Insurance Commission of Western Australia Act 1986 (WA), s 6(a)

Limitation Act 2005 (WA), s 39, s 39(3), s 39(3)(a), s 39(3)(b), s 39(3)(c), s 39(4), s 39(4)(b), s 39(4)(c), s 55, s 79(3)

Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 7(3)

Rules of the Supreme Court 1971 (WA), O 37 r 6(2)

AME Hospitals Pty Ltd v Dixon [2015] WASCA 63

Cunningham v Moorevest Pty Ltd [2016] WADC 38

Gale v East Metropolitan Health Service [2026] WADC 3

Ghiassi v Industrial People Pty Ltd [2012] WADC 23

Gill v Ethicon Sàrl (No 5) [2019] FCA 1905

Johnson v Ikea Pty Ltd [2026] WADC 4

Meo v Facial Plastic Surgery Pty Ltd [2025] WADC 88

Mullaley v The State of Western Australia [2020] FCA 13

Stuart v KBH Group Aust Pty Ltd [2026] WADC 9

Wardley Australia Ltd v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514

1. In 2022 Gerard McKelvie was involved in a car accident. The other car drove off. Mr McKelvie was unable to identify the driver of the other vehicle involved. A fellow motorist called Patrick witnessed the collision.
2. Mr McKelvie lodged an online crash report with the Insurance Commission of Western Australia (ICWA) reporting that he did not suffer any injury. ICWA sent an automated response to this report advising that if Mr McKelvie experienced symptoms and required treatment to liaise with ICWA further. That response included a hyperlink to a guide explaining ICWA's motor injury insurance claims process and directing that further information was available by telephone or online.
3. Subsequent to this, Mr McKelvie did experience some symptoms and received some treatment. He did not contact ICWA.
4. Mr McKelvie did not seek to proceed against ICWA pursuant to s 7(3) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) (MVA). This provides that where the identity of the other driver cannot be ascertained then Mr McKelvie can proceed directly against ICWA, provided that Mr McKelvie took steps to try and identify the other driver.
5. In 2025 Mr McKelvie was involved in a second collision. He sought legal advice. Mr McKelvie contends that it was only after receiving that legal advice that he became aware that it was possible to pursue ICWA in regard to the first collision.
6. However, Mr McKelvie contends this occurred after the limitation period for the first collision had expired.
7. Mr McKelvie now applies for leave to commence an action out of time directly against ICWA in regard to the 2022 collision. The chamber summons application indicates that this is brought under s 39(4)(c) of the Limitation Act 2005 (WA).
8. ICWA oppose the application and contend that both the Limitation Act and the Motor Vehicle (Third Party Insurance) Act require Mr McKelvie to have made some form of enquiry to attempt to identify the driver of the other vehicle.
9. ICWA contend that Mr McKelvie has not done so (or has not made sufficient attempts to do so) and therefore under either Act he is not entitled to proceed against ICWA or that the discretion to extend time is not enlivened.
10. The matter was called on to address various preliminary issues including how the two Acts interact and whether the approach taken by the court in Ghiassi v Industrial People Pty Ltd [2012] WADC 23 (Ghiassi) was open to be analogously applied in this situation.
11. The parties were invited to lodge further submissions (but not affidavits). Both parties did so.
12. Mr McKelvie in his submissions sought leave to amend his application to extend the limitation period in the alternative under s 39(3)(b) of the Limitation Act consistent with the approach taken by the court in Ghiassi.
13. ICWA maintained that Ghiassi is distinguishable on its facts and does not apply in this situation and that the application falls to be determined on the basis that Mr McKelvie has not made reasonable attempts to identify the driver of the other vehicle in the first collision.
14. In my view, I consider that Mr McKelvie can enliven the discretion to extend the limitation period to proceed against ICWA under s 39(3)(b) (but not (c)). However, I am not persuaded that he has led sufficient evidence to allow for any findings of fact as to when he was aware (or ought reasonably have become aware) that his injury was attributable to ICWA's conduct and I cannot therefore determine when the limitation period ought be extended from.
15. For that reason, the application must be dismissed.

1. To begin with, I grant Mr McKelvie leave to amend the application to include the alternative argument advanced under s 39(3)(b) of the Limitation Act.
2. The question of whether Ghiassi and s 39(3)(b) applies here was raised with the parties.
3. ICWA filed responsive submissions addressing the issues raised and responding to Mr McKelvie's submission as to s 39(3)(b) of the Limitation Act. ICWA did not object to the application for leave to amend the application but rather contended that s 39(3)(b) did not apply in this situation.
4. ICWA have been afforded an opportunity to address Mr McKelvie's request to amend his application (and the substance of those submissions). Given this, I cannot see that ICWA are prejudiced by the application being amended at this late stage and so grant leave to Mr McKelvie to do so.

1. The facts of the accident and Mr McKelvie's subsequent actions are not in controversy and I find them to be as set out above.
2. Furthermore, it is not disputed, and I find it to be so, that the driver of the vehicle that collided with Mr McKelvie in 2022 remains unidentified.
3. Both parties relied on affidavit evidence from their respective solicitors to which no objections were taken.[1] Mr McKelvie himself did not provide any affidavit evidence.
4. It appears that many of the necessary elements of an application under s 39 of the Limitation Act were assumed by the parties. Although no one took objection to this, neither was a formal agreement placed before me. In my view, these elements need to be canvassed to ensure I can be satisfied that the necessary elements required to ground the discretion to be exercised in s 39 are met (regardless of which of its subsections the application is brought under).

1. The preliminary matters required to establish an application under s 39 of the Limitation Act are:

(b) What date did the cause of action accrue (when did the personal injury occur or first clinical sign or manifestation of that injury arise) and (by extension) when did the limitation period expire?

1. If these matters are established, then consideration needs to be given to which limb of s 39 Mr McKelvie can proceed under:
   1. If under s 39(3)(c), is the discretion to extend time enlivened (by reference to whether Mr McKelvie made reasonable enquiry to identify the other driver)?
   2. If under s 39(3)(b), then this requires consideration of:

(a) whether Mr McKelvie's injury could be 'attributable to' the 'conduct' of ICWA; and

(b) whether at the time the limitation period expired Mr McKelvie was 'not aware' that his injury could be attributable to the conduct of ICWA.

1. If the discretion to extend time is enlivened under either s 39(3)(b) or s 39(3)(c), when did Mr McKelvie become aware (or ought reasonably have become aware) that his injury could be attributable to the conduct of ICWA, so the date from which the limitation period can be extended can be fixed under s 39(4)?

Preliminary matters required to establish the application under s 39

1. Mr McKelvie has the burden of persuading a court to extend the limitation period under s 39. See s 79(3) of the Limitation Act.
2. Mr McKelvie's reference to Wardley Australia Ltd v The State of Western Australia [1992] HCA 55; [1992] HCA 55; (1992) 175 CLR 514 and the undesirability of limitation issues being determined at an interlocutory stage where there are contested issues of fact is undoubtedly correct but seems to be advanced here more for the proposition that this is an apt case to determine the question of the limitation period now rather than later.
3. The affidavit evidence was unchallenged. I do not understand either party to be contending that this is a matter that is best left to the determination of the trial judge who will have the benefit of hearing and having all the evidence as to the limitations issues tested.
4. Section 14(1) of the Limitation Act provides that an action for personal injuries 'cannot be commenced if 3 years have elapsed since the cause of action accrued'.
5. Section 55 of the Limitation Act addresses the accrual of a cause of action for personal injury and states:

(1) A cause of action for damages relating to a personal injury to a person accrues when the only or earlier of such of the following events as are applicable occurs -

(a) the person becomes aware that he or she has sustained a not insignificant personal injury;

(b) the first symptom, clinical sign or other manifestation of personal injury consistent with the person having sustained a not insignificant personal injury.

1. Personal injury is defined as including 'a disease, impairment of a person's physical condition and mental disability'.
2. ICWA have filed the clinical records from Mr McKelvie's GP. The clinical notes establish that Mr McKelvie was suffering from an impairment of his usual physical condition and note that on 13 January 2022 Mr McKelvie attended his GP with a report of neck pain. The history taken references an 'MVA on Tuesday 1700' and that Mr McKelvie 'went home at [sic] neck pain and then next day it was worse'.
3. Is this sufficient to constitute a 'not insignificant personal injury' to crystallise the date of the accrual of Mr McKelvie's cause of action?
4. There is no evidence from Mr McKelvie himself in support of this application. However, it is stated in the evidence of Ms Akai, his solicitor, that Mr McKelvie's injuries from the first and second accident both included injury to the cervical spine and neck.
5. This is not an unequivocal unpacking of what injury was suffered in the first accident necessary to support a finding of there being a not insignificant personal injury.
6. It is not until 15 January 2022 that Mr McKelvie's GP recorded a suspected diagnosis of whiplash.
7. The previous diagnosis of pain and limited range of movement taken on 13 January 2022 are arguably descriptions of a symptom or clinical manifestation of a physical injury (being an impairment of the physical condition of the body) however of themselves they do not necessarily equate to a not insignificant physical injury.
8. In my view, as can be discerned from the GP's clinical notes, the ultimate diagnosis of whiplash constitutes a not insignificant physical injury and the reports of pain and soreness (including a restricted range of motion) constitute the first clinical signs of that not insignificant physical injury.
9. I am satisfied that Mr McKelvie has suffered personal injury.
10. What date did the cause of action accrue (when did the personal injury occur or first clinical sign or manifestation of that injury arise) and when did the limitation period expire?
11. Both parties appear to have assumed that the date the cause of action accrued was the date of Mr McKelvie's first accident, being 11 January 2022. Accordingly, both parties have assumed that the date of expiry of the limitation period is three years after that date and that Mr McKelvie is prima facie out of time to commence his action in respect of this issue.
12. However, this date was not formally agreed as a fact and in any event seems inconsistent with the evidence contained in the affidavits.
13. Mr McKelvie indicated on his online crash report form (lodged the same day as the accident) that no personal injury was involved.
14. Accordingly, the assumption that the date of accrual of the cause of action was the date of accident (or that the date of expiry of the limitation period was three years later on 11 January 2025) is not necessarily correct. See, for example, the recent analysis of s 55 in Stuart v KBH Group Aust Pty Ltd [2026] WADC 9 [61] - [65].
15. Ms Akai states that she is instructed that 'Mr McKelvie became aware of injuries and symptoms resulting from the accident in the days following'.
16. However, she does not state with precision what date this was.
17. On its own this is sufficient to support a finding of approximately when the cause of action accrued but not the specific date.
18. As noted, Mr McKelvie's GP noted that on 13 January 2022 Mr McKelvie reported experiencing neck pain. The history taken notes the accident on 11 January 2022 and that Mr McKelvie 'went home at [sic] neck pain and then next day it was worse'.
19. However, I am not certain when this first manifested.
20. Ms Akai's evidence (on Mr McKelvie's behalf) is that it occurred in the days following (rather than the day of) the accident. This is generalised and non-specific. The GP's notes seem to indicate that Mr McKelvie experienced pain immediately after the accident (although did not report it for several days after). However, Mr McKelvie makes no mention of this in his crash report and says he did not suffer any injury at all.
21. Mr McKelvie himself was the source of these inconsistent pieces of information.
22. In the absence of any further evidence it is not possible to reconcile this inconsistency and so I am unable to conclude whether the cause of action accrued (that is the first clinical sign or manifestation of a not insignificant personal injury arose) on 11 January 2022 or not.
23. Whilst it seems clear that it was a date around that time and that the limitation period had well expired by the time Mr McKelvie realised he could pursue ICWA directly under s 7(3) of the MVA, the actual date of the expiration of the limitation period ought to be ascertained because in the context of a s 39 application it is necessary that findings be made about a plaintiff's state of knowledge at the time the limitation period expired.
24. Notwithstanding the onus cast on Mr McKelvie as the party seeking the extension it is arguable that, in this instance at least, this is not necessary as the only thing that turns on this is the assessment of what Mr McKelvie knew as to who was responsible for causing his injury (under s 39) as of the date the limitation period expired.
25. As his awareness of ICWA's possible liability under s 7(3) of the MVA did not arise until well after either 11, 12 or 13 January 2025, it is not necessary to know which of these dates the first clinical sign or manifestation of his injury arose.
26. In my view, although the evidence does not support a finding as to the actual date the cause of action accrued in this instance, I am not persuaded that this is fatal to the application. On any view, I am satisfied the action was commenced out of time.
27. Although perhaps a generous approach to take in the circumstances, assuming for present purposes that the limitation period expired three years after either the date of accident or any time between when Mr McKelvie first attended upon his GP (being 11, 12 or 13 January 2025), what must then be considered is Mr McKelvie's relevant state of knowledge at those times in relation to the factors to be considered under s 39 of the Limitation Act.

Section 39 of the Limitation Act 2005 (WA) generally - which limbs of s 39 can Mr McKelvie proceed under?

1. In order to obtain leave under s 39 of the Limitation Act both subsection (3) and (4) s 39 - s 40 of the Limitation Act must be satisfied. Section 39(3) enlivens the discretion to extend time whereas s 39(4) provides a mechanism to determine when the limitation period may be extended from. See, for example, the approach taken in Gale v East Metropolitan Health Service [2026] WADC 3 [39] - [41].
2. Section 39(3) of the Limitation Act provides that:

(3) On an application a court may extend the time in which the action can be commenced if the court is satisfied that, when the limitation period expired, a person to whom the cause of action accrues -

(a) was not aware of the physical cause of the death or injury;

(b) was aware of the physical cause of the death or injury but was not aware that the death or injury was attributable to the conduct of a person; or

(c) was aware of the physical cause of the death or injury and that the death or injury was attributable to the conduct of a person but after reasonable enquiry, had been unable to establish that person's identity.

1. Section 39(3) of the Limitation Act is addressed in the negative and requires a lack of actual awareness. Mere suspicion will not suffice. It is adjudged as at the time that limitation period expired.
2. If these conditions are satisfied s 39(4) of the Limitation Act provides that the court may extend the limitation period for up to three years from when Mr McKelvie became aware, or ought reasonably to have become aware:

(a) of the physical cause of the death or injury;

(b) that the death or injury was attributable to the conduct of a person (whether a defendant or not); and

(c) of the identity of the person mentioned in paragraph (b).

1. To enliven the power to extend time under s 39(3) of the Limitation Act Mr McKelvie must prove at least one of the negatives provided for. However, to then determine the point from which any extension of the limitation period should run Mr McKelvie must then prove all of the matters in s 39(4) of the Limitation Act. See AME Hospitals Pty Ltd v Dixon [2015] WASCA 63 [18] - [19] (AME).
2. It is easy to consider that s 39(3)(a) - s 39(3)(c) of the Limitation Act are analogues of s 39(4)(a) - s 39(4)(c).
3. However, that cannot be the case as only one of the options available under s 39(3) need be established to enliven the discretion to consider whether time to commence an action might be considered but all of the factors under s 39(4) must be considered to determine if time should or can be extended.
4. Although working in tandem s 39(3) and s 39(4) of the Limitation Act do different things.
5. Section 39(3) of the Limitation Act enlivens the discretion to extend time based on the person's knowledge (or rather lack of knowledge) as at the time the limitation period expired (by reference to the criteria set out in s 39(3)(a) - s 39(c)) of the Limitation Act.
6. Section 39(4) of the Limitation Act fixes the time of any extension (for up to three years) from the date when a person knew or reasonably ought to have known of all the relevant factors required to proceed against a prospective defendant.
7. Furthermore, as only one of the factors under s 39(3) needs to be established it seems that there is no reason why more than one criterion could be established or that these could not be established in the alternative against different persons to whose conduct the injury was attributable.
8. As established in Ghiassi, subject to there being evidence of the relevant facts, this can be on the basis of some extended form of 'indirect' liability, such as vicarious liability.
9. It is usually contemplated that the person to whose conduct an injury is to be attributed under s 39(3) of the Limitation Act is considered to the person against whom the action is sought to be commenced out of time under subsection s 39(4) of the Limitation Act. It is in this fashion that s 39(4) of the Limitation Act might further be considered an analogue of s 39(3) of the Limitation Act.
10. This much is suggested by Gill v Ethicon Sàrl (No 5) [2019] FCA 1905 where the court noted that the use of the word 'person' in s 39(3)(b) (and s 39(4)(c)) of the Limitation Act relates to the defendant or proposed defendant in respect of whom an extension of the limitation period is required in order to bring an action against them. This seems to suggest that the person whose conduct is being assessed in s 39(3) of the Limitation Act must be the same person against whom the action is sought to be brought under s 39(4) of the Limitation Act. This is based on the Limitation Act's definition of 'defendant' which is 'a person against whom an action is brought or proposed to be brought'.
11. However, in Gill v Ethicon Sàrl (No 5) this was common ground between the parties and was not the subject of any deeper analysis. It is not apparent to me that the court had regard to the wording of s 39(4)(b) that the limitation period can be extended from the date a person (the prospective plaintiff):

[B]ecame aware, or ought reasonably to have become aware -

(b) that the injury was attributable to conduct of a person (whether a defendant or not) ...

(my emphasis added).

1. This suggests the person against whom the action is commenced under s 39(4) does not necessarily have to be the person whose conduct is the subject of consideration under s 39(3).
2. Textual support for this is found in the use of the words 'may extend time in which the action can be commenced' and the use of the words 'attributable to the conduct of a person' (my emphasis added).
3. An action can be commenced against any number of defendants. Although it makes sense that the persons against whom an action might be commenced be the same persons whose conduct enlivened the discretion to consider whether time ought to be extended this does not appear to be an express requirement of s 39.
4. If the relevant conduct to which regard were to be had was to be confined to the person(s) against whom the action was to be commenced it would arguably be so limited by the language used. In my view, it is not.
5. Of course, there must be some nexus to the prospective defendant in that the plaintiff's injury must be attributable to them by their conduct under some mechanism.
6. This seems to make further sense if one has regard to the operation of s 39(3)(c) and s 39(4)(c) of the Limitation Act.
7. As noted in Ghiassi the discretion under s 39(3)(c) can be enlivened where the person whose conduct to whom the injury is attributable remains 'truly anonymous' (see at [21]). At least in respect of the driver of the vehicle that collided with Mr McKelvie's car that is the case here.
8. However, if Mr McKelvie can enliven the discretion to extend time under s 39(3)(c) of the Limitation Act (which is not yet certain that he can) then, regardless of having succeeded in enlivening the discretion to extend the time by which he might bring an action, he may nevertheless be unable to proceed against the driver if he is not aware (and could never reasonably become aware) of the driver's identity. This is the effect if s 39(3) and s 39(4) are analogues of each other.[2]
9. Certainly, when (or perhaps more accurately, if) Mr McKelvie ever became aware of the driver's identity he could seek to purse the action against the driver at that stage (provided all other elements of s 39 of the Limitation Act were satisfied). However, this leaves him in limbo until such day ever comes. If such day never comes then he is without a remedy.
10. Accordingly, if some other mechanism provides Mr McKelvie a remedy (or an ability to pursue someone else to whose conduct his injury may be attributable) then I cannot see that he is prohibited from pursuing that on the construction of s 39 or as a matter of fairness or policy.
11. For these reasons it seems that Mr McKelvie may seek to enliven the discretion to extend time under any of the limbs of s 39(3) and, if he does so, to then seek to obtain an extension of time to pursue an action against a defendant he can identify whose conduct his injury can be attributed to under s 39(4), even if that is not the same (putative defendant) that enlivened the discretion under s 39(3).
12. In this regard I consider that he may seek to enliven the discretion under s 39(3)(c) or s 39(3)(b) and if successful can then seek to establish the date from and to which the limitation period might be extended to bring the action against ICWA under s 39(4)(b).
13. Of course, in regard to each he must satisfy the necessary requirements to enliven the discretion and establish the facts required to allow for determination of the date to which the limitation period might be extended to.

Is the discretion to extend time under s 39(3)(c) of the Limitation Act 2005 (WA) enlivened (by reference to whether Mr McKelvie made reasonable enquiry to identify the other driver)?

1. It is common ground between the parties that the identity of the other driver remains unknown. The affidavit evidence establishes that on either 11, 12 or 13 January 2022 Mr McKelvie:

(b) was aware of the physical cause of that injury (being the crash of 11 January); and

(c) was aware that this was attributable to the conduct of the unknown driver (being in charge of the vehicle that collided with his car); but

(d) had been unable to establish the other driver's identity.

1. The issue in contention is whether at the time the limitation period expired had Mr McKelvie made reasonable enquiry to try to establish the other driver's identity?
2. I accept, as contended by ICWA, that whether Mr McKelvie made reasonable enquiries 'is a threshold matter that must be established as a fact before the discretion to extend time is enlivened'; see Ghiassi [21].
3. Mr McKelvie contends that pars 7 - 11 of Ms Akai's first affidavit establishes that reasonable enquiries were made by Mr McKelvie and his solicitors. I accept that Mr McKelvie need not have made these enquiries himself and these can be (or could have been) made on his behalf.
4. However, that enquiry must have been made at (or before) the expiry of the limitation period.
5. Paragraphs 8 - 10 of Ms Akai's first affidavit do not assist. These events occurred after the time the limitation period expired (whether that was on any of 11, 12 or 13 January 2025). In any event, they do not speak to what efforts Mr McKelvie (or others) made; only that it is unlikely the driver can or will be identified.
6. Paragraph 7 of that affidavit relays Ms Akai's recollection of a telephone call she had with Mr McKelvie and his recollection of a phone call he had with Mr Simon Walters. Although the rules around hearsay evidence might be relaxed for the purposes of interlocutory applications (Rules of the Supreme Court 1971 (WA) O 37 r 6(2)) this seems to strain those rules and, in any event, contains no evidence of what steps anyone took to identify the other driver.
7. Paragraph 11 of Ms Akai's first affidavit equally does not assist as it seems directed to the matters relevant to s 39(4)(c) rather than the reasonableness of any enquiry to have been conducted under s 39(3)(c) of the Limitation Act.
8. Ms Akai's first affidavit (corroborated by the online crash report) establishes that the only witness to the crash was a 'Patrick' who advised Mr McKelvie of the 'accident circumstances and of the unknown driver - that the unknown driver was a female driving a gray Mitsubishi Pajero'; see at par 5(c). Patrick's phone number is recorded on the crash report.
9. However, there is no evidence of whether Mr McKelvie (or anyone else) followed up with Patrick or whether in fact Mr McKelvie made any enquiries of Patrick at the scene at all or whether this information was volunteered by Patrick.
10. ICWA's automated response to the online crash report provided Mr McKelvie with a phone number to call (albeit in regard to whether he suffered any injuries). Other than the online crash report the evidence does not establish that he contacted ICWA at all to see what investigations could be made. The only evidence of any action taken by ICWA around the time of the crash was the automated response to the crash report.
11. There is no explanation as to whether Mr McKelvie accessed the hyperlinked document on ICWA's automated response or what the contents of that document might be.
12. Ms Akai's second affidavit suggests that Mr McKelvie did make a Freedom of Information application of Police. However, this was made well after the limitation period expired (whether on any of 11, 12 or 13 January 2025).
13. It appears that Mr McKelvie invites me to infer that, because the driver has not been identified (and seems unlikely to ever be identified), Mr McKelvie's attempts to identify the driver must constitute reasonable enquiry as it is likely that no amount of enquiry could assist in this situation.
14. I do not accept that to be the case. The use of the word 'enquiry' in my view, requires some positive steps on the part of the person seeking to enliven the discretion. See Cunningham v Moorevest Pty Ltd [2016] WADC 38 [45]. That enquiry must have occurred prior to the limitation period expiring and indeed may be fruitless. However, in my view, what is evidenced rather is a lack of enquiry or steps taken after the date the limitation period expired that were easily and reasonably taken beforehand but were not.
15. In the circumstances, I am not satisfied that Mr McKelvie has led sufficient evidence to permit me to find as fact that at the time the limitation period expired he had made reasonable enquiry.
16. Accordingly, I do not consider the discretion to extend the limitation period under s 39(3)(c) of the Limitation Act is enlivened.

Is the discretion enlivened under s 39(3)(b) of the Limitation Act 2005 (WA) by reference to whether Mr McKelvie was not aware that his injury could be attributable to the conduct of another person (in this case the Insurance Commission of Western Australia)?

1. This requires consideration of whether Mr McKelvie's injury could be 'attributable to' the 'conduct' of ICWA and whether at the time the limitation period expired Mr McKelvie was 'not aware' that his injury could be attributable to the conduct of ICWA.

Can Mr McKelvie's injury be attributable to the conduct of the Insurance Commission of Western Australia?

1. This requires consideration of how s 7(3) of the MVA and s 39 of the Limitation Act interact. Mr McKelvie contended that these provisions operated harmoniously but did not explain how that might be so.
2. Although it is easy to see how s 7(3) might be applied within the limitation period this is not so obvious once the limitation period has expired. There is no seamless correlation between s 7(3) of the MVA and s 39 of the Limitation Act. Neither provision appears to expressly import the effect of the other.
3. Although both provisions seem to operate beneficially (if their terms can be satisfied) no unfairness to a driver in Mr McKelvie's position can be read into whether s 7(3) continues to operate by virtue of the extension provision of s 39 or not.
4. That is the same for all causes of action which have a limited time within which they can be commenced as of right. That leave is required after the expiration of the limitation period is neither unusual nor surprising and is the very reason for s 39.
5. The question to be answered though is: How does that leave operate and which section dictates the inquiry to be made at this stage of proceedings: s 7(3) of the MVA or s 39(3) of the Limitation Act?
6. Although s 7(3) provides a mechanism to proceed against someone other than the person who caused the relevant injury, in order for this to be a mechanism by which Mr McKelvie might enliven the discretion to extend time it must be established that Mr McKelvie's injury was attributable to the conduct of ICWA. That is, the question at this stage of proceedings must be looked at through the prism of s 39 of the Limitation Act, not s 7(3) of the MVA.
7. Put another way, s 7(3) of the MVA is a procedural provision that addresses who Mr McKelvie might sue and how he might be able to sue that person, in this case ICWA. It does not address when he might commence such an action. That remains governed by s 39 of the Limitation Act.
8. If so, the prescriptions of s 7(3) of the MVA do not fall to be addressed at this stage other than to observe that it provides a possible mechanism to allow Mr McKelvie to apply to the facts of his situation the process of assessment that must be followed to determine if the discretion to extend time under s 39 of the Limitation Act is engaged.
9. In this sense the manner in which s 39(3)(b) was applied in Ghiassi finds application here.
10. The physical cause of Mr McKelvie's injury is the actions of the unknown driver. As determined in Ghiassi [28]:

[T]he language of s 39(3)(b) does not require the court to find that the would-be respondent has 'caused' the relevant death or injury. All that is required is that the death or injury may be 'ascribed to as an effect or consequence' of the conduct of the person.

1. In Ghiassi, Mr Ghiassi worked for his own company as a driver and had an arrangement with another company called Country Carriers for haulage and delivery services. Country Carriers had a yard in Kewdale. Mr Stafford worked at the yard for as long as Mr Ghiassi had been delivering goods to and from that yard and for Country Carriers. To Mr Ghiassi's knowledge Mr Stafford worked full-time, five days a week.
2. One day Mr Stafford did not properly align a forklift to unload Mr Ghiassi's truck at the Kewdale yard and Mr Ghiassi was injured when he fell through the gap between the truck and the pallet on the forklift.
3. Mr Ghiassi assumed that Mr Stafford was an employee of Country Carriers and so he sued Country Carriers as being vicariously liable for Mr Stafford's error.
4. However, Country Carriers denied that Mr Stafford was an employee pleading that he was in fact employed by labour hire company Industrial People.
5. As here, knowledge of who might be named as a proper defendant only came to light after the limitation period expired.
6. Mr Ghiassi applied under s 39(3)(b) and s 39(3)(c) of the Limitation Act 2005 for leave to commence an action against Industrial People and the court determined that it was open for Mr Ghiassi to pursue Industrial People on the basis that, under the doctrine of vicarious liability, Mr Ghiassi's injury may be ascribed to them even if they were not the causal agent in relation to his injury. This was determined on the basis that at the time the limitation period expired Mr Ghiassi did not know of Industrial People's existence or relationship to Mr Stafford.
7. Accordingly, Mr Ghiassi's application turned on the operation of s 39(3)(b).
8. In Ghiassi a broad approach was taken to the application of vicarious liability (see at [29]) and that it served to render Industrial People indirectly liable for the actions of Mr Stafford.
9. Furthermore, it was Industrial People's 'conduct' in placing Mr Stafford at Country Carrier's yard that was considered critical.
10. This raises two issues relevant to the consideration of s 39(3)(b) as a mechanism by which Mr McKelvie might ground the discretion to extend time to commence an action.
    1. Does s 7(3) of the MVA have the effect of attributing to ICWA the effect or consequence of the unknown driver's actions?
    2. If it does, does the statutory mechanism of s 7(3) constitute 'conduct' on the part of ICWA that might serve to allow Mr McKelvie to attribute his injury to ICWA for the purposes of s 39 of the Limitation Act?
11. In my view, s 7(3) of the MVA creates a link between the injury that might have been caused by the actions of an unknown driver and an injured person's ability to pursue a remedy by commencement of an action or suit.
12. Whilst s 73 of the MVA does not have the effect of deeming the actions of an unknown driver to have been the actions of ICWA, s 39(3)(b) does not require such a step in order to ascribe to ICWA (as an effect or consequence of ICWA's conduct) the causal effects of the unknown driver in injuring Mr McKelvie.
13. In this fashion s 7(3) of the MVA serves to create a mechanism by which (in a similar fashion to the manner in which vicarious liability was applied in Ghiassi) Mr McKelvie's injury (being caused by an unknown driver) may be 'attributed to' the conduct of ICWA.
14. To my mind, it is of no consequence at this preliminary stage that the injury was required to have been caused by the unknown driver's negligence. Similarly, in my view, whether Mr McKelvie made the requisite inquiries under s 7(3) of the MVA is not relevant at this stage.
15. The question to be determined at this stage is not whether liability can ultimately be proven such that ICWA will be liable under s 7(3) of the MVA, but whether there is conduct to which Mr McKelvie's injury might be attributed such that the discretion to bring an action out of time might be enlivened.
16. Matters of 'negligence' and any inquiry under s 7(3) of the MVA are, in my view, matters reserved to the determination at trial of any action that might be commenced as a consequence of an extension of the limitation period granted under s 39 of the Limitation Act.
17. Unfortunately, Ghiassi is of less assistance in determining whether the statutory mechanism of s 7(3) of the MVA can be said to constitute 'conduct' on ICWA's part.
18. As set out above, I agree with Mr McKelvie's submission (at par 8 of his supplementary submissions) that s 7(3) is an analogue to how vicarious liability was applied in Ghiassi.
19. However, having established that s 7(3) of the MVA is sufficient to create some attributable link to render ICWA indirectly liable for the causative actions of the unknown driver, it must be remembered that it is the provisions of s 39 of the Limitation Act that must be considered in this instance, not s 7(3) of the MVA.
20. The link between the mechanism of attribution (s 7(3)) and Mr McKelvie's injury must be the conduct of the person to whom the injury is to be attributed. In this case, ICWA.
21. In Ghiassi [30] the court found that there was 'conduct' that met the criteria of s 39(3)(b) of the Limitation Act in that Industrial People took certain actions creating a factual connection between Mr Stafford's presence at the workplace and Industrial People's liability to be held responsible for his actions at the workplace.
22. Notwithstanding the analogy between the operation of s 7(3) of the MVA as it might be applied here and vicarious liability as it was applied in Ghiassi, the question remains: What is the relevant 'conduct' other than ICWA's existence and the operation of s 7(3)?
23. Ghiassi [26] contends that 'conduct' is a well-known ordinary English word of broad meaning.
24. In AME [213] Buss J stated that the 'conduct of a person, within s 39(3) and s 39(4), includes acts and omissions of the person'. This means that conduct can be a positive act of a person or something the person has failed to do.
25. The broad meaning alluded to in Ghiassi includes such things (when conduct is taken as a verb) to direct in action or course, manage, carry on, to direct as leader, to lead or guide to serve as a channel or medium (Macquarie Dictionary Online) or, to lead, command, direct, manage or to carry on (as in a transaction, process, business, institution and so on) (Oxford English Dictionary Online).
26. To begin with there is nothing to suggest that ICWA did anything in relation to cause Mr McKelvie's injury. Furthermore, as noted, s 7(3) of the MVA, is not a deeming provision.
27. The only thing that ICWA did was generate an automated response to Mr McKelvie's online crash report. Whilst this included reference to a hyperlinked guide and avenues of inquiry if Mr McKelvie had further questions, there is no evidence as to what information these might have led to or whether Mr McKelvie accessed these.
28. Although occurring after the expiration of the limitation period, ICWA did correspond with Mr McKelvie's solicitors indicating that the limitation period in regard to the first accident had expired and that he may need to bring an application to extend time if he wished to pursue a claim in relation to that accident. That correspondence is attached to Ms Akai's second affidavit.
29. In the context of the operation of s 7(3) of the MVA this might serve to support an inference as to ICWA's conduct, although it is not on its own compelling.
30. However, this raises the question whether 'conduct', in the broad manner in which the word can be used, is capable of capturing ICWA's management of the insurance scheme under the MVA as 'conduct' that might meet the criterion of s 39(3)(b) of the Limitation Act.
31. There is no affidavit evidence of this nor has anyone suggested that this might be a matter of common knowledge capable of simply being noted.
32. ICWA is defined in the MVA as the 'Commission' and means the body continued as the Insurance Commission of Western Australia under the Insurance Commission of Western Australia Act 1986 (WA).
33. That Act provides that the functions and powers of the Commission are (among other things) to issue, or cause to be issued, and undertake liability under policies of insurance as required by the MVA. See s 6(a) of the Insurance Commission of Western Australia Act.
34. This includes, provided certain conditions are satisfied, ICWA being pursued in lieu of an unknown driver under s 7(3) by virtue of its role managing the scheme of insurance under the MVA.
35. I note that in ICWA's correspondence to Mr McKelvie (sent after the limitation period expired) ICWA did not deny that it could not be pursued, only that an application for leave to pursue the claim out of time would have to be brought, as it now has.
36. I accept that there is no series of positive acts by which ICWA could be said to have conducted itself in this situation. However, that raises the question of whether the beneficial nature of s 7(3) of the MVA and the broad meaning of conduct requires any such acts (or omissions) on ICWA's part if ICWA has the function it does under s 6(a) of the Insurance Commission of Western Australia Act?
37. The mechanism of attribution in Ghiassi was the doctrine of vicarious liability. The relevant conduct that linked the vicariously liable employer to Mr Ghiassi's injury were the positive acts of employing Mr Stafford and directing him to be at work at that time and at that place. In that sense the existence of the employment relationship was but one aspect of the factual matrix. It required further facts to enliven the discretion under s 39(3)(b) of the Limitation Act.
38. Conceptually the employer could be seen as the (or possibly a) 'source' of the harm suffered. The employer first employed the person that caused the injury. In this way the injury can be attributed to the conduct of the employer in doing so.
39. The mechanism of attribution here is s 7(3) of the MVA. Having regard to the nature of the legislation and the broad meaning of the word 'conduct' it is open to conclude that Mr McKelvie's injury can be attributed to ICWA's conduct by force of the combination of s 7(3) and ICWA's role under the MVA itself.
40. In contrast to the possible 'source' position an employer may be in ICWA's place if the chain of attribution is not crystallised until after the harm has been suffered and the person who caused the injury cannot be located.
41. However, it is immaterial where (or more correctly when) along the continuum of attribution ICWA might fall, so long as the injury suffered can be attributed to ICWA's conduct.
42. I accept this might be seen as a generous finding lacking in support by reference to any superior authority. I am also aware that Ghiassi has been distinguished on its facts in other situations. See for example Meo v Facial Plastic Surgery Pty Ltd [2025] WADC 88. However, in the absence of any authority determining that Ghiassi is wrongly decided or ought not be followed I consider that the logic of Ghiassi is open for me apply and that the conclusion reached is open on the facts of this matter.
43. In this regard, I find that the discretion to extend time under s 39(3)(b) of the Limitation Act may be enlivened on the basis that Mr McKelvie's injury could be attributed to ICWA's conduct. Whether it is actually enlivened is a matter to which I now turn.

At the time the limitation period expired was Mr McKelvie 'not aware' that his injury could be attributable to the conduct of the Insurance Commission of Western Australia?

1. What must then be established is Mr McKelvie's awareness of that possibility at the time the limitation period expired.
2. As noted, it can be established that on either 11, 12 or 13 January 2022 Mr McKelvie was aware that he had an injury. At any of those times was Mr McKelvie unaware that his injury could be attributed to ICWA (as set out above)?
3. The evidence of Mr McKelvie's awareness of this is contained in an email sent to Ms Akai (after the limitation period expired) that he did not think he was eligible to make a claim on ICWA as he did not know who the other driver was.
4. I note this is not evidence of his knowledge given at the time the limitation period expired but afterwards. This is not otherwise clarified or narrowed by any of the other material contained in Ms Akai's affidavits.
5. Furthermore, it is not evidence that perfectly gels with the words of s 39(3)(b) of the Limitation Act. However, at its highest, it could be taken as evidence from which a lack of awareness of the operation of s 7(3) of the MVA may be inferred.
6. Furthermore, the fact that Mr McKelvie knew of ICWA and its overall role in the scheme of the MVA, such that he reported the crash to it but did not proceed to bring a claim because he thought he was ineligible to do so, suggests that he was not aware of ICWA's role in regards to s 7(3) of the MVA in relation to its function in managing the scheme of the MVA.
7. That he did not bring a claim within time, and the evidence of why he did not do so given very recently after the expiration of the limitation period, suggests that his level of awareness of whether his injury could be attributed to the conduct of ICWA after the limitation period was not materially different to his awareness of this at the time the limitation period expired.
8. However, I remain conscious that the obligation to prove that leave ought be granted lies with Mr McKelvie.
9. Furthermore, I am conscious that 'aware' requires a determination of whether Mr McKelvie had 'awareness or knowledge of the relevant fact or facts with sufficient confidence reasonably to justify, in all the circumstances, the commencement of proceedings against the proposed defendant on the relevant cause of action by the issue of the writ'. See AME [200].
10. Whilst the passage above is the oft cited passage relating to awareness advanced by Buss J the majority in AME (being McLure J with Newnes J agreeing) suggested an alternate form of words which leads to possibly a lesser test of awareness. See, for example, as was observed in Mullaley v The State of Western Australia [2020] FCA 13 [44] - [46] and in Johnson v Ikea Pty Ltd [2026] WADC 4 [134].
11. On either view, the matter is finely balanced (and perhaps indicates why such matters are often best left for determination at trial as Wardley Australia Ltd v The State of Western Australia reminds us) however, I consider that the evidence is sufficient to support a finding, if only by inference, that at the time the limitation period expired Mr McKelvie was not aware that his injury could be attributed to the conduct of ICWA.
12. Accordingly, I am persuaded that the discretion to extend the limitation period under s 39(3)(b) of the Limitation Act is enlivened.

If the discretion to extend time is enlivened under s 39(3) of the Limitation Act 2005 (WA), when did Mr McKelvie become aware (or ought reasonably have become aware) that his injury could be attributable to the conduct of the Insurance Commission of Western Australia so the date from which the limitation period can be extended can be fixed under s 39(4)?

1. However, having determined that the criteria to enliven the discretion under s 39(3)(b) of the Limitation Act are satisfied, I nevertheless consider that Mr McKelvie's application cannot succeed as I am not satisfied that Mr McKelvie has led sufficient evidence to establish the date at which he ought reasonably have been aware of ICWA and the ability to pursue it in lieu of the unknown driver.
2. As set out above, any consideration of the date from which the limitation period might be extended can only be in relation to ICWA as the driver of the other vehicle remains unknown.
3. It can be accepted that at all times Mr McKelvie knew of the physical cause of his injury and of the existence of ICWA.
4. The question is: When did he become aware (or ought to have reasonably become aware) that his injury could be attributed to ICWA?
5. Ms Akai's second affidavit does not assist and in any event purports to be sworn in service of Mr McKelvie's claim for damages pursuant to s 7(2) of the MVA.
6. Firstly, Mr McKelvie relies on s 7(3) of the MVA. In any event, no claim has yet been made and the affidavit is in fact sworn in support of the application for leave under s 39 of the Limitation Act.
7. Ms Akai's first affidavit (at par 11) states in a rather conclusionary fashion her belief as to when Mr McKelvie ought reasonably have been aware of the identity of the unknown driver and addresses Mr McKelvie's background and resources and ability to identify the unknown driver.
8. Such evidence is directed to the wrong inquiry as it is not the unknown driver that Mr McKelvie seeks to commence the action against but rather ICWA.
9. Accordingly, evidence of his awareness of the identity of the unknown driver or when he ought reasonably have been aware of the identity of the unknown driver does not assist Mr McKelvie as in order to proceed against ICWA under s 39 of the Limitation Act (via the mechanism of s 7(3) of the MVA) it is his awareness of ICWA and whether his injury was attributable to the conduct of ICWA that he needs to establish his awareness of or when he ought to have reasonably been aware of this.
10. It should be noted that Ms Akai's affidavits were made at a time when Mr McKelvie had not contemplated an argument under s 39(3)(b), only s 39(3)(c) of the Limitation Act.
11. In any event, I do not consider that they assist in determining the date of Mr McKelvie's awareness of his injury being attributable to ICWA's conduct.
12. For example, at par 6 of Ms Akai's first affidavit, she states that it was only after his second crash that Mr McKelvie 'first attended the Simon Walters Solicitor offices on 7 February 2025'.
13. At par 7 of Ms Akai's first affidavit, she states that:

In my telephone conversation with the Plaintiff on 10 April 2025, he advised that it was during his discussion with Simon Myer Walters when he first became aware that a claim for personal injuries can be made for hit and run motor vehicle accidents.

1. To begin with, there is no evidence in the affidavit of when Mr McKelvie spoke to Mr Walters. Certainly Ms Akai attests that he attended Mr Walter's offices on 7 February 2025 and that on 10 February 2025 Ms Akai confirms that Mr McKelvie had spoken to him.
2. However, the use of the word 'first' attended does not import the notion of an 'only' attendance. Did Mr McKelvie subsequently attend Mr Walter's offices? Furthermore, it is not clear if he indeed spoke to Mr Walters on 7 February 2025.
3. I also note that what is attested to in regard to Mr McKelvie's awareness is 'that a claim for personal injuries can be made for hit and run motor vehicle accidents'. See par 7 of Ms Akai's affidavit. However, this is not the equivalent of evidence that Mr McKelvie was aware of ICWA's conduct or that his injury could be attributed to that conduct.
4. Again, this perhaps is the effect of the affidavit being drafted in support of an application under s 39(3)(c) of the Limitation Act; that is, for an action against the unknown driver. For example, at par 11 Ms Akai's first affidavit states that she believes:

[T]hat the date on which [Mr McKelvie] ought to reasonably have become aware of the identity of the person whose conduct his injuries were attributable to, is after he became aware of his entitlement to make a claim for personal injury for the accident and on 10 April 2025 when his legal representative asked the Commission about the identity of the unknown driver.

1. However, again, as the identity of the driver remains unknown, how can Mr McKelvie commence an action against that driver? He cannot and so this date cannot be the relevant date of awareness in relation to his ability to commence against ICWA.
2. Ms Akai attests in her second affidavit (at pars 10 and 11) that after Mr McKelvie found out he could make a claim against ICWA he gave notice of his intention to do so. Ms Akai says this is evidenced by correspondence from Mr McKelvie's solicitor dated 12 February 2025.
3. Whilst that correspondence may have been the result of Mr McKelvie becoming aware he could claim against ICWA it does not provide any evidence as to when he became so aware.
4. This also serves to introduce two possible dates (or date ranges) that Mr McKelvie contends the limitation period may be extended from under s 39(4) of the Limitation Act.
5. At par 7 of Ms Akai's first affidavit, she states that the date Mr McKelvie first became aware that he could claim for personal injuries for hit and run motor vehicle accidents after 7 February 2025 when Mr McKelvie 'first' attended Mr Walter's offices. Read together with Ms Akai's second affidavit (at par 11 this must be between 7 and 12 February 2025.
6. At par 11 of her first Affidavit Ms Akai states that this date was 10 April 2025 (as noted in [186] above).
7. Mr McKelvie's third set of submissions contends that at the time the limitation period expired he was not aware that his injury was attributable to ICWA.
8. That has been accepted given I have found the discretion enlivened. In any event, that is both only a submission and a submission made in relation to the operation of s 39(3)(b) of the Limitation Act. It is not evidence that assists in determining when Mr McKelvie became aware of the factors that must be found under s 39(4).
9. In my opinion, the affidavit evidence advanced by Ms Akai does not allow me to find as fact precisely when Mr McKelvie became aware (or ought reasonably have become aware) that his injury was attributable to ICWA; firstly, because of the variations in the evidence as to when Mr McKelvie actually spoke to Mr Walters (as opposed to first attended Mr Walter's offices) and, secondly, in any event, the evidence of Mr McKelvie's awareness is framed by reference to the identity of the unknown driver rather than any awareness of ICWA and its conduct and how his injury could be attributed to ICWA.

1. Notwithstanding that Mr McKelvie has not established the precise date on which his cause of action might be said to have accrued I am satisfied that he suffered a personal injury and that the limitation period in respect of that injury expired on either one of 11, 12 or 13 January 2025.
2. I am satisfied that it is arguable that Mr McKelvie might seek to enliven the discretion to extend time in which to bring his action under either of limbs s 39(3)(b) or s 39(3)(c) of s 39(3) of the Limitation Act and has done so in relation to the alternate argument raised against ICWA under s 39(3)(b).
3. However, I am not persuaded that the evidence relied on by Mr McKelvie establishes either the date or his state of awareness of the factors to be considered under s 39(4) of the Limitation Act to fix the date from which the limitation period ought be extended against ICWA (being the only defendant Mr McKelvie seeks an extension of time against).
4. As I am unable to make the findings necessary to support an extension of time under s 39(4) of the Limitation Act, the application must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Being the affidavits of Mesdames Soding, Hungerford & Murray for ICWA and two affidavits of Ms Akai for Mr McKelvie.

[2] That is unless there is a corollary between having made 'reasonable enquiry' being a basis for establishing the point in time that Mr McKelvie 'ought reasonably have become aware' of the driver's identity. However, I do not consider that to be so. If it had been intended that these were to mean the same thing then why have the same words not been used?