Masri v Stojanovski

The Law

1. Section 72 of the Act provides as follows: "72 Time for and notice of making of claims (1) A claim must be made within 6 months after the relevant date for the claim. The relevant date is the date of the motor accident to which the claim relates unless the claim is made in respect of the death of a person, in which case the relevant date is the date of the person's death. (2) A claim is made by giving notice of the claim as follows-- (a) in the case of a claim against a person whose insurer is a third-party insurer, to the person's insurer, (b) in any other case, to the person against whom the claim is made. (3) The requirement under subsection (2) (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."
2. Section 73 of the Act provides as follows: "73 Late making of claims (1) A claim may be made more than 6 months after the relevant date for the claim under section 72 (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 insurer. … (5) If court proceedings are commenced on a late claim, the insurer may apply to the court to have the proceedings dismissed on the ground of delay. … (7) On an application to have proceedings on a late claim dismissed on the ground of delay, the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim."
3. Section 109 of the Act provides as follows: "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 Commission 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."
4. The phrase "a full and satisfactory explanation" occurs in both s 73 and s 109. The phrase is defined in s 66(2) of the Act as follows: "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."
5. Counsel for the defendant indicated that there was no issue concerning s 109(3)(b), and that for the purposes of the Motions the damages likely to be awarded to the claimant if he succeeded were more than the statutory amount.
6. Counsel for the defendant also indicated to the court that the defendant would not argue that it had suffered any prejudice by reason of the delay in serving the claim, or the delay in commencing proceedings.
7. In Karambelas v Zaknic (No. 2) [2014] NSWCA 433 the Court of Appeal said the following relation to whether an explanation is "full and satisfactory" within the meaning of the Act: "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."

Key Dates

1. The parties agreed upon the following relevant dates: 1. 4 August 2017: Date of accident. 2. 30 January 2018: Incomplete Claim Form lodged. 3. 4 February 2017: Six months after date of accident. 4. 27 February 2018: Plaintiff was advised that the Claim Form lodged was incomplete as it contained a blank Medical Certificate. 5. 21 March 2018: Plaintiff provided a Medical Certificate, meaning that 21 March 2018 was the date when a completed Claim Form was taken to have been lodged. 6. 22 April 2020: CARS Application for Special Assessment lodged. 7. 4 August 2020: Three years after date of accident. 8. 3 February 2021: CARS assessor's determination of Special Assessment. 9. 31 March 2021: CARS Application for Exemption lodged. 10. 10 June 2021: Certificate of Exemption issued. 11. 20 January 2022: Section 110 Notice served. 12. 16 April 2022: Statement of Claim filed.

Plaintiff's Explanation

1. The plaintiff's explanation is contained in two emails, two Statutory Declarations and two affidavits. These are considered below.

Email dated 24 April 2018 (PX 1, p 206)

1. The first explanation provided by Mr Masri was in an email dated 24 April 2018. The insurer understandably insisted upon a Statutory Declaration. Nevertheless, the material in the email forms part of the plaintiff's explanation. In summary that email said the following: 1. Mr Masri was suffering from neck pain and was forgetful in relation to day-to-day activities. 2. Mr Masri was a solicitor acting for himself and had not attended the office for a significant period of time due to his injuries. 3. He was not aware that the Claim Form was missing the Medical Certificate, but as soon as he discovered that, he obtained a new certificate from his general practitioner and sent it to the insurer. 4. Mr Masri had received telephone calls from a rehabilitation centre, at the behest of the insurer. 5. Mr Masri had received correspondence from the insurer requesting information about his medical providers.

Email dated 3 May 2018 (PX 1, p 207)

1. In this email Mr Masri referred to the insurer denying liability based upon the assertion that the Claim Form was not submitted within the six-month period. He acknowledged that the Claim Form was incomplete but said that he believed that the Medical Certificate had been provided. When he was told that the insurer had not received a Medical Certificate, he obtained a new one and sent it to the insurer straight away.

Statutory Declaration dated 4 August 2018 (PX 1, p 203)

1. In this Statutory Declaration Mr Masri said as follows: 1. He reported the accident to the police on the day it happened. 2. He prepared the Claim Form without legal assistance. He had no legal assistance until 1 August 2018 when he consulted a barrister to assist with his explanation. 3. He had not realised that he had neglected to have the Medical Certificate completed by the doctor. 4. Mr Masri became exhausted by neck pain which became more extreme when he was sitting at a computer, so he had to take time off work. 5. Mr Masri is a sole legal practitioner handling criminal law and conveyancing transactions. He was not up to date in relation to practice and procedure for motor accident claims. In the two claims where he had acted, the clients themselves had completed the claim form without his assistance. 6. Mr Masri has been feeling very unwell since the accident and had overlooked the Medical Certificate. 7. Mr Masri was not aware that the Claim Form Medical Certificate was blank until the insurer notified him of this on 27 February 2018. Up to that point he believed that the Claim Form was complete and had been lodged within the six months.

Statutory Declaration dated 22 May 2020 (PX 1, p 200)

1. In summary Mr Masri said: 1. When Mr Masri provided the Claim Form he was struggling with neck pain which made it difficult to work and he was struggling with his memory and was forgetful. 2. Mr Masri was a sole practitioner with no support staff and was struggling to keep his practice going due to his injuries and disabilities. 3. He could not stop work to see the GP straight away to obtain a fresh Medical Certificate. 4. Mr Masri thought that by providing the Medical Certificate his claim would be accepted. 5. Mr Masri's doctors were of the view that he was mentally slow and forgetful due to the pain medication he was taking. 6. Mr Masri was required to take time off work due to his injuries and was struggling to keep his practice operating.

Affidavit dated 14 April 2022 (PX 1)

1. In summary, Mr Masri deposed to the following matters: 1. Mr Masri saw his GP on the day of the accident and on four subsequent occasions before the expiry of the six-month period. 2. Mr Masri believed that when he took his son and daughter to the GP on 29 January 2018 he spoke to the doctor about his accident and his injuries and he asked her to complete a Medical Certificate. 3. On 16 February 2018 Mr Masri received a letter from the insurer advising that they had received the Claim Form. 4. On 27 February 2018 Mr Masri received an email from a claims consultant of the insurer, informing him that he had provided a blank Medical Certificate. 5. Mr Masri had a telephone conversation with that claims consultant on 21 March 2018, when he was told that if he emailed a Medical Certificate it would be fine and the insurer would accept the claim. (There is a file note made by this claims consultant which is in different terms, but the claims consultant was not called to give evidence on the Motions). 6. Mr Masri was then suffering with neck pain, back pain and headaches. His memory was poor and he was forgetting about things. These problems were worsened by the pain medication he was taking. 7. On 21 March 2018 the GP gave Mr Masri a completed Medical Certificate, which he then sent to the insurer. This meant that the Claim Form was then complete, but that it was six weeks out of time. 8. On 27 March 2018 the insurer wrote to Mr Masri to discuss ongoing rehabilitation, which caused him to believe that his claim was accepted. 9. On 19 April 2018 the insurer requested an explanation for delay in lodging the Claim Form. 10. On 20 April 2018 the insurer sent a letter denying liability for the accident. 11. On 24 April 2018 Mr Masri sent his email to the insurer concerning delay. 12. On 29 May 2018 the insurer wrote to Mr Masri rejecting the explanation provided on 24 April 2018. 13. On 27 June 2018 Mr Masri sought advice from counsel and had assistance in providing the Statutory Declaration dated 4 August 2018. 14. On 2 October 2018 the insurer wrote to advise that the claim was not accepted, after considering the Statutory Declaration dated 4 August 2018. 15. In early November 2018 Mr Masri made contact with a firm of solicitors named Wyatts. 16. Wyatts sent a Costs Agreement, but Mr Masri did not sign it. He did not provide them with further instructions to proceed with this claim. 17. In the period 2018-2020 Mr Masri was preoccupied with the health of his father and his daughter. He took both of them to their medical appointments during this period. He was required to periodically attend Westmead Hospital with his daughter, who had a serious medical condition. This was a constant worry for two years between February 2018 and February 2020. 18. Mr Masri's daughter was admitted to Westmead Children's Hospital on 9 February 2018 and was diagnosed with a serious illness. Mr Masri blamed himself for not taking his daughter to the hospital earlier. 19. Mr Masri's father suffered from dementia and a number of other health conditions. He was admitted to Westmead Hospital in July 2020 and in November 2020. Mr Masri is the eldest child in his family and that means that he has the responsibility to look after his father. He knows his father's medical history and has attended all specialist treatments and appointments. Mr Masri's father had to be physically restrained at the hospital. 20. In August 2019 Mr Masri closed his office and decided to operate from home. 21. In January 2020 the pressure of working from home and demands from clients meant that he reopened his office. 22. In April or May 2020 Mr Masri instructed Mr Emirali, who was then an employed solicitor at Sayan & Associates. 23. On 22 April 2020 the insurer made a CARS Application to determine whether or not Mr Masri could proceed with his claim. 24. For a number of reasons, the Determination of the CARS assessor was not issued until 16 February 2021. The assessor determined that the claim could not be assessed as Mr Masri had failed to provide a full and satisfactory explanation for why the Medical Certificate in the original Claim Form was incomplete. 25. On 31 March 2021 Mr Masri instructed his solicitors to lodge an Application for Exemption from Assessment pursuant to s 91(1)(b) of the Act. 26. On 10 June 2021 the Personal Injury Commission issued a Certificate of Exemption. 27. Mr Masri had gone over the events surrounding the Medical Certificate and had spoken to the surgery and to his wife. He remained sure that the GP had provided the Medical Certificate on 29 January 2018. 28. Mr Masri thought that the failure to include the original Medical Certificate in the Claim Form was an oversight on his part, at a time when he was struggling with constant headaches and memory loss as a result of the accident.
2. The affidavit then dealt with further delays. In this regard Mr Masri said: 1. After the Certificate of Exemption was issued, he started to collate his documents and records to support an application for leave to commence proceedings pursuant to s 109 of the Act. He also started preparing his own affidavit. 2. From 26 June 2021 onwards he had to work from home instead of his office, due to the local outbreak of the Delta strain of COVID-19. 3. He decided to work from home as he did not want to have contact with clients who might pass on the virus, which he would then bring home to his large family of his wife and eight children. 4. Mr Masri lived in a part of Sydney which was a Local Government Area declared a "hot spot" by the State Government. Further, his office was in another hot spot. 5. During the lockdown Mr Masri attempted to maintain his practice from home, while supervising his children with home schooling and dealing with his own health issues and those of his father. 6. Working from home proved to be difficult, as the house was overcrowded and very noisy which made it difficult to concentrate. 7. The family only had two laptops, so Mr Masri had to hand over his laptop to the children during school hours so they could participate in Zoom classes. 8. With his work and family commitments, Mr Masri found it almost impossible to do any substantive work on his affidavit. 9. Around 15 November 2021 Mr Masri contracted COVID-19. He became extremely ill and on 2 December 2021 he was admitted to Westmead Hospital by ambulance. 10. On 4 December 2021 he was transferred to the ICU ward at Westmead Hospital where he remained for 10 days. 11. When he returned to work on 10 January 2022, Mr Masri found that his office had been broken into and his laptop had been stolen. 12. Between January and March 2022 Mr Masri was working with extreme difficulty due to breathing problems. He still has breathing difficulties and neck pain. 13. Mr Masri's mother became very ill causing her to be admitted to Westmead Hospital for two months between December 2021 and February 2022. Mr Masri attended his mother and helped out his elderly father to make sure he took his medication twice a day. 14. On 1 February 2022 Mr Masri changed his solicitors from Sayan & Associates to Emirali & Co. Mr Emirali took the file with him from Sayan & Associates when he established his own practice.
3. The balance of the affidavit dealt with medical matters and the potential claim for economic loss and domestic assistance. All of the appropriate medical reports were annexed to the affidavit.

Affidavit dated 7 July 2022 (PX 2)

1. This affidavit commenced by again dealing with the blank Medical Certificate. Mr Masri said that he honestly believed that he had obtained a certificate and provided it to the CTP insurer. He said that he was confused, as he thought he had obtained a Medical Certificate and provided it with the Claim Form. At the time he was struggling with his injuries and disabilities from the accident. Mr Masri now says that, while he believes that he did obtain a Medical Certificate, the reason it wasn't sent was an oversight on his part, as he was struggling physically and mentally at the time.
2. Mr Masri accepted that there were delays in filing the Statement of Claim and his affidavit. He pointed out that he had been attending to the medical needs of his mother who was in hospital, he had been attending his father's house to ensure that he was eating and that he took his medication and he was preoccupied with his daughter's illness. These matters were on top of his own pains and problems, which affected his ability to work and concentrate. Mr Emirali had reminded him on a number of occasions that he had to finalise his affidavit, but the delay in doing so was entirely that of Mr Masri.
3. The balance of this affidavit dealt with issues concerning potential damages.

Cross-examination of Mr Masri

1. In cross-examination Mr Masri said that he was admitted as a lawyer in December 2000 and has been a sole practitioner since 2003. The bulk of his practice is crime, conveyancing and wills. He has acted in one or two family law matters a year and in a few motor vehicle accident matters. He said that he was not aware of the three-year time limit for commencing proceedings under the Act.
2. Mr Masri acknowledged that in the doctor's file which he had obtained from his GP, he did not find a copy of the Medical Certificate which he asserted he obtained in January 2018. Mr Masri accepted that the Medical Certificate he sent to the insurer was blank.
3. Mr Masri acknowledged that in his earlier explanations (being the two emails and the two Statutory Declarations) he had not talked about his daughter's illness.
4. Mr Masri was cross-examined about seeing his GP on 2 July 2018. He had some medical problems but was flying out that night with his father to attend the Haj in Mecca. Mr Masri said that he was away for three weeks with his father, but that his brother and his uncle went along to help out with his father.
5. Mr Masri said that Mr Sayan gave him no advice, but left the conduct of the matter to Mr Emirali. He did not know Mr Sayan or Mr Emirali before going to see them, and he found them via Google.
6. Mr Masri was cross-examined about dealing with his father. He said that sometimes he was getting phone calls from his father's house at 3.00am, because his father was wandering the streets and getting into other people's cars. Mr Masri said "my life was chaos". He said that he always put himself last and was primarily concerned with the health of his father, his mother and his daughter.
7. Mr Masri said that he only became aware of the three-year time limitation period after he obtained the CARS Exemption Certificate dated 10 June 2021. He acknowledged that after the June 2021 lockdown started, he did continue to work, although in the fashion he deposed to in his affidavit. He said that in June, July and August 2021 he did not attend the office at all. In September and October 2021 he went to the office about once a week.
8. In re-examination Mr Masri said that from December 2021 to March 2022 he could barely breathe and could not walk for five minutes without becoming exhausted. Since that time and to the present he has continued to have trouble breathing. He could not drive or attend court in June 2022. As the eldest in his family, his parents rely upon him. He knows their medications and he always goes with his parents to doctors to talk about their condition.
9. Mr Masri gave evidence concerning the serious infection suffered by his mother, who at one stage was placed in palliative care. He became very emotional in talking about his mother's illness, and I regarded his presentation in this regard as genuine.

Submissions for the Plaintiff

1. Senior counsel for the plaintiff submitted that in an ideal world the Statement of Claim should have been filed upon receipt of the Exemption Certificate. However, he acknowledged that a common practice is to file the Statement of Claim, the Notice of Motion seeking an extension of time and the affidavit in support "as a package". If a Statement of Claim had been filed straight away, the delay would have only run up to mid-2021.
2. In relation to the delay in making the claim, senior counsel submitted that the explanation for delay was required for the period 4 February 2018 to 21 March 2018.
3. In relation to the application for leave to bring proceedings, senior counsel submitted that the plaintiff had to explain the delay between 4 August 2020 and the filing of the Statement of Claim on 16 April 2022.

Submissions for the Defendant

1. Counsel for the defendant pointed out that the claimant had let 14 months pass after the claim was rejected and did nothing until the insurer lodged its own CARS Application as to whether the late claim could proceed. Mr Masri had acknowledged in cross-examination that if the insurer had not filed that application, he would have done nothing for some considerable time.
2. In relation to the explanation for the late Claim Form, counsel acknowledged that the delay was not long. It was pointed out that there was nothing in either Statutory Declaration to say that Mr Masri did go to the GP in January 2018 to get a Medical Certificate. It was submitted that his explanation in the Statutory Declarations was different to his explanation now given to the court by affidavit.
3. Counsel submitted that the notion that Mr Masri obtained a Medical Certificate from the GP but failed to provide it to the insurer did not make sense. Counsel submitted that the court should reject the explanation in the affidavit as it was inconsistent with the two Statutory Declarations.
4. In relation to the late commencement of proceedings, counsel for the defendant criticised the plaintiff for not pursuing his rights with Wyatts Solicitors, who had expertise in personal injury claims. It was submitted that the plaintiff had not explained why he did not sign the Costs Agreement with Wyatts.
5. Counsel for the defendant criticised the plaintiff's evidence when he said that he did not know about the limitation period. It was pointed out that the plaintiff is a qualified legal practitioner, and that by training he would know where to look up such a period. It was also pointed out that the letters which came from the insurer made specific reference to the claim being governed by the Act. It was submitted that the plaintiff was acting in reckless disregard of his own rights by not finding out the time limit.
6. Counsel for the defendant submitted that even after the Certificate of Exemption was granted, and the plaintiff knew of the time limitation, he did not take steps promptly to prepare his own affidavit. He took 10 months to do so. It was only after the insurer served a s 110 Notice on 22 January 2022, that the documents to obtain leave were filed, four days short of the three-month period mandated by s 110.
7. There was a short period prior to the June 2021 lockdown when the plaintiff could have done his affidavit, as he was a solicitor who knew about court timetables from his own experience. Counsel submitted that even though the plaintiff was himself inexperienced in claims under the Act, it would be expected that he would have sought legal advice. He did obtain assistance from a barrister in relation to his first Statutory Declaration. He went to Wyatts, but did not pursue the claim through them.
8. Counsel submitted that the explanation was not full and was not satisfactory. Further, counsel for the defendant submitted that a reasonable person in the position of the plaintiff would not have experienced the same delay.

Consideration of the Explanation for Delay: The Claim Form

1. Mr Masri bears an onus to provide a "full account" of his conduct, including his actions, knowledge and belief, for the period of just over six weeks between the expiry of the six-month period for lodging the Claim Form and 21 March 2018, when it was finalised by provision of the Medical Certificate.
2. Mr Masri was cross-examined at some length in a thorough and vigorous fashion by experienced counsel for the defendant. I formed a favourable impression of his credibility. The answers he gave were forthright and frank. He did not shy away from making admissions against his own interest. If he had a perfect explanation, this application would not have been necessary.
3. The submission of a Claim Form to the insurer, with the Medical Certificate as a blank last page, bespeaks lack of attention to detail. On the face of it, this is surprising when the claimant is a legal practitioner. However, I accept the evidence of Mr Masri, supported as it is by all of the documentary medical evidence attached to PX 1, that at the time he submitted the Claim Form Mr Masri was suffering from significant neck and back pain, he was taking pain medication, he was suffering from headaches, he had concentration problems and he was forgetting things. With all of those problems, Mr Masri was struggling to maintain his sole practice, which he ran without any support staff.
4. Mr Masri says that he did obtain a Medical Certificate from his medical practitioner in January 2018, and that he thought he provided it to the insurer. When the insurer pointed out that p 11 of the Claim Form was blank, Mr Masri accepted that he had made a mistake and he went and obtained another Medical Certificate.
5. The submission of counsel for the defendant, that Mr Masri cannot find a copy of the certificate, that it was never provided to the insurer, and that it is not in the records of the general practitioner, is accepted. Be that as it may, I accept that Mr Masri held a belief that he had provided the certificate.
6. About half of the six-week period of delay is due to Mr Masri taking three weeks to go back to the doctor to get a medical certificate. I accept his explanation that he could not go straight back to the doctor, as he was trying to run his legal practice, with all of the disabilities he had at the time.
7. The meaning of the word "full" in s 66(2) of the Act is to be understood in the context of the purpose of the provision, which is to enable the court to evaluate the reasons for the delay: Walker v Howard [2009] NSWCA 408 at [57].
8. I find that Mr Masri has provided a full and satisfactory explanation within the meaning of s 66(2) of the Act.
9. In relation to the second limb of s 66(2) I must take into account that Mr Masri was a legal practitioner, and at a simplistic level, one would expect a legal practitioner to know or ascertain his legal rights when lodging a claim with an insurance company. However, I take into account the following: 1. Mr Masri ran a legal practice which largely dealt with crime, conveyancing and wills. 2. Mr Masri had little or no experience with claims under the Act. 3. Mr Masri was suffering from significant physical and mental disabilities at the time of lodging the Claim Form, including forgetfulness. 4. Mr Masri held a genuine, although ill-founded, belief that he had in fact obtained a certificate and that he had provided it to the insurer. In this he was mistaken, but that belief explains why Mr Masri submitted the Claim Form in the fashion he did. 5. I take these matters into account in assessing whether a reasonable person in the position of the claimant (a legal practitioner) would have failed to comply with his duty to lodge a complete Claim Form within six months or would have been justified in experiencing the delay in lodging a completed Claim Form.
10. Having regard to the problems and disabilities under which Mr Masri was labouring at the time of lodging the claim, I find that even though he was a legal practitioner, a reasonable person in his position would have failed to comply with the duty and would have been justified in experiencing the same delay.
11. In summary, I find that Mr Masri has satisfied the requirements of s 73(7) of the Act, in that I am satisfied that he has a full and satisfactory explanation for the delay in making the claim.
12. This means that the application by the insurer to dismiss the proceedings on the grounds of that delay, pursuant to s 73(5) of the Act, fails.

Consideration of the Explanation for Delay: Commencing Proceedings

1. I have recorded above my findings concerning the credibility of Mr Masri in his evidence regarding his explanation for delay. More than once in cross-examination Mr Masri said: "My life at the time was chaos". If anything, that was an understatement of what he was going through.
2. Through his affidavit evidence, which is much more detailed than the two initial emails or the two Statutory Declarations, Mr Masri has provided a complete account of the factors in his life which led to a delay in commencing proceedings. While the evidence on those matters has been summarised above, it is worthwhile to record that those factors include: 1. Mr Masri's own physical injuries and pain caused by the accident. 2. Mr Masri's memory and concentration problems, which were exacerbated by the strong pain medication he was taking. 3. Mr Masri's concerns for his father, and the help and assistance which he gave, in part because of family expectations and his obligation as the eldest child, to his father. 4. Similar considerations in relation to Mr Masri's mother. 5. Similar considerations in relation to Mr Masri's daughter, who suffered from a serious illness for a long period of time. 6. The lockdown in the second half of 2021 due to the COVID-19 pandemic, which was more severe in the western suburbs of Sydney where Mr Masri lived and had his practice. 7. The need to home-school his many children, while at the same time trying to run a legal practice from home. 8. Mr Masri's contraction of COVID-19, his admission to the Intensive Care Unit, and his subsequent and ongoing problems with breathing and stamina.
3. I acknowledge the criticisms of the delay experienced by Mr Masri, put forward by counsel for the defendant. With respect, it would have been expecting too much of a person under the pressures which Mr Masri had, to prioritise his own claim during the years in which he experienced delay in commencing proceedings. I formed the impression of Mr Masri that he was a dedicated family man, not just in relation to his wife and children, but also in relation to his parents. I accept him when he said in cross-examination that he has always put others first and himself last. If that sounds selfless, then it is. I accept that it is true.
4. Taking into account the affidavit evidence of Mr Masri, particularly PX 1, I find that he has provided a full and satisfactory explanation for the delay in commencing proceedings.
5. I also find that a reasonable person in his position would have experienced the same delay. I have referred above to the evidence regarding the competing claims upon Mr Masri's time, which have caused the delay in the present case.
6. I find that Mr Masri has provided a full and satisfactory explanation to the court for the delay in commencing proceedings. As a consequence, I propose to grant leave nunc pro tunc to commence his proceedings. This also means that the insurer's application to dismiss the Statement of Claim fails.

Costs

1. Mr Masri has come to court seeking an indulgence. The cross-examination of Mr Masri showed that there were issues which needed to be ventilated in relation to his explanations for delay. It was not until Mr Masri provided that his first affidavit (PX 1) that there was a full and satisfactory explanation for the delay in commencing proceedings.
2. The insurer has acted with complete propriety throughout and has been put to the expense of quite properly opposing the application brought by Mr Masri. A party seeking an indulgence from the court, when that indulgence is necessary as a result of their own delay, is usually obliged to pay costs. I see no reason to depart from that practice in the present case.

Orders

1. The orders of the court are as follows: 1. I find that the plaintiff has satisfied the court that he has a full and satisfactory explanation for the delay in making the claim. 2. I find that the plaintiff has satisfied the court that he has a full and satisfactory explanation for the delay in commencing court proceedings. 3. Grant leave to the plaintiff nunc pro tunc to commence proceedings by the Statement of Claim filed on 16 April 2022. 4. Order the plaintiff to pay the defendant's costs of the plaintiff's Notice of Motion filed on 14 April 2022 and the defendant's Notice of Motion filed on 31 May 2022. 5. Otherwise dismiss the defendant's Notice of Motion filed on 31 May 2022.

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 October 2022