Judgment
1 SANTOW JA: I agree with Ipp JA both in his reasons and in the orders he proposes. I would however wish to add these observations. Amongst the objects of the Motor Accidents Compensation Act 1999 (NSW) ("the Act"), reference may also be made to s5(1)(b) with its invocation to "encourage the early resolution of compensation claims".
2 Section 6 of the Act requires that in the interpretation of a provision of the Act, a construction that would promote the objects of the Act is to be preferred to a construction that would not promote those objects.
3 The significance of that object in the present context can readily be appreciated when one draws a time line to reflect the forensic steps that are now mandated by the Act. A particular point in the time line to which s110 is directed is the period commencing eighteen months after the date of the motor accident to which the claim relates: see s110(1)(b).
4 Section 110(2) then provides that the claimant under the Act must comply with the notice in s110(1). This requires the claimant to commence court proceedings in respect of the claim, once the eighteen months to which I have referred has elapsed. It adds a further three months to the time line by which such proceedings must commence.
5 The effect of the construction which was pressed by the opponent in these proceedings was that for the period from the twenty-one months to which I have referred to thirty-six months (when the limitation period expires), there would be no provision in the Act which would fulfil the object to which I have earlier made reference. The object is "to encourage the early resolution of compensation claims". That would entail in effect that for fifteen months a party may go to sleep on his or her claim with only the requirement of s109 of the Act as the ultimate sanction should thirty-six months be exceeded. That mandates a lacuna of fifteen months. That interpretation would, as I have said, be not one which promotes the objects of the Act but would pro tanto frustrate those objects.
6 Against that background one turns to the language of s110 and in particular subs (5) which reads as follows:
"(5) The court may reinstate the claim if the court is satisfied that the claimant has a full and satisfactory explanation for the failure to comply with the notice."
7 That provision in turn must be read compatibly with s66(2) of the Act which I quote below:
"(2) In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay."
8 Section 6 of the Interpretation Act necessarily entails that one substitutes in s66(2) of the Act for the words "from the date of the accident" the words "from the date of the notice". There is however no basis for ignoring the concluding words "until the date of providing the explanation". To do so would create the lacuna to which I have earlier made reference.
9 There are other indications in s66(2) that the explanation that is required is one which does not stop at the three months in s110(2). Importantly, reference is made in s66(2) to "a full account of the conduct, including the actions, knowledge and belief of the claimant...until the date of providing the explanation" [emphasis added].
10 An account of conduct after the three months may work both for or against the claimant in terms of explanation. The wording of s66(2) clearly points against artificial segmentation of the conduct. That artificiality would be the result were conduct not to be explained from the point the three months expired. One might for example envisage conduct of a continuing kind. It could be either delay of the kind that would work against the claimant, or of exculpatory circumstances explaining that delay working in favour of the claimant. In either case it would be artificial in the extreme to limit the explanation to that which occurred over the three months. It would moreover be in direct conflict with the object of forensic diligence to which I have referred.
11 I should add that the definition of full and satisfactory explanation includes an important normative second limb, contained in the last sentence. That second limb is premised upon the conduct of a reasonable person in the position of the claimant and whether such a person would have been justified in experiencing the same delay. That objective and normative requirement, to work in a logical fashion, could not be expected to focus only on the three months referred to in s110(3). Moreover, if the interpretation pressed by the opponent were correct, it would equally apply with similar anomalous results to s70(2) of the Act.
12 In those circumstances it is unnecessary to consider whether the word "may" in s110(5) is of a permissive character such that, if a full and satisfactory explanation is given in terms of the Act, the court yet retains a discretion not to reinstate the relevant claim. The interpretation of s110(5) which I prefer obviates the need to consider whether such an ultimate residual discretion would be needed to be invoked in order to overcome the anomalies which the opponent's interpretation would entail. It is therefore better to leave that question for resolution for a case that requires it.
13 Accordingly I would agree with the orders proposed by Ipp JA.
14 IPP JA: This is an application for leave to appeal and, if granted, an appeal against a judgment of Hughes DCJ.
15 The dispute between the parties concerns s 110 of the Motor Accidents Compensation Act 1999 (NSW) ("the Act"). This section provides:
"(1) The insurer of a person against whom a claim is made may give the claimant notice requiring the claimant to commence court proceedings in respect of the claim if:
(a) the claimant has been entitled to commence the proceedings for a period of at least 6 months, and
(b) at least 18 months have elapsed since the date of the motor accident to which the claim relates.
(2) The claimant must comply with the notice within 3 months after its receipt.
(3) If the claimant does not comply with the notice as required by this section, the claimant is taken to have withdrawn the claim.
(4) A claimant whose claim is taken to have been withdrawn by the operation of this section may apply to a court of competent jurisdiction for reinstatement of the claim.
(5) The court may reinstate the claim if the court is satisfied that the claimant has a full and satisfactory explanation for the failure to comply with the notice."
16 Ms McNamara, the claimant, contends that Hughes DCJ wrongly held that the opponent, Ms Fitzgibbon, gave a full and satisfactory explanation as required by s 110(5) for her failure to comply within three months with a notice given to her in terms of s 110(1) by Ms McNamara's insurer.
17 On 19 September 2001 Ms Fitzgibbon was injured in a motor vehicle accident. She alleges that her vehicle was struck in the rear by a vehicle driven by Ms McNamara, and also that Ms McNamara admitted liability for the damages that were thereby incurred.
18 On 21 November 2001 Ms Fitzgibbon made a claim against Ms McNamara. On 10 May 2002 Ms McNamara's insurer wrote to Ms Fitzgibbon denying that Ms McNamara was at fault in the accident. Ms Fitzgibbon thereupon retained solicitors, Stacks - The Law Firm, to represent her.
19 By the Act, Ms Fitzgibbon was required initially to prosecute her claim for damages by way of the claims assessment and resolution procedures laid down in Pt 4 of the Act. By letter dated 3 September 2002, the Claims Assessment and Resolution Service of the Motor Accidents Authority provided Stacks with a certificate issued under s 92(1)(a) of the Act exempting Ms Fitzgibbon's claim from assessment "due to the denial of liability of the insurer".
20 By letter dated 31 March 2003, Ms McNamara's insurer gave Ms Fitzgibbon notice in terms of s 110(1) of the Act requiring her to commence proceedings within three months. It is common ground that the conditions empowering the giving of such a notice under s 110(1) had been fulfilled. Accordingly, by s 110(3) read with s 110(2) of the Act, were Ms Fitzgibbon not to commence court proceedings in respect of her claim within three months after 31 March 2003, she would be taken to have withdrawn her claim. In effect, Ms Fitzgibbon was required to commence proceedings by 30 June 2003.
21 At the time the notice of 31 March 2003 was given, Ms Fitzgibbon was being represented by Mr Goudkamp, a solicitor in the employ of Stacks. In an affidavit made by Mr Goudkamp, he stated that, after receipt of the s 110(1) notice dated 31 March 2003, he advised Ms Fitzgibbon against commencing court proceedings and suggested to her that she lodge an application for "general assessment" by the Claims Assessment and Resolution Service of the Motor Accidents Authority. He explained:
"The reason for this is that I did not think that the expense of suing two insurers was justified, given the relatively minor nature of [Ms Fitzgibbon's] injuries. Further, and more importantly, I was not able to certify that she had reasonable prospects of succeeding against either insurer, and therefore I would have been in breach of s 198L of the Legal Profession Act 1987 (NSW) if I had commenced court proceedings on [Ms Fitzgibbon's] behalf."
22 Mr Goudkamp testified that, on 16 July 2003, Ms Fitzgibbon's application for general assessment was rejected. On 23 July 2003 Mr Goudkamp met with Ms Fitzgibbon and her husband. He said that he advised her to discontinue her claim. He testified:
"I also advised her against commencing proceedings, due to the difficulties in establishing which vehicle was at fault, and due to the minor nature of her injuries."