El Jendi v The Trustee for P Mouawad Family Trust trading as P Mouawad Constructions Pty Ltd

Supreme Court of NSW|2019-11-27|Before: Wright J

Solicitors: Prominent Lawyers (plaintiff) James Tuite & Associates (defendant) File Number(s): 2016/73741

Judgment

This matter has had a somewhat protracted and difficult history. The present application was no exception.
After some discussion between counsel and the bench and in order to attempt to deal with the real matters in issue justly, quickly and cheaply, leave was granted at the hearing on 27 November 2019 to the plaintiff, Mr El Jendi, to file an amended notice of motion seeking in effect the following orders: 1. leave to file an amended statement of claim in the form annexed to an earlier notice of motion; 2. leave, pursuant to s 109 of the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act) for the commencement of proceedings under that Act by way of the amended statement of claim to the extent that the amended statement of claim refers to and/or raises a claim under the MAC Act; 3. costs of the motion be costs in the cause.

Background

The plaintiff's claims in these proceedings arise out of the following allegations: 1. The plaintiff was employed by A1 Civil Formwork Pty Ltd (A1 Civil) as a formwork labourer on 9 March 2013 at a construction site in Carlingford, New South Wales. He was 33 years old at the time. 2. The defendant [1] was the head contractor for the construction site and operated a bobcat motor vehicle at the site. The bobcat was unregistered and, for presently relevant purposes, uninsured. 3. On 9 March 2013, the plaintiff was standing on a ladder at the construction site about 1.5 to 2 m above ground level and was hammering nails into formwork timbers. The ladder was secured and stable. The bobcat, which was being driven by an employee of the defendant, without warning reversed into the ladder which caused it and the plaintiff to fall to the ground. As the plaintiff fell and landed on the ground he began to shout out to the driver of the bobcat because he thought the bobcat was continuing to reverse towards him and would run over him. Fortunately, the driver of the bobcat heard the plaintiff's shouts and brought the bobcat to a halt before it ran over him. 4. The plaintiff suffered injury as a result of falling from the ladder and catching his left arm, and virtually impaling it, on vertical reinforcing steel rods which were poking out of the concrete at ground level close to where the plaintiff was working. The injuries were significant, principally to his left arm, left hand and neck. The plaintiff has not worked since this accident.
What steps have been taken to pursue claims for damages since the accident have been the subject of evidence from the plaintiff's present solicitor. None of that evidence was challenged by the defendant and I accept it. In addition, there was an affidavit from the plaintiff which I shall deal with in more detail below. It is sufficient to note here that he was not cross-examined nor was there any reason to reject his evidence. There was also evidence from the defendant's solicitor concerning steps taken in these proceedings which was also unchallenged and which I accept. Further limited, non-contentious information was derived from the Court file concerning the procedural history of the matter.
As far as the plaintiff's present solicitor could determine from the plaintiff's file, the solicitor who then had conduct of the plaintiff's claim initially and incorrectly assumed that because the accident in which the plaintiff suffered injuries involved a motor vehicle, the bobcat, which was not insured for compulsory third-party purposes, it was necessary, and possible, for a claim to be pursued against the Nominal Defendant. [2] Accordingly, before proceedings were commenced in the District Court on 8 March 2016, the only party against whom a certificate of exemption had been sought and granted, under s 92 of the MAC Act, was the Nominal Defendant. A certificate of exemption had not been sought, or granted, in respect of a claim against the defendant prior to the commencement of the proceedings on 8 March 2016. It was not in dispute that a certificate under s 94 of the MAC Act had not been obtained nor was one appropriate in any event.
On 8 March 2016, the plaintiff filed a statement of claim in the District Court naming Keelor Pty Ltd as the first defendant and the present defendant as the second defendant. The statement of claim included the following: "2. The Plaintiff brings his claim pursuant to the Civil Liability Act 2002. 3. The Plaintiff brings his claim pursuant to 3B of the Motor Accidents Compensation Act 1999 in that the Plaintiff was injured in circumstances resulting from the use and operation of a motor vehicle which gave rise to a work injury. 4. At all material times, the First and/or Second Defendants were the head or principal contractors for the construction site situated at … Carlingford, in the State of New South Wales, ("the construction site"). 5. At all relevant times the First and/or Second Defendants owned and/or operated a motor vehicle, namely a bobcat at the construction site. 6 At all relevant times the First and/or Second Defendants employed the driver of the motor vehicle, namely a bobcat at the construction site."
As can be seen, at that time, the plaintiff's solicitor was unsure as to the identity of the head contractor, the owner or operator of the bobcat and the employer of its driver.
A defence was filed by the defendant on 30 June 2016 and in that defence it was conceded, in par 4.1, that the principal contractor for the construction site was the defendant and, in par 5.1, that at all material times an employee of the defendant was operating the bobcat at the construction site
An amended defence filed by the solicitors for the defendant on 9 November 2016 included the following: "(a) Prior to the commencement of these proceedings the Principle Claims Assessor did not issue a certificate pursuant to Section 92 of the Motor Accidents Compensation Act 1999 (NSW), (b) Prior to the commencement of these proceedings a Claims Assessor did not issue a certificate pursuant to Section 94 of the Motor Accidents Compensation Act 1999 (NSW), and (c) Pursuant to Section 108 of the Motor Accidents Compensation Act 1999 (NSW) the Plaintiff was not entitled to commence the proceedings and is not entitled to continue the proceedings."
At some time during 2016 (but after 8 March), the plaintiff applied for an exemption certificate under s 92 in respect of claims against "P Mouawad Construction Pty Ltd and Keelor Pty Ltd", it apparently still being unclear to the plaintiff at that time which of those companies was responsible for the bobcat and its operation.
On 15 December 2016, a certificate that these claims were exempt under s 92(1)(a) of the MAC Act was issued by the State Insurance Regulatory Authority. The certificate identified that the personal injury claims were made "on or about 8 March 2016" which appears to be a reference to the date of the statement of claim. The certificate also included the following: "6. In the replies, the Respondents agree with the information set out in the application form and indicate that they agreed that the claims are exempt claims. The Respondents' solicitor in submissions has indicated that although consenting to the exemption the Respondents are of the view that '… any Certificate of Exemption now issued it will not cure the failure to obtain a Certificate prior to the commencement of those proceedings.'"
Over the 12 months from March 2016 to March 2017, as a result of the filing of the defence and amended defence by the defendant, of proposals for an amended statement of claim to be filed by the plaintiff and of other correspondence, it apparently became accepted by the solicitors for the plaintiff and for the defendant that the defendant was the head contractor, had possession of the bobcat at the relevant time and was the employer of the bobcat driver. There remained, for some time, confusion as to whether or not the defendant did these things in its capacity as the trustee of the P Mouawad Family Trust and whether this was relevant to the proceedings. Although nothing appears to turn upon this now, the defendant's raising these issues at the time did not apparently assist the timely progress of the proceedings. In the correspondence during this period, the issue of compliance with ss 108 and 109 of the MAC Act was also addressed by the plaintiff's solicitors. In their letter of 8 February 2017, the plaintiff's solicitors said: "… We concede an Exemption Certificate was not obtained in respect of the Defendants before proceedings were commenced. However, an Application has been made for an Exemption Certificate in respect of [the defendant], and a Certificate has been issued. A copy of the Exemption Certificate dated 20 December 2016 is enclosed. The plaintiff is we contend now entitled to rely upon the pleadings arising under the provisions of the Motor Accidents Compensation Act 1999, as well as those arising under the Civil Liability Act 2002. It is a matter for your client as to whether it wishes to make any Application for any alleged breach of s108 and/or s109 of the Motor Accidents Compensation Act 1999. We do not in the circumstances anticipate any difficulty in obtaining leave for pursuit of Court proceedings in respect of a claim under the provisions of the Motor Accidents Compensation Act should it be necessary. However, we trust you will, in the circumstances, seek instructions to consent to leave being given for the Plaintiff to be able to rely on the claims made in the pleadings under the provisions of the Motor Accidents Compensation Act. Leave can, in those circumstances be sought, by consent, at the next suitable Directions hearing. …"
On 8 March 2017, the plaintiff's present solicitor wrote to the defendant's solicitor. After referring to the plaintiff's intention to pursue a work injury damages claim against A1 Civil, the plaintiff's solicitor went on again to address in effect the questions of whether s 108 of the MAC Act had been complied with, although that section was not specifically identified, and of the relationship between a claim under the MAC Act and a claim in accordance with the provisions of the Civil Liability Act 2002 (NSW) (CL Act). The letter included the following: "Firstly although the Plaintiff does contend his accident and injuries were caused and/or contributed to by the negligent driving of the bobcat by an employee of the Defendant whom was, at the time, an authorised agent and/or employee of the Defendant, and for whose negligence the Defendant was vicariously liable, the Plaintiff also, quite clearly, contends in addition and/or in the alternative in the filed pleadings, that the accident in which he sustained injuries was also caused and/or contributed to by negligence of the Defendant, P Mouawad Constructions Pty Ltd, in its role as the head of principal contractor for the construction site. That liability clearly can only arise and be determined in accordance with the provisions of the Civil Liability Act 2002. Hence, to the extent the claim is framed as a Civil Liability Act claim, reliance solely on breach by the Defendant of its obligations as the head or principal contractor, and not as the owner of the vehicle or employer of its driver, the claim has always been validly commenced and cannot be struck out by reliance on the decision in Emad Trolley. The Plaintiff herein does not, by his pleading, seek to avoid the application of the Motor Accidents Compensation Act. Rather, reliance on that Act has always been specifically pleaded in addition and/or in the alternative. … Any procedural failings in respect of the Plaintiff's compliance with pre-litigation requirements of the Motor Accidents Act have now been overcome and all such requirements have been complied with. We do not in the circumstances anticipate any difficulty in obtaining leave the pursuit of Court proceedings in respect of a claim under the provisions of the Motor Accidents Compensation Act should it be necessary. We trust you will, in the circumstances, seek instructions, to consent to leave being given for the Plaintiff to be able to rely on the claims made in the pleadings under the provisions of the Motor Accidents Compensation Act. Leave can, in those circumstances be sought, by consent, at the next suitable Directions hearing. …".
It does not appear that the defendant ever provided the consent sought.
On 1 September 2017 the plaintiff filed a separate statement of claim in the District Court against A1 Civil seeking damages for personal injury arising out of the accident on 9 March 2013 as well.
On 8 September 2017 A1 Civil filed its defence.
On 1 May 2018 the solicitors for the defendant wrote to the plaintiff's solicitors referring to their letter dated 21 July 2016. They provided responses to that letter which included: "2. The second defendant [the present defendant] admits that the incident as pleaded was a 'motor accident' as defined by the Motor Accidents Compensation Act 1999 (NSW) (MACA). Our client maintains its reliance on section 108 of the MACA."
On 3 May 2018, the defendant served a further amended defence which also included the paragraphs quoted above, contending that, pursuant to s 108 of the MAC Act, the plaintiff was not entitled to commence or continue the proceedings in relation to the MAC Act claim.
On 5 July 2018 the solicitors for the plaintiff provided a draft copy of an amended statement of claim to the solicitors for the defendant and sought their consent to the document being filed.
On the same day, 5 July 2018, the solicitors for the defendant responded to the plaintiff's solicitors' request and sought some further information concerning the proposed amended statement of claim so that they could inform their client. Under cover of the same letter they also provided another copy of their proposed further amended defence which included the same paragraphs concerning the application of s 108 of the MAC Act.
On 26 July 2018, the District Court directed the plaintiff to indicate whether he consented to the defendant filing its proposed further amended defence.
On 9 August 2018 the solicitors for the defendant sent a letter to the solicitors for the plaintiff asking that they indicate the plaintiff's position in relation to the proposed further amended defence and noting that the plaintiff had not responded to the defendant's letter requesting particulars and clarification of the proposed amended statement of claim.
On 16 August 2018 the plaintiff's solicitors wrote to the defendant's solicitors making observations concerning the proper description of the defendant and providing responses to the letter of 5 July 2018. The letter also contained the advice that the plaintiff consented to the filing of the further amended defence. In addition the letter contained the following: "… we kindly request for you to put on a Motion to strike out the proceedings forthwith if, as you contend in your letter of 1 May 2018, that your client 'maintains its reliance on S108 of the MAC Act 1999' despite the content of our letters to your office of 8 March 2017 and 8 February 2017."
On 22 August 2018 the solicitors for the defendant wrote to the solicitors for the plaintiff indicating that they would consent to the filing of the proposed amended statement of claim subject to certain relatively minor amendments and certain costs orders.
It can be noted here that the form of the amended statement of claim which leave is now sought to file is not different in substance from the proposed amended statement of claim the subject of the letter of 22 August 2018, although there are certain minor changes.
By about September 2018, the present proceedings and the proceedings against A1 Civil were transferred to this Court from the District Court.
On 25 October 2018, the plaintiff filed a notice of motion seeking leave to file the proposed amended statement of claim together with costs.
On 8 November 2018, the plaintiff filed an amended notice of motion, seeking among other things the following orders: "3. Leave be granted to file an Amended Statement of Claim, as attached hereto. … 5. That leave be granted, pursuant to Section 109 of the Motor Accidents Compensation Act 1999 ("the Act") for commencement, nunc pro tunc, of the within proceedings and/or the within proceedings to the extent that the proceedings referred to and/or give rise to a claim under the provisions of that act. …".
On 13 March 2019, these notices of motion came on for hearing before me. On that occasion, Dr Thornton appeared for the plaintiff. After some discussion about the difficulty of granting leave nunc pro tunc in respect of the MAC Act claims when those claims could not have been commenced at the time the original statement of claim was filed and when no further proceedings had been commenced since the issue of the s 92 certificate, the hearing was adjourned for the parties to consider their positions. On resumption, I was informed that the parties had reached an agreed position. As a result, I made the following orders by consent: "1. The notice of motion filed on 25 October 2018 and the amended notice of motion filed on 8 November 2018 be dismissed. 2. The plaintiff is to pay the defendants' costs of those motions."
The Court also noted: "1. That the matters are listed for directions on 27 March 2019 before the Registrar. 2. The plaintiff has agreed to notify the defendants how he intends to proceed by 22 March 2019."
On 28 June 2019, the plaintiff filed a notice of motion seeking leave to file a proposed amended statement of claim and costs. In this version of the proposed statement of claim, the defendant was nominated as the first defendant and A1 Civil as the second defendant.
On 27 November 2019, the matter came before me once again. On that occasion, Mr Taylor of counsel appeared for the plaintiff. Without objection from Ms Dinkha of counsel who appeared for the defendant, the plaintiff was given leave to file and move on an amended notice of motion. That amended notice of motion sought the following orders: "1. That leave be granted, pursuant to Section 109 of the Motor Accidents Compensation Act 1999 ("the Act") for commencement, nunc pro tunc, of the within proceedings and/or the within proceedings to the extent that the proceedings referred to and/or give rise to a claim under the provisions of that Act from 20 December 2016. 2. That leave be granted to file an Amended Statement of Claim, as attached hereto. 3. The costs of the Motion, be costs in the cause."
In the version of the proposed amended statement of claim attached to that motion, the only defendant identified was the present defendant.
As noted above, after some discussion between counsel and the bench concerning the difficulty granting leave nunc pro tunc in the present case and in order to attempt to deal with the real matters in issue justly, quickly and cheaply, leave was granted at the hearing on 27 November 2019 to the plaintiff to file and move on a different amended notice of motion seeking in effect the following orders: 1. leave to file an amended statement of claim in the form annexed to earlier amended notice of motion filed on 27 November 2019; 2. leave, pursuant to s 109 of the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act) for the commencement of proceedings under that Act by way of the amended statement of claim to the extent that the amended statement of claim refers to and/or raises a claim under the MAC Act; 3. costs of the motion be costs in the cause.
It was accepted that Mr Taylor was not aware of what had occurred on 13 March 2019 or of the discussions that had taken place on that occasion.
Both parties indicated that they were able to proceed on 27 November 2019 in relation to the reformulated version of the orders sought in the second amended notice of motion.

The application for leave to amend

Ms Dinkha raised a number of legitimate concerns as to the form of the proposed amended statement of claim, in particular: the inappropriateness of the heading to par 25 and the introductory words of that paragraph and the fact that the breaches of statutory duty pleaded in par 25(a) to (e) and (m) do not give rise to any cause of action sounding in damages contrary to what appears to be pleaded. Mr Taylor explained that the second par 25(a) appearing after par 25(m) should be par 25A and all the other subparagraphs of par 25 should, in effect, be treated as if they were under the heading at par 26. The situation being clarified in this way, Ms Dinkha indicated that there was no objection to the filing of the amended statement of claim.
In the circumstances, I propose to grant leave to the plaintiff to file an amended statement of claim. If the parties can agree on a revised form of amended statement of claim that corrects the issues identified above, a document in that form may be filed. Otherwise, leave will be given to file an amended statement of claim in the form annexed to the first amended notice of motion but on the understanding as to the intended effect of that document explained during the hearing by Mr Taylor.
Any costs thrown away by the defendant as a result of the amendment should be paid by the plaintiff. As there were difficulties with the form of the proposed amendment which required clarification and the plaintiff was, in effect, seeking an indulgence from the Court, I consider that the plaintiff should pay the costs of the defendant attributable to this aspect of the notice of motion.

Application for leave to commence proceedings under s 109 of the MAC Act

The second aspect of the plaintiff's amended notice of motion related to the commencement of the proceedings in so far as they involved a claim under the MAC Act. The relevant sections of that Act are ss 108 and 109. Those sections are relevantly in the following terms: "108 Claims assessment or exemption pre-condition for commencement of court proceedings (1) A claimant is not entitled to commence court proceedings against another person in respect of a claim unless: (a) the Principal Claims Assessor has issued a certificate in respect of the claim under section 92 (Claims exempt from assessment), or (b) a claims assessor has issued a certificate in respect of the claim under section 94 (Assessment of claims). (2) The provisions of this section are in addition to those of section 109. Accordingly, both sections are capable of applying to a claim. 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, … 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. … (5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim."
For the purposes of s 109(3)(a), "a full and satisfactory explanation" is defined in s 66(2) of the MAC Act as follows: "(2) In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay."
It was not in dispute that: 1. the plaintiff was the claimant in the present case; 2. section 108 of the MAC Act operated, in the present case, so that the plaintiff was not entitled to commence court proceedings against the defendant in respect of a claim falling within the MAC Act, unless a certificate under s 92 of the MAC Act had been issued; 3. section 94 was not relevant; and 4. in the circumstances, the plaintiff became entitled to commence proceedings in respect of the MAC Act claim after the s 92 certificate was issued on about 15 December 2016.
Thus, when the plaintiff filed its original statement of claim on 8 March 2016, to the extent that the proceedings related to a claim under the MAC Act, the proceedings could not be commenced and, to that extent, the proceedings were not valid and were of no legal effect: Emad Trolley Pty Ltd v Shigar (2003) 57 NSWLR 636 at [70]-[79], [86]-[87] (McColl JA, Meagher and Hodgson JJA agreeing); [2003] NSWCA 231.
Further, it did not appear to me that I could now grant leave nunc pro tunc under s 109 to commence proceedings in respect of the MAC Act claim on 8 March 2016, since such a claim could not be commenced at that time because of the operation of s 108. In addition, while it would be possible to grant leave under s 109 to commence proceedings in respect of the MAC Act claim now, if the requirements under s 109(3) were satisfied and if it was otherwise appropriate to do so, it did not appear to me that I could grant leave nunc pro tunc for the commencement of such proceedings in respect of that claim on the day after the s 92 certificate was issued. This was because no such proceedings had been commenced on that or any other day after the issue of the certificate. Consequently, there was no action then - tunc, for which leave could be given now - nunc.
If the plaintiff wished to pursue its claim under the MAC Act, his options included seeking leave under s 109 to commence fresh proceedings now and, if leave were given, to seek to have those proceedings consolidated with the existing proceedings, which include the claim in accordance with the CL Act. Alternatively and in order to avoid the unnecessary steps of having to commence new proceedings and then seeking consolidation with the existing proceedings, he could seek leave under s 109 to commence proceedings in respect of the claim under the MAC Act, with such proceedings to be taken to be: 1. commenced by filing the amended statement of claim, referred to earlier in these reasons; and 2. commenced only on and from the date of filing of the amended statement of claim.
The plaintiff, in effect, sought to adopt the second option and the defendant did not contend that this option was not available. I accept that, while it may be a little unusual, this option allows the real matters in issue to be determined justly, quickly and cheaply and the Court's processes should be adapted to the extent necessary to allow the option to be used in the present case.
In order for the discretionary power to grant leave to commence the proceedings in respect of the MAC Act claim after the expiration of the 3 year period specified in s 109(1) to be enlivened, the plaintiff was required to satisfy the requirements in s 109(3). Thus, the plaintiff had to: 1. provide a full and satisfactory explanation to the Court for the delay: s 109(3)(a); and 2. demonstrate that the total damages of all kinds likely to be awarded to the plaintiff if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under s 134 as at the date of the relevant motor accident: s 109(3)(b).
The defendant conceded that the requirement in s 109(3)(b) was satisfied in the present case. On the material before the Court including that annexed to the affidavit of Ms Pershad, sworn 8 November 2018, I accept that this concession was properly made.
Accordingly, it is necessary to consider whether the plaintiff has provided a "full and satisfactory explanation for the delay" for the purposes of s 109(3)(a) as explained in s 66(2).
This inquiry has two relevant time periods: 1. the period in respect of which a "full" account is required of the plaintiff's conduct which is the period from the date of the accident until the date of providing the explanation for the delay in commencing proceedings; and 2. the period of "delay" in commencing the proceedings after the three year time limit has expired: Dijakovic v Perez [2015] NSWCA 174 (Dijakovic) at [81] (Gleeson JA, Leeming JA and McCallum J agreeing); 71 MVR 334.

Was there a full account of the plaintiff's conduct?

Under s 66(2), there must be a "full" account of the plaintiff's conduct, "including the actions, knowledge and belief" of the plaintiff, from the date of the accident until the date of providing the explanation.
The plaintiff provided his explanation of his conduct by way of his affidavit of 8 November 2019 supplemented by the affidavits from the solicitor who currently is responsible for his claims. Ms Dinkha contended that "the date of providing the explanation", for the purposes of s 66(2) was, therefore, 8 November 2019. Mr Taylor did not contend for any shorter period, as I understood his submissions.
The entirety of the plaintiff's evidence of his conduct, including his actions, knowledge and belief, is contained in the following paragraphs of his affidavit of 8 November 2019: "2. Following injuries sustained by me in the accident on 9 March 2013, I consulted my Solicitor's, Prominent Lawyers, on 16 May 2013. Thereafter, to date, I have relied entirely upon their advice and expertise in pursuit of my claims for damages arising from the accident. 3. I understood from advice provided by my Solicitor's that proceedings, in relation to and arising from the accident, needed to be commenced within 3 years from the date of the accident. I understood, from what I was advised by my Solicitor's, that proceedings were commenced within that timeframe. 4. However, I am aware, that proceedings pursued under the provisions of the Motor Accidents Compensation Act 1999 may not have been validly commenced and that it was necessary to seek leave from the Court to commence or maintain those proceedings and/or to rely upon the pleadings already filed in Court on 8 March 2016. 5. I have no independent knowledge of what has been occurring regarding the pursuit of my claim for damages. The reasons, as I am aware, for the delay in my proceedings are as follows: a. Waiting for my condition to stabilise and recover sufficiently for the extent of impairment arising from the accident to be able to be determined; b. The different laws that apply to my proceedings, and; c. The delay in transferring the proceedings from the District Court to the Supreme Court. 6. I have, at all times, assumed my Solicitor's have been properly preparing and pursuing my claim for damages and I have no independent knowledge of the steps taken by them to do so."
The only action disclosed, in the plaintiff's affidavit, is his consulting his solicitors on 16 May 2013. This is not a full account of his relevant actions concerning his claim. It does not include any account of his receiving treatment, when he communicated with his solicitors, whether and when he provided instructions when requested or attended medical and other examinations or any other action taken by him with a view to progressing the claim. No such evidence was provided in the other affidavits relied upon by the plaintiff.
The plaintiff gives some evidence of his knowledge and belief as to the requirement to commence proceedings within 3 years of the accident and the fact that he was aware that the claim under the MAC Act may not have been validly commenced and it was necessary to seek leave in relation to that matter and the reasons for delay of which he was aware. His evidence does not include an account of when he acquired his knowledge and belief in these regards and whether he took any steps or action as a consequence to minimise or avoid delay. Further, a full account of his knowledge and belief should not be limited to his "independent knowledge", as appears to be the focus of his affidavit. The plaintiff's knowledge and belief, which relates to his conduct during the relevant period, may include relevant information derived from others. This aspect of his knowledge and belief was not provided in a comprehensive or detailed form.
As to his assumption that his solicitors were properly preparing and pursuing his claim for damages, there was no explanation given of how he came to assume that was so. Consequently, there was no basis on which it could be assessed whether the plaintiff's assumption was well founded or reasonable in the circumstances.
The plaintiff's solicitor's affidavit of 8 November 2018 and its annexures give some indication of what has occurred over the relevant period. What was disclosed has been set out in the summary of what occurred given above. However, in light of the length of time involved and the steps referred to in the evidence, I am not satisfied that this, together with the plaintiff's affidavit, amounts to a full account of the plaintiff's conduct, including the actions, knowledge and belief of the plaintiff and his advisors, from the date of the accident until the date of providing the explanation. There are too many unexplained, lengthy gaps when nothing appears to have occurred and there is a lack of specific information as the plaintiff's relevant actions and his knowledge and beliefs, however derived.

Was there a satisfactory explanation for the delay?

In respect of the period of "delay", there must be a "satisfactory" explanation for the period of time which caused the need for the granting of leave under s 109(1): Dijakovic at [130] (Leeming JA).
In the present case, since the application for a certificate under s 92 was not made until after the expiration of the three year limitation period in s 109(1), it does not appear that the suspension of the period effected by s 109(2), from when a claim has been referred to the Authority for assessment and until 2 months after a certificate is issued, has any role to play. The three year period expired on 8 March 2016. The "delay" from that time until the time when effective steps to seek leave to commence the proceedings were taken in November 2019 is in the order of 3 years and 8 months. Even if the relevant period of delay should be taken to end when, on 8 November 2018, the plaintiff first filed a notice of motion seeking leave under s 109, nunc pro tunc, to commence proceedings in respect of the MAC Act claim, the delay would be in the order of 2 years and 8 months. It could, however, be argued that the period from the consent dismissal of that earlier notice of motion, in March 2019, to the filing of the present notice of motion, in November 2019, should be added to this period, making a total of 3 years and 4 months. At one point, the plaintiff suggested that the relevant period of delay was from December 2016, when the s 92 certificate was issued to the date of the hearing, being approximately 3 years. The plaintiff did not submit, however, that the success of his application depended on which of those periods was the correct period of "delay" or that the differences between them would make any significant differences.
As to whether any explanation for the delay is satisfactory, s 66(2) provides that an explanation is not a satisfactory explanation unless a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay. This concept of a satisfactory explanation requires the making of an evaluative judgment as to whether, by reference to an objective standard and given the plaintiff's position, the delay which has occurred was reasonably justifiable: Dijakovic at [19] (Gleeson JA).
As explained by Basten J in Transport Accident Commission of Victoria v Jovanic [2019] NSWSC 1137 at [44], Allsop P in Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408 (Spigelman CJ, Allsop P, Campbell, Macfarlan and Young JJA) (at [96]): "rejected the proposition that "the focus in the second sentence is only upon the acts or omissions of the claimant", continuing: 'It is the whole explanation - the full explanation contemplated by the first sentence against which the question is to be asked whether [the delay was one] the reasonable person in the position of the claimant would or would not have been justified in experiencing.'" (footnote omitted)
In this regard, the plaintiff submitted that the explanation for the delay was "errors and misunderstandings … on the part of plaintiff's legal advisors" [3] and the plaintiff was relying at all relevant times on the actions and advice given to him by his legal advisors. Further, it was said, in effect, that the plaintiff's first language was not English and he was a construction labourer and in these circumstances it was understandable and reasonable that he should rely on his legal advisors. Although there was no specific evidence in this regard, it was submitted that it could be inferred that the situation as his advisors understood it had been explained to him and he was content to rely upon those advisors and their advice.
The defendant submitted that no sufficient explanation for the delay had been given. Ms Dinkha drew particular attention to the absence of any evidence explaining why no effective steps to seek leave to commence proceedings had been taken between March 2019 and November 2019, despite what had occurred when the matter was previously before the Court in March 2019. It was also said that the Court should not draw the inferences as to advice and the plaintiff's acceptance of that advice for which the plaintiff contended, in the absence of appropriate evidence concerning those matters.
I accept that the plaintiff, who was born in 1980, only completed schooling to the equivalent of year 5 in Lebanon, and worked in an auto-electrical workshop before coming to Australia in 2005. He does not speak English well and his affidavit was accompanied by a translator's affidavit. Since being in Australia, he has worked as a formwork labourer. I also accept that part of the delay has been caused by errors and misunderstandings on the part of his legal advisors. There are, however, periods of delay that cannot readily be accounted for entirely on the basis of errors or misunderstandings by legal advisors. In addition, there was an absence of specific evidence as to what errors and misunderstandings had occurred and precisely why appropriate steps were not taken earlier. Moreover, for the reasons given above, the evidence from the plaintiff and his solicitor did not include a full account of his conduct, including his actions, knowledge and belief, before and during the period of the delay.
Under s 66(2), in determining whether the explanation offered on behalf of the plaintiff is satisfactory, I am required to apply an objective test of justification. The words of the section indicate that I must consider, not whether a reasonable person in the position of the plaintiff would have experienced the same delay, but rather, whether such a person would have been justified in experiencing that delay.
From the solicitors' correspondence, including the letters quoted above, it appears that the plaintiff's solicitors believed that the requirements of ss 108 and 109 of the MAC Act were merely formal matters and the consequences of non-compliance did not need to be addressed as a matter of substance and with any urgency. This belief was incorrect.
It was reasonable for the plaintiff to rely on his legal advisors in relation to his claims arising out of his injuries, provided timely progress was being made. But, in light of the lack of specific evidence as to his legal advisors' errors or misunderstanding and their impact on the progress of proceedings, the absence of a full account of his actions, knowledge and belief which might include or explain other elements of delay, the general lack of timely progress and in all the circumstances referred to above, I am not satisfied that a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay. I have reached this conclusion whichever period of delay referred to above is involved.

Conclusion on application for leave to commence proceedings under s 109 and costs

For all of these reasons, I do not accept that the plaintiff has provided a full and satisfactory explanation for the delay for the purposes of s 109(3)(a) of the MAC Act.
This conclusion is unfortunate, since it means that, unless there is a further successful application for leave under s 109, the plaintiff's claim under the MAC Act cannot be determined with his other claims against the defendant and A1 Civil. Nonetheless, it is the conclusion which I feel bound to reach in the circumstances, given the terms of s 109(3)(a) and s 66(2) of the MAC Act.
For completeness, I should add that, had I been satisfied that the plaintiff had provided a full and satisfactory explanation for the delay and the power to grant leave to commence the proceedings relating to the MAC Act claim was enlivened, I would have granted leave. The defendant has been on notice of the allegations upon which this claim and the CL Act claim are based from at least March 2016. Thus, the defendant has had the opportunity, since that time, to prepare its defence in relation to the alleged accident and injuries for the purposes of the CL Act claim, which involves issues that overlap to a substantial extent with the MAC Act claim. As a result, I do not accept that there would be any substantial injustice or prejudice to the defendant in granting leave. Further, refusing leave would potentially prejudice the plaintiff to a significant extent.
Nonetheless, the plaintiff has been unsuccessful in obtaining leave to commence proceedings under s 109 of the MAC Act. In the absence of any reason why costs should not follow the event in this regard, the plaintiff should pay the defendant's costs of this aspect of the notice of motion

Orders

For these reasons, the Court orders: 1. The plaintiff has leave to file an amended statement of claim in the form annexed to the first amended notice of motion filed on 27 November 2019 or in such other form as may be agreed between the parties. 2. The plaintiff is to pay the defendant's costs, if any, thrown away as a result of the amendment. 3. The application for leave to commence proceedings under s 109(1) of the Motor Accidents Compensation Act 1999 (NSW) is dismissed. 4. The plaintiff is to pay the defendant's costs of the applications.

Endnotes

The defendant is identified in these proceedings as "The Trustee for P Mouawad Family Trust trading as P Mouawad Constructions Pty Ltd" even though it might be more appropriate to describe it as: P Mouawad Constructions Pty Ltd as trustee for the P Mouawad Family Trust; or, simply, P Mouawad Constructions Pty Ltd.
This was not the case since claims under s 33(1) of the MAC Act against the Nominal Defendant in relation to uninsured vehicles are limited to those that arise out of "the use or operation of the vehicle on a road in New South Wales" (emphasis added). It was not in dispute that the plaintiff's accident did not arise out of the use or operation of the bobcat "on a road".
T28.32-37. 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: 19 December 2019

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