].
2. Mr Thompson submits (written outline, paragraphs 12 - 13) that the principle in Reeves does not operate in circumstances where there is a blanket denial of liability on the basis that the plaintiff deliberately caused the accident, as such a finding can only operate to bar the plaintiff's success on her claim. The court is required to operate on the assumption that the claim succeeds (s 109(3)(b) of the Act).
3. I do not accept that the "suicide" evidence should be wholly discounted for such a reason. There is frequently a "clear conflict" (Eades at [38]) of evidence as to the circumstances of an accident relating not simply to liability but also (and this is the sole basis for considering it here) on the basis of contributory negligence. Other evidence relevant to contributory negligence, such as the plaintiff's level of intoxication, may also be taken into account.
4. Any discount for contributory negligence would be high, as the plaintiff was riding a scooter late at night, affected by alcohol, in circumstances where the defendant said he was unable to see her. If the defendant were found liable and the trial judge was satisfied that the plaintiff was indeed trying to kill herself, the contributory negligence component would be very substantial; Mr Renshaw submitted it could amount to 100%.

Other issues

1. As the exercise under s 109 requires me to assume that the plaintiff will be successful in relation to liability issues, it is not appropriate for me to determine issues of credibility. Any statements I have made as to any inconsistency between the plaintiff's evidence and contemporaneous evidence should be read in this light.

Conclusions concerning the s 109(3)(b) threshold

1. I am satisfied that the plaintiff would be awarded only a sum of under $20,000 for past economic loss. I cannot see that she would be awarded even a cushion for future economic loss given her sporting prowess. The amount she would be awarded for past out of pockets would be in the region of $10,000.
2. Even if these sums had been significantly larger, and an award made for non-economic loss, the very significant percentage which would be likely to be awarded for contributory negligence would make it impossible for the plaintiff to reach the threshold.
3. Having noted these findings I next consider whether the plaintiff has provided a full and satisfactory explanation.

A "full" explanation

1. The correct approach to take to whether an explanation is "full" is summarised in Dijakovic v Perez at [15] - [17]: "[15] An explanation is "full and satisfactory" within s 66(2) if it satisfies two requirements. These were explained by Meagher JA (Basten JA and Simpson J agreeing) in Karambelas v Zaknic (No 2) (2014) 69 MVR 127; [2014] NSWCA 433 at [16] (Karambelas). [16] First, it must include 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". In the case of late proceedings under s 109(1) that is the date on which the explanation is first provided. Here, Mr Dijakovic's explanation comprised a combination of affidavit evidence and his oral evidence before the primary judge. Thus he had to explain the period between 21 October 2009 and 30 May 2014. [17] The purpose of the requirement that the explanation be full, and the necessity to set out fully "the conduct, including the actions, knowledge and belief of the claimant", is so that the court can evaluate all of the reasons for the delay and decide whether they are full and satisfactory: Mancini v Thompson [2002] NSWCA 38 at [46]. (Mancini). It is for this reason that it has been said that the applicant for leave cannot "pick and choose" the information to be given relevant to the delay and which the court has to decide is "satisfactory": Mancini at [46]."
2. The plaintiff's explanation is not full, particularly in relation to the following: 1. The plaintiff's generalised position is that she has a long history of pre-accident and psychological disorder and the reasonableness of her inaction must, as was the case in Dijakovic v Perez, be viewed accordingly. However, I am satisfied that the plaintiff was aware of the time limits in personal injury proceedings in a general way by reason of her statement to Slater & Gordon that she "did lodge a claim form with the CTP insurer" (Exhibit 1 p. 331) and that the plaintiff has not given a full description of her conduct, knowledge and belief in this regard. 2. The plaintiff does not provide, in her affidavit, any account at all of her actions, knowledge or belief for the period March 2013 to June 2014, or any explanation beyond her psychiatric problems, for the period.
3. Mr Thompson (written submissions, paragraph 9) points to the report of Professor Janice Russell of 4 June 2013 which states that the plaintiff's employment abilities and stability are "severely disrupted" for "the foreseeable future", but does not address the issue of how this interacts with her ability to bring a claim for damages. Nor does this report absolve the plaintiff of the obligation to provide a description of her conduct, knowledge or belief as to her entitlements, particularly since it is clear she was aware in 2012 she had lodged a CTP claim form. Professor Russell's report, and the plaintiff's history of requiring psychiatric assistance, do not provide a basis for a "full" explanation for the plaintiff's failure to seek help from the many skilled professionals offering her assistance in dealing with her problems. The question of what a reasonable person in the plaintiff's position would do is simply not addressed at all.
4. While I accept that there is a "full" explanation for the period after which Ms Charleston was retained (1 July 2014), in that the plaintiff was seeking legal advice, the failure to provide any explanation for the period before that, beyond a generalised claim of the plaintiff being psychiatrically incapable of taking the necessary steps (unsupported by either information or medical evidence) cannot amount to a "full" explanation.

A "satisfactory" explanation

1. What is the standard by which the satisfactoriness of the plaintiff's explanation must be assessed? In Lyu v Jeon [2012] NSWCA 446 at [22] - [25], Meagher JA explained the requirement for the explanation to be "satisfactory" in circumstances where, as is the case here, it is not easy to determine the extent to which the characteristics of the person in question are to be attributed to the "reasonable person": "[22] In Diaz v Truong, Giles JA said (at [42]) of the equivalent provision in s 40(2) of the Motor Accident Act 1988: The standard of a reasonable person in the position of the claimant failing to comply with a duty is understandable. The standard of a reasonable person in the position of the claimant being "justified in experiencing" a delay is more obscure. Experiencing something normally means being subjected to it, the object of acts or omissions by another or others. What is meant by being justified in experiencing a delay? It must mean that the reasonable person in the position of the claimant would have been subjected to the delay and the subjection to the delay would have been justified. The hypothetical experiencing of delay must have the quality of a justified experiencing of delay. That elucidation of what being "justified in experiencing" a delay means is not controversial: see Russo v Aiello [2003] HCA 53 ; 215 CLR 643 at [7], [73]; Buller v Black [2003] NSWCA 45 ; 56 NSWLR 425at [46], [94], [100]; Walker v Howard esp at [96]-[97], [101]-[102]. [23] As Allsop P explained in Walker v Howard (esp at [64], [68], [69], [90], [97]), the test so expressed is a construct for the making of the evaluative judgment or assessment as to whether, given the claimant's position, the delay which occurred was reasonably justifiable; that question to be answered by asking whether a reasonable person in the claimant's position would have experienced that delay. It requires that characteristics and circumstances of the claimant be taken into account when applying the objective standard. In some cases it will not be easy to determine the extent to which the characteristics of the person in question are to be attributed to the "reasonable person" because those characteristics may not sit comfortably with the notion of the "reasonable person". The present is not such a case. [24] Two further matters are, however, relevant in the present context. First, as Gleeson CJ observed in Russo v Aiello (at [5], [7]), what will constitute justifiable delay on the part of a reasonable person in making a claim is to be considered in the light of the legislative purposes of the MAC Act. See also [74] per Gummow and Hayne JJ. Those purposes include encouraging the early investigation, assessment and resolution of claims so as to advance the interests of claimants in having prompt treatment and rehabilitation, and in having the prompt payment of lost earnings; and so as to advance the interests of insurers in more accurately predicting claims frequency and formulating premiums. The Act seeks to achieve these objects by the imposition on both claimants and insurers of time limits and obligations to act expeditiously: see also Walker v Howard per Allsop P at [90]. [25] Secondly, as Gleeson CJ also observed in Russo v Aiello at [7]: … what the Act requires is justification for delay; not demonstration that the delay caused no harm. … the focus of the statutory concept of a satisfactory explanation is upon justifying delay, rather than excusing it. It is one thing to say that conduct is justified by reference to the way in which a reasonable person in the position of a claimant could have been expected to behave. It is another thing to say that delay ought to be excused because it caused no identifiable harm to an insurer. It is the former, not the latter, question that is raised for consideration."
2. Although these remarks relate to other provisions in the legislation, these remarks are apposite, in that they underline the missing factual elements in this application. The concept of a satisfactory explanation requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant's evidence, the delay to the time that proceedings were commenced was reasonably justifiable.
3. The plaintiff's explanation is not satisfactory in relation to the following: 1. The mere fact that a person suffers from psychological/psychiatric disorder, whether prior to the accident or not, should not be a sufficient basis for that person to be excused from compliance with the statutory provisions designed to ensure that motor accident claims are brought promptly. Many persons making claims suffer serious injuries without those being the cause of failure to comply, and a reasonable person in the plaintiff's position, who was aware in a general sense that there were time limits, would not have been inactive simply by reason of her pre-existing disorders. 2. Unlike the plaintiff in Dijakovic v Perez, who did not understand (and thus seek help) about the disorder leading to his avoidant behaviour, the plaintiff had a series of dedicated professionals who were available to assist her in coping with this problem. 3. The plaintiff had the benefit of some legal training in the form of legal studies, was well-educated and able to appreciate the importance of complying with time limits, as the existence of which she was put on notice during her consultations with Slater & Gordon. A reasonable person in the plaintiff's position would have opened the letters addressed to her, as that person would have known they were not follow-up letters but confirmation of an important appointment, as well as repetition of earlier advice and warnings that there were significant time restraints in the legislation.
4. For the above reasons, the explanation is not satisfactory. It is not uncommon for an injured plaintiff to demonstrate "avoidant" (Dijakovic v Perez at [87]) behaviour towards the obtaining of legal advice, or to be in denial about injuries. In Dijakovic v Perez the plaintiff ignored communications from his solicitors for twelve to sixteen months, conduct which was explainable by medical evidence tendered on his behalf, and which included the plaintiff's failure to seek treatment for the psychiatric problems which triggered this avoidant behaviour.
5. However, it is unwise to rely upon apparent similarities in factual situations; each case must turn on its facts. In the present case, a reasonable person in the place of the plaintiff, with all her advantages of education and skilled health professionals to advise her, would not have acted in the way that she did. I am satisfied that the plaintiff has not given either a "full and satisfactory" explanation.
6. At the commencement of these proceedings, Mr Renshaw sought summary findings on the basis of estoppel. I indicated that I would give reasons in my judgment for my refusal to hear the application summarily and I have set these out below.

Estoppel per rem judicatam

1. The defendant also seeks summary dismissal on the basis of estoppel per rem judicatam arising from the consent judgment entered in the Local Court for the full amount claimed by the defendant for motor vehicle property damage plus interest and costs.
2. When the proceedings brought by the defendant for property vehicle damage were listed for hearing, the plaintiff, representing herself, signed consent orders requiring her to pay the amount claimed in full. The question is the impact of the words "without admission of liability", which were added to the consent orders by the duty solicitor present in court that day, who gave her some legal advice.
3. The plaintiff does not challenge the submission that a judgment by consent such as consent orders can operate as an estoppel (as to which, see Spencer Bower and Handley, "Res Judicata", 4th ed. (LexisNexis Butterworth), at 2.16; for more recent considerations of this issue see Chamberlain v DCT (1988) 164 CLR 502 (although that was a case of res judicata or cause of action estoppel); Makhoul v Barnes (1995) 60 FCR 572 at 582 and Conference & Exhibition Organisers Pty Ltd v Johnson [2016] NSWCA 118 at [34]). However, the plaintiff submits that the judgment agreed to on 5 April 2013 was "secured expressly subject to there being no determination of liability" (Outline of submissions, paragraph 19) and that the words "without admission as to liability" mean that decisions such as Tiufino v Warland and Charafeddine v Morgan can be distinguished, in that the issue estoppel arise as a result of a judgment obtained after a hearing and determination on the evidence.
4. I first set out my reasons for not dealing with this submission on a summary basis. The first is that the extent to which a consent judgment may give rise to issue estoppels "has not been finally determined", as Spencer Bower and Handley note at 2.16 and caution must be exercised. The second, and more important, is the need, not only in the circumstances of this case but generally where such a submission is made, for careful examination of the evidence. Observations as to the importance of considering the evidence in the case was considered "absolutely essential" by Street CJ and Roper CJ in Eq, in Isaacs v The Ocean Accident and Guarantee Corporation Ltd and Winslett (1958) 58 NSWR 69, their Honours setting out the following extract from Spencer Bower on Res Judicata (at p 114 para 174): "In the case of judgments and orders by consent ... it is absolutely essential to refer to the pleadings or affidavits of the parties, if the judgment or order is in a naked and general form, in order to ascertain what, if any, decision of particular questions or issues was impliedly consented or submitted to by the party against whom such consent ... judgment or order was made."
5. While the test of whether a consent judgment gives rise to an issue estoppel is objective, the need for the court to examine "all evidence that is available and admissible and with the aid of such material ascertain any and what adjudication of matters in dispute was expressly or necessarily involved in the actual decision assented to" was emphasised more recently by the New South Wales Court of Appeal in Ekes v Commonwealth Bank of Australia at [112] - [114] ("Ekes").
6. Examination of the pleadings and evidence in the Local Court confirms that, apart from the fact that these proceedings resulted in consent orders rather than a hearing, the case is consistent with Charafeddine v Morgan. Mr Thompson's submissions on relevant factual issues essentially rely upon the plaintiff's state of mind and reliance, as a litigant in person, on the duty solicitor who added the words "without admission of liability".
7. As to the first, the subjective state of mind of a party is not the issue (Ekes at [115]). I also note that the plaintiff did not expressly reserve her rights in personal injury proceedings; to the contrary, her evidence is that she was unaware of those rights (this is relevant to the "without admission of liability" argument set out in more detail below).
8. As to Mr Thompson's second submission, in Charafeddine v Morgan the defendant in the Local Court property damage claim was also self-represented (as noted at [112]), although she had legal assistance with the drafting of her defence, and this was not a sufficient factor to amount to "special circumstances" (an argument I note was not raised in these proceedings in any event).
9. For the same reasons as in Charafeddine, the relationship between motor vehicle property damage claims in the Local Court and personal injury claims gives rise to an issue estoppel on the question of negligence, namely, that the plaintiff had breached her duty of care to the defendant (Charafeddine at [16]). As the full amount was paid, the issue of contributory negligence may also be taken to have been determined.

"Without admission of liability"

1. The plaintiff's real argument is that there is no estoppel because of the insertion of the words "without admission of liability" into the consent orders.
2. The defendant counters this submission by referring to Ashenden v Stewarts & Lloyds [1972] 2 NSWLR 484 ("Ashenden"), where the words "without admission of liability" were inconsistent (per Taylor AJA) or repugnant (per Hardie AJA) to the rest of the settlement and therefore of no effect. The plaintiff responds that this decision is restricted to the limitations of the Workers' Compensation Commission and has no general application.
3. There is some force in the plaintiff's submissions, for the reasons explained by P W Taylor SC, Senior Member AATA, in Liang v Secretary, Dept of Social Services [2015] AATA 275 at [23]: "In judicial fora there is a practice of obtaining judgments or orders that are expressly recorded as having been made "without admission of liability". There is substantial authority for the view that orders or judgments of that kind do not give rise to any relevant estoppel in relation to the points at issue in the proceedings: see Isaacs v Ocean Accident & Guarantee Corporation Ltd & Winslett (1958) SR (NSW) 69 and Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75 at 91. But the authorities are not all one way. Where a particular decision maker's jurisdiction or powers depend upon satisfaction about a particular event or state of affairs, the power cannot be conferred by an agreement made "without admissions": see Ashenden v Stewarts & Lloyds (Australia) Ltd [1972] 2 NSWLR 484."
4. However, when determining whether an estoppel arises, the principles enunciated in Ashenden have been considered in a number of decisions outside the parameters of workers' compensation proceedings, such as in Lord v Dernacourt Investments Pty Ltd (Supreme Court of New South Wales, McLelland CJ in Eq, 14 March 1994, unreported). These authorities are analysed and explained by Bergin J (as her Honour then was) in Rhodes v Fletcher [2002] NSWSC 637. Her Honour states (at [40]) that, to the extent that these qualifying words are inconsistent with the implicit admission of the existence of any necessary condition of the Court's power to make the order, they are ineffective, the more so in the case of a final order.
5. As is noted above, the plaintiff was not reserving her rights as to any claims for personal injury damages, because I consider she was unaware of those rights at the time of consenting to the settlement. The words were a mere legal flourish.

Conclusions concerning estoppel per rem judicatam

1. I am satisfied that the defendant's full uncompromised recovery of all damages from the plaintiff in the Local Court precludes any recovery (including contributory negligence) by the plaintiff and that the words "without admission of liability" were surplusage. Accordingly, in addition to dismissing the plaintiff's application under s 109, I find that the defendant has established Estoppel per rem judicatam.

Costs and other issues

1. Costs should follow the event. I grant liberty to restore for any variation of this order in the event that any application for alternative costs orders is to be made.
2. The complexity of what would otherwise have been a straightforward application under s 109 was complicated by the extensive material, the unusual nature of the challenge to the plaintiff's application, and by two applications made in the course of the trial for which I made rulings on the understanding that I would give reasons in this judgment.
3. First, Mr Renshaw, during the hearing of these proceedings, said that his client would seek a referral of these proceedings to the Director of Public Prosecutions. He pointed to the absence of medical evidence and the asserted dishonesty of the plaintiff in her evidence, and asked me to make an order in this regard. I indicated to Mr Renshaw that I would prefer any such application to be made after I handed down judgment, rather than be the subject of submissions in the proceedings, and that I would set out my reasons for this determination in my judgment.
4. Referrals of a witness or party to the Department of Public Prosecutions by a judge during or even after a hearing are rarely made, and still more rarely acted upon. Both the absence of a statutory-based procedure and the reluctance of the court to make such orders other than in the clearest of cases are evident from the very few judgments recording the bringing of such applications (see for example Adeeb v Alali [2013] NSWSC 312). There is also the risk of error of discretion by the trial judge, resulting in the requirement for appellate clarification: Dai v Zhu [2013] NSWCA 412.
5. There is no single legislative pathway for such a step. I am aware of specific legislation being enacted in 2015 in the United Kingdom and the United States in relation to "fundamental dishonesty" (to use the terminology in s 57 Criminal Justice and Courts Act 2015 (UK)) in personal injury litigation, and of the amendments to Rule 11 of the Federal Rules of Court Procedure in the United States by the Law Abuse Reduction Act (LARA) 2015 (HR 758, S 401), but these were controversial reforms which have no parallel in this jurisdiction.
6. There are a number of ways that such a request can be put before the court, ranging from requests to commence a private prosecution under s 338(1)(c) Crimes Act 1900 (NSW) (Mohareb v Palmer [2015] NSWCA 369) to an application to the Registrar (Application of Alejandro Arturo Toro-Martinez [2008] NSWSC 34) or to the Prothonotary of the Supreme Court. These differing provisions merely underline the difficulties for any trial judge who is also called upon to make findings of fact for other purposes (for an example in relation to personal injury, see Glover v Australian Ultra Concrete Floors Pty Ltd [2006] NSWSC 503). This is all the more the case where an application is foreshadowed or brought during (as opposed to after) the proceedings. That does not, however, prevent the defendant from bringing any such application as it sees fit after judgment is handed down.
7. Second, in the course of the hearing, Mr Thompson sought a s 128 Evidence Act 1995 (NSW) certificate in relation to certain evidence the plaintiff gave, both in her affidavit and in cross-examination, which she later conceded was untrue.
8. Conformably with the reasoning in Clayton Utz v Dale [2015] VSCA 186 at [116] I did not grant such a certificate because, while the privilege against self-incrimination may be available to a plaintiff on issues of credit or on collateral issues in a proceeding, that is not the case with respect to the issues that form the foundation of the plaintiff's claim.

Orders 1. Summons filed on 31 August 2015 dismissed. 2. Plaintiff pay defendant's costs. 3. Liberty to restore in relation to costs and to any other post-judgment application.

I certify the preceding 115 paragraphs and 3 ordersto be a true copy of her Honour Judge J Gibson'sreasons for decision dated 27 May 2016. ……………………………….. (Associate) 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: 27 May 2016