Boitalik v Alchin

District Court of NSW|2019-05-22

Solicitors: Paramount Lawyers (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2019/00108878

Judgment

In these proceedings, the plaintiff, Mr Shajaham Boitalik, by way of Summons filed on 8 April 2019, seeks an order that leave be granted to him to reinstate his claim against the defendant arising out of a motor vehicle accident alleged to have occurred on 20 February 2017 in Mascot in Sydney in New South Wales. The plaintiff also seeks an order that he file and serve his proposed Statement of Claim upon the defendant and/or his insurer within 14 days and related relief.
The defendant neither consents nor opposes the application.

The evidence

As stated above, the application is made by way of Summons filed by the plaintiff on 8 April 2019.
The plaintiff read three affidavits in support of his application: 1. The affidavits of David Marocchi sworn 8 April 2019 and 11 June 2019. Mr Marocchi is the plaintiff's solicitor; and 2. The affidavit of the plaintiff, Shajaham Boitalik, sworn 1 June 2019.
Mr Marocchi's affidavits are fairly brief. There is annexed to his first affidavit sworn 8 April 2019 a bundle of documents which are referred to in the affidavit.
The defendant read an affidavit of Ms Jamie Quach affirmed 11 April 2019.
From the affidavit evidence and the documents attached to the affidavits, I am able to ascertain the central background facts to the application.

Background facts

From the evidence before me, the background facts appear to be as follows: 1. The plaintiff was born in Bangladesh in 1952 and migrated to Australia in 1990. The present claim is the only claim he has ever made. He states that he leaves "all matters in the capable hands of my lawyers": plaintiff affidavit paragraph 9; 2. On 20 February 2017 the plaintiff was driving his Toyota Yaris sedan along Frogmore Street at Mascot. As he proceeded through the intersection of Hollingshed Street, the defendant's vehicle, which was travelling along Hollingshed Street, allegedly entered the intersection from the plaintiff's left side and failed to give way causing a collision with the plaintiffs vehicle; 3. It is alleged in the draft Statement of Claim that the defendant owed a duty of care to the plaintiff and breached that duty of care in the conduct of his vehicle, thereby causing injury to the plaintiff. Injuries set out in the proposed Statement of Claim as having been suffered by the plaintiff include injuries to his lower back, right shoulder and hip with related psychological injuries. An extensive list of particulars of continuing disabilities is set out in the proposed Statement of Claim. Also annexed to the proposed Statement of Claim is a Statement of Particulars relating to the plaintiff's alleged injuries and continuing disabilities; 4. By letter dated 8 August 2017, AAMI, the defendant's insurer, sent a written notice to the plaintiff's solicitor under s 81(1) of MACA denying liability for the plaintiff's claim. It was stated in the notice that the insurer did not agree that the defendant was at fault and caused the accident, and claimed that the plaintiff failed to give way at an intersection before proceeding; 5. Mr Marocchi gives evidence in paragraph 4 of his first affidavit that at about the time the s 81 notice was received, he delegated the matter to a paralegal who was studying in his fourth year in law at university and requested that he draft and prepare an application so that the matter could be exempt; 6. On 8 September 2017, the case manager at the Claims Assessment and Resolution Service forwarded a copy of a certificate of exemption to the plaintiff's solicitors. The certificate stated that the claim was exempt from assessment because the defendant's insurer denied liability for the claim in the s 81(1) notice; 7. On 25 January 2018, a case manager for the Medical Assessment Service forwarded a letter to the plaintiff's solicitors enclosing a certificate of a MAS assessment conducted by Assessor Dr Ashwell dated 18 January 2018 in which he declined to make an assessment of the degree of permanent impairment of the plaintiff's right shoulder injury, due to the need for further treatment or surgery. The plaintiff had advised Dr Ashwell that he intended to undergo further treatment for the right shoulder injury. Other injuries to the cervical spine, lumbar spine, left hip and right hip were assessed as not giving rise to a permanent impairment greater than 10%; 8. On 13 November 2018, a case manager for the Medical Assessment Service forwarded a Combined Certificate of a MAS assessment to the plaintiff's solicitors which stated that the various injuries alleged by the plaintiff as arising from the accident gave rise to an assessed combined permanent impairment of 8%. This was based on the soft tissue injury to the plaintiff's right shoulder. There is no report relating to an assessment of the plaintiff's alleged psychological injuries arising from the accident; 9. In his first affidavit, Mr Marocchi states that the matter continued to be conducted by the paralegal at his firm up until early January 2018. He states that in around June 2018 the paralegal resigned from the firm and a junior solicitor was employed to conduct the day-to-day carriage of the matter. Mr Marocchi states that due to the employment of the junior solicitor, certain correspondence was overlooked and not perused by him. This includes a s 110 notice issued to the plaintiff; 10. By letter from the defendant's solicitors dated 11 September 2018 to the plaintiff, the defendant provided notice under s 110 of MACA requiring the plaintiff to commence court proceedings in respect of the claim. In paragraph 8 of his affidavit, the plaintiff claims that he has never received any correspondence from the insurer "in respect to the current motion." The 11 September 2018 letter addressed to the plaintiff contains a notation "By Registered Post." I note the postcode for the plaintiff's address is not complete. In paragraph 5 of his second affidavit, Mr Marocchi notes that the plaintiff indicated to him that "even if [the plaintiff] had received the notice he would not have understood what the notice meant and what was required of him and would have provided the notice to his Lawyers." Ms Quach's affidavit states that the notice was sent to the plaintiff: affidavit paragraph 2. Ms Quach is the partner at the defendant's solicitors with conduct of the file on behalf of the defendant. Under s 110(2) of MACA, a claimant must comply with the notice within three months after its receipt. If a plaintiff does not comply with the notice, the claimant is taken to have "withdrawn the claim": s 110(3) of MACA; 11. By letter dated 11 September 2018, the defendant's solicitors forwarded a copy of the s 110 notice to the plaintiff's solicitors. The evidence establishes that it was received by the plaintiff's solicitors; 12. Mr Marocchi states in his first affidavit that he overlooked the s 110 notice which had been issued due to the change of personnel. He states that if he had seen the s 110 notice dated 11 September 2018, he would have implemented the necessary "protocol and procedures" which the firm has in place to diarise the time to commence proceedings to avoid the current application made before the Court: paragraph 9 of Mr Marocchi's first affidavit. Mr Marocchi states in his first affidavit that the solicitor with carriage of the matter resigned from the plaintiff's firm in about mid-December 2018; 13. By letter dated 29 January 2019, the defendant's solicitors wrote to the plaintiff's solicitors referring to the s 110 notice, noted that no proceedings had been commenced, and accordingly stated that the claim was deemed to have been withdrawn under s 110(3) of MACA; 14. By letter dated 25 February 2019, the plaintiff's solicitors sent a letter to the defendant's solicitors noting the 29 January 2019 letter, referring to the plaintiff's solicitor's office being shut and Mr Marocchi being on leave, and requesting consent to have the matter reinstated. By letter dated 5 March 2019, Moray & Agnew, the defendant's solicitors referred to s 110(5) of MACA; 15. Mr Marocchi states in his first affidavit that having received the 29 January 2019 letter from the defendant's solicitors, he thoroughly reviewed the file and for the first time saw the s 110 notice served on his firm by the defendants with the 11 September 2018 letter.
I have already referred to significant aspects of the plaintiff's affidavit sworn 1 June 2019 in my summary of the background facts.

Principles applicable

Under s 66(2) of MACA, in order for there to be a "full and satisfactory explanation" for the failure by the plaintiff to comply with the s 110 notice, the plaintiff must provide: 1. A full account of the conduct, including the actions, knowledge and belief of the plaintiff, from the date of the accident until the date of providing the explanation; and 2. The explanation must be such that a reasonable person in the position of the plaintiff would have failed to have complied with the duty or would have been justified in experiencing the same delay.
There are a number of similar provisions in both MACA and other legislation relating to the compensation of injured persons that require a "full and satisfactory explanation" to be provided by a plaintiff in order for a claim to be reinstated or for leave to be granted to a plaintiff to commence proceedings. The principles stated in authorities which have considered such provisions are generally relevant to the current application.
In Gower v State of New South Wales [2018] NSWCA 132, Basten JA stated at [4] that to obtain leave, a party needed to establish three propositions being: 1. There was a sufficient and acceptable explanation for each period of delay; 2. The claimant had a reasonably arguable claim of negligence; and 3. The conduct of a trial would not cause the defendant significant prejudice, so as to render the trial unfair.
Although Basten JA dissented in the result in that case, there was no suggestion in the case that his Honour's statement of principles was not correct. The weakness of the case was a factor to take into account in granting leave.
In Ellis v Reko Pty Ltd [2010] NSWCA 319 Young JA (with whom Beazley JA and Handley AJA agreed) stated as follows at paragraphs [19]-[21]: "19 The word "full" is a word that must be given its semantic significance and it means that the explanation must be set out and it is not sufficient that the Court should be asked to draw inferences from correspondence, et cetera, at least where that is not obvious. 20 Mr Goodridge puts that the authorities such as Walker v Howard [2009] NSWCA 408; 55 MVR 9 make it clear that it is not every detail, no matter how significant, that must be put in the full and substantial explanation. 21 However, whilst there may be some nice distinctions between what falls one side of the line or the other, one must, to my mind, at least give more details in this case, than this applicant did."
The plaintiff carries the onus of satisfying the Court in the present case that he has fulfilled the requirements of s 66(2) of MACA and that the explanation proffered by him is both full and satisfactory: Smith v Grant [2006] NSWCA 244 at [14]. The explanation provided by the plaintiff must be full and must not "pick and choose" the information to be given relevant to the delay: Buller v Black [2003] NSWCA 45 at [42]-[46].
The explanation required is not limited personally to the plaintiff where the plaintiff cannot provide that explanation fully but may require the delay to be explained by legal practitioners acting on behalf of the plaintiff as has occurred in the present case: Walker v Howard [2009] NSWCA 408 at [72] and [106]; Hickey's Transport Pty Ltd v Gordon [2008] NSWCA 167 at [59] and [90].
In Nominal Defendant v Browne [2013] NSWCA 197, Basten JA (with whom Barrett and Gleeson JJA agreed) stated as follows at [23]-[24]: "23. An explanation is not a "full" explanation simply because it recounts all that the claimant can remember three years later. One would expect both solicitors and counsel to have some note of the instructions given and the advice relayed. In this case her lack of recollection is understandable, but the explanation given by her was not "full" in the absence of any attempt to obtain further information from her own solicitors and counsel. 24. The primary focus of Walker v Howard, a case involving a claimant with serious brain damage who was not in a position to look after his own interests, was upon the second limb of the test, namely whether the explanation was "satisfactory". That element cannot be assessed if the explanation is incomplete. It nevertheless affirms the need to look to the actions of persons other than the claimant where those actions may form part of the position or circumstances of the claimant."
In Karambelas v Zaknic (No 2) [2014] NSWCA 433 Meagher JA (with whom Basten JA and Simpson J agreed) stated as follows at paragraphs [16]-[17]: "16. An explanation is "full and satisfactory" within s 66(2) if it satisfies two requirements. 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 a late claim under s 73(1) that is the date on which the explanation is first provided. Secondly, the explanation must be such that a reasonable person in the position of the claimant "would have been justified in experiencing the same delay". The delay is the period during which the claimant was late in making his or her claim; a period commencing six months after the date of the motor accident and continuing until the claim is first made by giving notice to the third-party insurer. This summary of the position accords with the observations of this Court in Nominal Defendant v Browne [2013] NSWCA 197; 64 MVR 214 at [15] - [16] (Basten JA, Barrett and Gleeson JJA agreeing) as to the application of the definition in s 66(2) to the circumstances of a late claim, and is not inconsistent with the decision in Mancini v Thompson [2002] NSWCA 38, which makes clear that the focus of the "full" account is on the period of delay to be explained: at [46] - [47] per Rolfe AJA, Beazley and Stein JJA agreeing. 17. The concept of a satisfactory explanation in s 66(2) requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant's position, the delay which occurred was reasonably justifiable. The precise question that arises under s 73(7) is whether the Court is satisfied that the claimant "has a full and satisfactory explanation". The use of the present tense makes plain that the Court is not restricted to a consideration of the explanation which was provided "in the first instance". However, the position remains that the explanation is directed to the delay which occurred to the time when the claim was made."
In Dijakovic v Perez [2015] NSWCA 174 Gleeson JA (with whom Leeming JA and McCallum J agreed) stated in paragraphs [15]-[19] the following: "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] NSWCA 433 at [16]. 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]. 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 v Thompson at [46]. 18. Secondly, the explanation must be such that a reasonable person in the position of the claimant "would have been justified in experiencing the same delay". The "delay" is the period during which the claimant was late commencing proceedings more than three years after the date of the motor accident, subject to the effect of s 109(2) which stops time running where a claim has been referred to the Authority for assessment under Pt 4.4. Here it is common ground that the effect of s 109(2) was that the relevant delay was almost 16 weeks. 19. The concept of a satisfactory explanation in s 66(2) requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant's position, the delay which has occurred was reasonably justifiable. The explanation is directed to the delay which occurred to the time when the proceedings were commenced: Karambelas v Zaknic at [17]."
There has been no appellate consideration in this State of the requirements of s 66(2) since Dijakovic v Perez.
Here it is stated by Mr Marocchi, and submitted by the plaintiff, which I accept, that his firm overlooked the s 110 notice. In Smith v Grant [2006] NSWCA 244 Basten JA (with whom Handley and McColl JJA agreed) stated as follows at [32]-[33]: "32. This submission appeared to assume, perhaps unnecessarily, that the Court would be required to make a judgment as to the solicitor's conduct. No doubt it may be possible to infer from the lack of any substantial explanation, that the solicitor was dilatory, and possibly negligent. However, such an inference would not be drawn unless the occasion for explanation by the solicitor had arisen. On one view, it had not: what was required was a full account of the "conduct, including the actions, knowledge and belief of the claimant", and not that of her solicitor. Nor should the two limbs of the definition contained in s 66(2) be taken in isolation from each other. Thus, the test of whether an explanation is satisfactory, requires consideration of whether "a reasonable person in the position of the claimant ... would have been justified in experiencing the same delay". That would appear to view the matter from the position of the claimant, and not the claimant's solicitor. Accordingly what is relevant is any explanation given by the solicitor to the claimant, or, in the absence of explanation, a delay of a kind which might induce a reasonable person in the position of the claimant to seek an explanation. 33. As noted above, the insurer contended that the conduct of a claimant must be taken to include the conduct of her authorised agent, namely the solicitor. To an extent that contention should be accepted. Thus the claimant seeks to rely upon steps taken by her solicitor and, indeed, his omissions. Those are objectively identifiable matters which may form part of a full explanation. However, for reasons given below, it does not follow that an assessment of whether the explanation is satisfactory or not, requires any normative judgment about the conduct of the solicitor: see [60]. That being so, it follows that an explanation may be a "full explanation" without exploring the blameworthiness, or otherwise, of the solicitor."
See also the comments of Ipp JA (with whom McColl JA agreed) in Hickey's Transport Pty Ltd v Gordon [2008] NSWCA 167 at [59].
Accordingly, the following principles may be stated as being applicable: 1. The onus rests on the plaintiff to provide a full and satisfactory explanation to the court; 2. In order for there to be a "full and satisfactory explanation" within s 66(2) of MACA as used in s 110(5) of MACA, the explanation should include a full account of the conduct, including the actions, knowledge and belief of the plaintiff, from the date of the accident until the date of providing the explanation being the date when the explanation is first provided. Here, however, the relevant delay is a fairly limited one. In my view, I have to read the requirements of s 66(2) of MACA in the context of the more limited focus of the relevant delay in s 110 of MACA. This approach is supported by McNamara v Fitzgibbon [2005] NSWCA 274 at [8] and [42] and Hickey's Transport Pty Ltd v Gordon [2008] NSWCA 167 at [8]. The delay here is thus from the receipt of the notice until the filing of the Summons; 3. The court must then evaluate all of the reasons for the delay and decide whether they are full and satisfactory in the circumstances. The applicant for reinstatement cannot "pick and choose" the information given relevant to the delay; 4. The explanation must be such that a reasonable person in the position of the claimant would have been justified in experiencing the same delay. That includes a reasonable person with the same characteristics and injuries as the plaintiff has received; 5. While the requirement is to view the matter from the position of the claimant and not the claimant's solicitor, the conduct of a claimant must be taken to include the conduct of his or her authorised agent, including his or her solicitor. Where omissions have been made by a solicitor, those omissions are objectively identifiable matters which may form part of a full and satisfactory explanation. However, an explanation may be a "full explanation" without exploring the blameworthiness, or otherwise, of the solicitor; 6. The delay in the present case is the period from about mid-September 2018 until the filing of the Summons in April 2019; 7. The court must then in exercising its discretion make an evaluative judgment or assessment as to whether, by reference to an objective standard and given the plaintiff's particular position, the delay which has occurred was reasonably justifiable; 8. As a matter of discretion, any prejudice to the defendant must be taken into account.
It is noted that no actual prejudice is alleged by the defendant in the present case and the period of the delay is fairly short. There is a slight presumptive prejudice.

Consideration

The first issue to determine is whether the s 110 notice was given to the plaintiff. It seems from s 110(2) of MACA, that the plaintiff must have received the notice for it to be valid. If it was not received then the claim is not taken to have been withdrawn.
Despite the fact that the plaintiff asserts that he did not receive the 11 September 2018 letter from the solicitors for the insurer, I think he probably did. The letter was addressed to the plaintiff's house albeit with an incomplete postcode (see the address referred to in the formal part of the plaintiff's affidavit and paragraph 6 of that affidavit). It also appears to have been sent by registered post (see the notation in the letter). The covering letter to the plaintiff's solicitors dated 11 September 2018 asserts the notice was sent to the plaintiff. Ms Quach gives evidence that the letter was "issued" to the plaintiff: affidavit paragraph 2. On the balance of the evidence, I find that the plaintiff received the s 110 notice in mid-September 2018.
I think it likely that upon receipt of the letter the plaintiff believed his lawyers were dealing with the letter and he therefore did not need to take any action. The last paragraph of the 11 September 2018 letter to the plaintiff provides some support for such a belief. It provides: "A copy of this notice has been provided to your solicitor." Also, I accept paragraph 5 of Mr Marocchi's second affidavit where he sets out a comment to him from the plaintiff that "even if [the plaintiff] had received the notice he would not have understood what the notice meant and what was required of him…"
Despite my factual finding as to receipt of the s 110 notice by the plaintiff, in my view the plaintiff in the present case has provided a full and satisfactory explanation for his failure to comply with the s 110 notice for the following reasons: 1. Initially, a final medical assessment of the plaintiff's injuries could not occur because the plaintiff's right shoulder required further treatment; 2. In November 2018 notice was sent to the plaintiff's solicitor by the Medical Assessment Service assessing the plaintiff's injuries including the injury to the right shoulder. At that stage, apart from alleged psychological injuries, the plaintiff's alleged injuries arising from the accident had been assessed; 3. Due to changes in the legal personnel at the plaintiff's solicitors, the s 110 notice had been overlooked by the solicitors for the plaintiff. The plaintiff's solicitor was on leave until 4 February 2019. On return from leave, he became aware of the omission. Thereafter, it appears that the plaintiff's solicitors took action reasonably promptly to correspond with the solicitors for the defendant and then prepare the necessary draft pleading and particulars and affidavit for the purposes of making the current application. The period from February 2019 to 8 April 2019 is thus satisfactorily explained: see McNamara v Fitzgibbon, above, at [40-[42] and Hickey's Transport, above, at [8]; 4. The plaintiff's affidavit provides that he left the preparation of the case to his solicitors (paragraph 9). Although I have found that he likely received a copy of the s 110 notice, he states that he would have provided a copy of the letter to his solicitors. I consider that he assumed that his solicitors were dealing with the notice. The evidence discloses that the plaintiff was a parcel sorter at the time of the accident. Accordingly, he is not sophisticated in relation to legal matters. He states in his affidavit that he has never previously made a claim for personal injuries in relation to a motor vehicle accident; 5. In all those circumstances, it appears reasonable to me that the plaintiff relied on his solicitors; 6. The proposed Statement of Claim pleads an arguable case. The case does not appear to be particularly weak as in Gower, above; 7. Accordingly, I find that the evidence establishes a full and satisfactory explanation from the plaintiff and his solicitors for the period from the date of the receipt of the notice until the Summons was filed. I also find that a reasonable person in the position of the plaintiff would have failed to comply with the duty and would have been justified in experiencing the same delay. Such a plaintiff would have reasonably relied on his solicitors to take proper action to protect his position particularly as the notice states that a copy would be forwarded to the solicitors.
There is nothing in the evidence which points to the discretion not being exercised in favour of the plaintiff. As I have stated, there is no evidence of actual prejudice to the defendant by the reinstating of the plaintiff's claim.
For the above reasons, in my view the plaintiff is entitled to an order reinstating his claim pursuant to s 110(5) of MACA.
I therefore make the following orders: 1. Pursuant to s 110(5) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff's claim is reinstated. 2. The plaintiff is to file and serve his proposed Statement of Claim which is Annexure A to the affidavit of David Marocchi sworn 8 April 2019 upon the defendant within 14 days. 3. The plaintiff's costs of the Summons are to be costs in the cause. 4. A party may apply to vary the costs order in (3) above within 14 days.

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: 13 June 2019

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