Janetzki v Janetzki . [2001] VSC 328

11. On 17 August 2001 the second defendant filed a summons in the Court whereby it sought an order that the proceeding (against it) be dismissed for want of prosecution.

14. On 27 August the plaintiff filed a summons in the proceeding seeking (inter alia) the following orders:

"(1) That the Plaintiff consent to the Secondnamed Defendant's motion; (2) That the Court make a declaration that the Plaintiff has provided full and satisfactory explanation for the delay in notifying the claim to the Secondnamed Defendant; (3) That leave be granted to commence proceedings out of time pursuant to Section 52(4) of the Motor Accidents Act 1988 (N.S.W.); (4) That the fresh proceedings be granted the same priority as if they had been commenced at the same time as the defunct proceedings."

18. The sections of the Act relevant for present purposes are ss.43, 43A and 52. The sub-sections of those sections relevant for present purposes read:

"43. Time for and notice of making of claims (1) The object of this section is to promote the early making of claims to enable the insurer: (a) to commence investigations while evidence relating to a claim is available; and (b) to identify injuries and facilitate the access of claimants to appropriate injury management and rehabilitation services and thus to expedite the claimant's recovery; and (c) to allow the insurer to more accurately predict claim frequency and hence formulate premiums. (2) A claim must be made within 6 months after: (a) except as provided by paragraph (b), 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. (3) ... (4) A claim is made by giving notice of the claim to the person against whom the claim is made and, if that person's insurer is a third-party insurer, to the insurer. (5) The requirement under subsection (4) (only in so far as it is a requirement to give notice of a claim to the person against whom the claim is made and without affecting the requirement to give notice to the insurer) does not apply if: (a) that person is dead; or (b) that person cannot be given notice." "43A. Late making of claims (1) The objects of this section are: (a) to ensure that the issue of the lateness of a claim is dealt with as soon as possible after receipt of the claim, and (b) to ensure that any delay caused to the consideration of the substantive claim by the lateness issue is kept to a minimum, and (c) to ensure that the lateness issue is either resolved or made a mutually apparent substantive issue at an early date. (2) A claim may be made more than 6 months after the date determined under section 43 (in this section called a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the third-party insurer concerned (if there is one) or to the Nominal Defendant. (3) Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation. (4) A late claim may not be made more than 12 months after the date determined under section 43 unless, in addition to the provision of a full and satisfactory explanation, the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 10 per cent of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident." "52. Time limitations on commencement of court proceedings

(1) A claimant is not entitled to commence court proceedings against another person in respect of a claim until 6 months have elapsed since notice of the claim was given to the other person and (if required by section 43(4)) to the other person's insurer.

(2) If notice is given to the other person's third-party insurer then despite subsection (1) the claimant is entitled to commence court proceedings if any of the following occurs: (a) the insurer denies all liability in respect of the claim; (b) the insurer admits partial liability in respect of the claim but the claimant is dissatisfied with the extent to which liability is admitted; (c) in the case of a later claim within the meaning of section 43A, the insurer rejects the claimant's explanation for delay in making the claim. (3) If a claimant commences proceedings in respect of a claim more than 12 months after the date on which the claim is made, the claimant must provide a full and satisfactory explanation to the court for the delay. (4) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after the date on which the claim must be made in accordance with section 43 except with the leave of the court in which the proceedings are to be taken. (5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim."

26. When the summonses came before me in the Practice Court on 3 September 2001 the plaintiff consented to an order that her proceeding against the Nominal Defendant be dismissed on the ground of her failure to comply with the provisions of s.52(1) of the Act. I made an order to that effect that day.

29. No argument was advanced to me concerning the second defendant's application to dismiss the plaintiff's claim against it for want of prosecution and that summons can be disregarded.

32. With a view to eventually re-instating her proceeding against the Nominal Defendant the plaintiff now seeks the declaration referred to in paragraph 2 of her summons and the leave referred to in paragraph 3.

35. The starting point in resolving the dispute between the plaintiff and the second defendant is to determine when it was that the plaintiff first gave notice of her claim to the second defendant.

38. In her affidavit of 27 August 2001 the plaintiff's solicitor Geraldine Clare Collins has sworn that the plaintiff gave notice of her claim to the Victorian Transport Accident Commission (TAC) on 15 September 1994 and that the plaintiff's claim was accepted by a letter of 23 January 1995.

41. The plaintiff's solicitor has then sworn that the plaintiff received a "New South Wales claim form" from TAC enclosed in a letter of 24 May 1995, that the claim form was returned to TAC on 6 July 1995 and that TAC acknowledged receipt of it by letter of 31 July 1995.

44. The plaintiff's counsel was unable to produce a copy of that claim form during the hearing before me and I am somewhat puzzled therefore by the nature of the claim form.

47. However, whatever was the nature of that claim form it clearly was not a notice of claim to the second defendant as required by s.43 of the Act, a fact acknowledged by the plaintiff not only in this proceeding but in relation to a proceeding instituted on her behalf in respect of the same accident in New South Wales and to which I shall later refer.

50. What the second defendant did receive under cover of a letter of 11 April 1997 from the plaintiff's solicitors, however, was a copy of the plaintiff's County Court writ.

53. By letter of 5 May 1997 NRMA Insurance which had been appointed to act on behalf of the second defendant sought particulars from the plaintiff's solicitors of the plaintiff's claim and details of the search and enquiry made by the plaintiff or on her behalf to establish the identity of the unknown vehicle.

56. An appropriate claim was then sent to the NRMA by the plaintiff's solicitors under cover of a letter of 8 May 1998.

59. And so it would appear that although the second named defendant had knowledge of the plaintiff's claim as from 11 April 1997 the notice required by s.43 of the Act was not given until 8 May 1998.

62. I earlier referred to a proceeding instituted by the plaintiff against the first and second defendants in the District Court of New South Wales in which the plaintiff sought an award of damages in respect of the same accident.

65. On 23 March 1998 that proceeding came before His Honour Judge Robison.

68. By consent of the plaintiff his Honour ordered that the plaintiff's claim in that proceeding against the Nominal Defendant be struck out because of the plaintiff's failure to comply with s.43 of the Act.

71. As I earlier observed that was a clear recognition by the plaintiff and her solicitors that the notice required by s.43 of the Act had not been given to the Nominal Defendant prior to the institution of that proceeding.

74. That of course was confirmed by the plaintiff and her legal advisers so far as this present proceeding is concerned when they appeared before me on 3 September and consented to the plaintiff's claim against the Nominal Defendant being dismissed.

77. And so the plaintiff is now in the situation that she has no claim on foot against the Nominal Defendant in either Victoria or New South Wales and before she can institute any such claim she must comply with the provisions of s.43A(4) of the Act and provide a full and satisfactory explanation for her failure to make a claim within time.

80. It is unnecessary for the plaintiff to produce evidence in relation to the second requirement of the sub-section as counsel for the Nominal Defendant conceded that the total damages likely to be awarded to the plaintiff will be not less than 10 per cent of the maximum amount that may be awarded for non-economic loss under s.79 or 79A of the Act as at the date of the plaintiff's accident.

83. What explanation then has the plaintiff given for her failure to make a claim within time.

86. The only explanation offered to the Court by counsel for the plaintiff was that the plaintiff did not make her claim against the Nominal Defendant within time because until the decision of the High Court in John Pfeiffer Pty. Ltd. v. Rogerson[1] her legal advisers were of the opinion that the law applicable to the plaintiff's claim was the law of the State of Victoria not the law of the State of New South Wales.

89. In Pfeiffer's case the High Court held that the common law in Australia should now be developed so that the lex loci delicti is the governing law with respect to torts committed in Australia but which have an interstate element.

92. As the Court went on to point out - application of the lex loci delicti consistently as a single choice of law rule in courts exercising federal jurisdiction and in courts exercising non-federal jurisdiction:

(a) reflected the fact that the torts are committed within a federation, and in particular, recognised and gave effect to the predominant territorial concern of the statutes of State and Territory legislatures as required by s.118 of the Constitution.

(b) prevented forum shopping, gave effect to the reasonable expectations of the parties and provided certainty as to the law relating to liability.

98. I am unable to accept the explanation advanced on behalf of the plaintiff for three reasons.

1. In Breavington v. Godleman[2], which was a case in which a passenger injured in a car accident in the Northern Territory sued the drivers of the two cars involved in the accident in the State of Victoria, a majority of the High Court held that the law of the Northern Territory, as the lex loci delicti, was to be applied by the Supreme Court of Victoria in determining the plaintiff's entitlement to damages.

The principle has been well established in this country since at least that time.

2. In this very proceeding I delivered reasons for judgment on 21 January 1999 in relation to an application by the Nominal Defendant for an order that the plaintiff's writ against it be set aside alternatively that the proceeding against it be stayed, on the ground that the plaintiff's cause of action was not justiciable in this State.

In refusing the application I said at page 3 of my reasons:

"My conclusion therefore is that the plaintiff's claim against the New South Wales nominal defendant is justiciable in this State but that in determining her claim this Court will apply the provisions of the New South Wales Motor Accidents Act 1988 and not the provisions of any similar Victorian legislation."

3. As I have pointed out on two occasions, by action No. 1535 of 1997 the plaintiff instituted proceedings in the District Court of New South Wales against the first and second named defendants seeking to recover damages in respect of the injuries she received in this very same accident.

107. The plaintiff's legal advisers must have been aware of the fact that the plaintiff would be required to comply with the provisions of the New South Wales legislation in respect of her claim against the Nominal Defendant in that litigation.

110. Finally, if what counsel for the plaintiff says is the plaintiff's explanation, in my opinion it is neither a full or satisfactory explanation.

113. I order that the plaintiff's summons filed in the Court on 27 August 2001 be dismissed.

116. I order that the plaintiff pay the first defendant's costs of the said summons.

119. I order that the plaintiff pay the second defendant's costs of the proceeding including the costs of its summons filed in the Court on 28 March 2001 but excluding the costs of its summons filed in the Court on 22 August 2001.

[1] [2000] HCA 36; (2000) 172 A.L.R. 625

[2] [1988] HCA 40; (1988) 169 C.L.R. 41