Said Jawid Adilzada v The Nominal Defendant

Relevant Legislative Provisions 23The late-making of claims is covered by s 73 of MACA which 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. (2) Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation. (3) If a late claim is made, the claim cannot be referred for assessment under Part 4.4 unless: (a) the insurer has lost the right to reject the claim on the ground of delay, or (b) a claims assessor has, on the assessment of a dispute as to whether a late claim may be made in accordance with this section, assessed that the claimant has a full and satisfactory explanation for the delay in making the claim, or (c) the claim is referred only for a certificate of exemption from assessment under Part 4.4. (4) The insurer loses the right to reject a late claim on the ground of delay if the insurer: (a) does not, within 2 months after receiving the claim, reject the claim on the ground ofdelay or ask the claimant to provide a full and satisfactory explanation for the delay,or (b) the claim is referred only for a certificate of exemption from assessment under Part 4.4. (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. (6) An application to have proceedings dismissed on the ground of delay cannot be made more than 2 months after the statement of claim is served on the defendant and received by the insurer and also cannot be made if the insurer has lost the right to reject the claim 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. 24Section 109 provides relevantly as follows: "109 (1) A claimant is not entitled to commence proceedings in respect of the claim more than three years after: (a) The date of the motor accident to which the claim relates or ... (b) Except with the leave of the court in which the proceedings are to be taken. (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 s 134 as at the date of the relevant motor accident. 109 (2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until two months after a certificate as to the assessment or exemption from assessment is issued." 25The operation of s 109 is governed by the definition of a "full and satisfactory explanation" contained in s 66 (2) as follows: "66 (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 who have complied with the duty or would have been justified in experiencing the same delays." 26Section 34A is relevant to the issue of due inquiry and search. It provides as follows: "34A Rejection of claim for failure to make due inquiry and search to establish identity of vehicle (1) If due inquiry and search has not been made to establish the identity of the motor vehicle concerned, a claim against the Nominal Defendant under section 34 cannot be referred for assessment under Part 4.4 unless: (a) the Nominal Defendant has lost the right to reject the claim for failure to make that due inquiry and search, or (b) a claims assessor has, on the assessment of a dispute as to whether the claim may be rejected for failure to make that due inquiry and search, assessed that due inquiry and search has been made, or (c) the claim is referred only for a certificate of exemption from assessment under Part 4.4. (2) The Nominal Defendant loses the right to reject a claim for failure to make due inquiry and search to establish the identity of a vehicle if the Nominal Defendant: (a) does not, within 2 months after the claim is made, reject the claim for failure to make that due inquiry and search or ask the claimant to make that due inquiry and search, or (b) does not, within 2 months after being notified of efforts to establish the identity of the vehicle, refuse to accept that there has been due inquiry and search to establish the identity of the vehicle. (3) If court proceedings are commenced on a claim against the Nominal Defendant under section 34, the Nominal Defendant may apply to the court to have the proceedings dismissed on the ground that due inquiry and search to establish the identity of the vehicle has not been made. (4) An application to have proceedings dismissed on that ground cannot be made more than 2 months after the statement of claim is served on the Nominal Defendant and also cannot be made if the Nominal Defendant has lost the right to reject the claim on that ground. (5) On an application to have proceedings dismissed on that ground, the court must dismiss the proceedings unless satisfied that due inquiry and search to establish the identity of the vehicle has been made. (6) In this section, a reference to an insurer includes a reference to the person against whom the claim is made."

The Plaintiff's Submissions 27The plaintiff has submitted that he was born on 22 December 1988 in Afghanistan, and had arrived in Australia the year before the accident. He was still at school and had limited English. 28The plaintiff submitted that he had sustained severe injuries and from February 2008 his interests were being looked after by his father, who consulted the Griffith Migrant Settlement Services. Ms Margaret King, on behalf of that service, completed a claim form which was sent to the insurer on 13 February 2008, in compliance with s 73 of MACA. 29Thereafter, somewhat extraordinarily, the plaintiff's claim against the insurer was conducted by the Griffith Migrant Settlement Services. This included entering into negotiations on behalf of the plaintiff to settle his claim against the CTP insurer of the vehicle driven by his brother Mohajid. 30It was only following the issuing of the s 81 certificate by that insurer on 1 December 2009 and its advice that the plaintiff should pursue a claim against the Nominal Defendant, that his father sought legal advice on his behalf. That advice was sought from Messrs Vaezi & Partners, solicitors in Adelaide. 31On 10 February 2010 solicitors acting on behalf of the Nominal Defendant wrote to Vaezi & Partners requesting a full and satisfactory explanation for the delay. 32The plaintiff's solicitors provided the details of due inquiry and search by letter dated 30 March 2010 which was rejected by the Nominal Defendant by letter dated 10 May 2010. 33In the same letter, solicitors acting on behalf of the Nominal Defendant requested the statutory declaration in respect of late lodgement of the claim. A further request was made for that explanation by letter dated 19 July 2010. 34The explanation for the delay was provided by way of statutory declaration by the solicitor acting on behalf of the plaintiff made on 15 October 2010. 35By letter dated 18 October 2010, (the day the time limit for bringing proceedings expired), solicitors acting on behalf of the Nominal Defendant advised that the plaintiff's explanation was rejected for the following reasons:

• "No explanation in relation to the delay from your client
• Insufficient details about treatment received
• Insufficient details in the chronology of events, there are no details of your client's actions from October 2007 to February 2008, and again from February 2008 to December 2009 (a period of almost 2 years), there is also no explanation for the period from lodgement of the claim form to the date of providing the explanation
• Insufficient details about the advice your client received prior to seeking advice from your office
• Your client's explanation does not justify the delay. We would be pleased to reconsider our position if you provide further information addressing the above issues." 36The plaintiff, through his Senior Counsel, submitted that the further particulars were provided to the Nominal Defendant by letter dated 28 June 2010. (Annexure M to the affidavit of Jason Di Michiel sworn on 22 March 2012). Notwithstanding that that letter was referring to the claim of Said Mujahid Adilzada (sic), it was submitted that the substance of the letter was clearly common to both claims. 37It was further submitted that by the time solicitors were instructed in the matter the trail had gone cold, and that there was no obligation on the plaintiff to embark on due inquiry and search which amounted to no more than an unproductive ritual, relying on Harrison v Nominal Defendant (1976) 50 ALJR 330, and Nominal Defendant v Meakes [2012] NSWCA 66. 38In respect of s 34A, the plaintiff submitted that as the Nominal Defendant had lost the right to reject the claim of Said Mohajid Adilzada, the Nominal Defendant should not have been allowed to re-litigate the question of due search and inquiry in respect of this claim, relying on Rippon v Chilcotton (2001) 53 NSWLR 198. It was submitted on behalf of the plaintiff that it was not open for the Nominal Defendant to rely on s 34A(3), (4) and (5) as it had not, within two months of receiving the letter dated 28 June 2010 referred to above, advised that it rejected the reasons set out therein. Alternatively, it was submitted that s 34A had been satisfied in any event, relying on Harrison v Nominal Defendant, supra. 39Finally, it was submitted that the Court should exercise its discretion to grant leave in the circumstances. There was no actual prejudice relied on by the defendant, and there had been a trail of investigation on foot from three months following the accident once NRMA Insurance Limited, an authorised licensed insurer, was put on notice.

The Defendant's Submissions 40Counsel for the defendant submitted that the letter dated 28 June 2010, referring to Mohajid Adilzada's claim, was not relevant to the claim by the plaintiff. There had been correspondence between the defendant and Vaezi & Partners, solicitors, acting on behalf of the plaintiff, culminating in a letter dated 19 July 2010 from the defendant (annexure F to the affidavit of Ian Robert Jones sworn on 21 August 2012) which advised that the plaintiff had not provided a full and satisfactory explanation for the late lodgement of his claim form, nor had he provided details in compliance with "due search" or particulars. There had been no response to that request, however, the plaintiff's solicitor had, by statutory declaration made on 15 October 2010, provided some explanation for the delay (annexure H). 41The Nominal Defendant's letter dated 18 October 2010 to Vaezi & Partners (annexure I) clearly rejected that explanation and preserved the insurer's rights. 42The defendant has submitted that there is no evidence from either the plaintiff or his present solicitor as to what knowledge if any the plaintiff had in respect of time limits. It is clear that the plaintiff and his father were initially assisted by the Migration Settlement Service in Griffith and there is no evidence of that service providing advice as to time limits. It was not until the NRMA issued the s 81 notice in late 2009 that the plaintiff first sought legal advice in the matter, from Vaezi & Partners in Adelaide. It was submitted that there is no evidence from the plaintiff that he was not aware of the time limits, and that that cannot be inferred from the evidence. 43Notwithstanding that proceedings in the related matter were commenced on 25 July 2011, the plaintiff did not commence his proceedings until 13 July 2012. The explanation for the delay from April 2011 until July 2012 rests on a mere assertion by the plaintiff's solicitor that he undertook "various tasks". 44Counsel for the defendant submitted that the proceedings should be dismissed pursuant to s 34A(3) on the basis that due inquiry and search to establish the identity of the vehicle has not been made. Relying on Nominal Defendant v Meakes, supra, Counsel for the defendant submitted that the search that was undertaken 31 months following the accident by the placing of various advertisements in regional newspapers could not amount to due inquiry and search. Further, the matter could not be determined on the basis of Harrison v Nominal Defendant, supra, that is, that any search undertaken would be futile in the circumstances. 45The defendant further submitted that the Police report here did not assist the plaintiff. There was therefore a failure to comply with s 34 of MACA and the proceedings should be dismissed pursuant to s 34A(3). 46In respect of the late claim, the plaintiff was required to make a claim within six months, namely, by 18 April 2008. The claim was not made against the Nominal Defendant until 25 January 2010 and there was no full and satisfactory explanation for that delay. The proceedings should therefore be dismissed pursuant to s 73(5). 47Counsel submitted that whilst there had been evidence of the plaintiff's actions in the interim period, there was no evidence as to his knowledge and belief. The explanation set out in the plaintiff's affidavit sworn on 7 October 2012 was that he had left matters to his lawyers. It was also relevant that he had already gone through the process of a CTP claim with another insurer, i.e. NRMA Insurance Limited. It was submitted that the explanation should cover the period from the time of the accident up until the time when the claim was made for leave to be granted pursuant to s 109. However, in this case, once the limitation period had expired on 18 October 2010, it was submitted that time had become "of the essence" and that the explanation provided by the plaintiff's solicitor as to what occurred following October 2010 could not amount to a full and satisfactory explanation.

Plaintiff's Submissions in Reply 48Senior Counsel for the plaintiff submitted that the period from April 2011 until June 2012 was explained by the plaintiff's solicitor who had not been cross-examined. Further, whilst the plaintiff had been cross-examined, nothing had been put to him about his understanding or knowledge and belief. No submission had been made that the plaintiff should have taken steps to hurry his solicitors up, and if the Court held that the plaintiff's solicitors had been tardy in bringing the claim, there was no evidence that the plaintiff should have been aware of that. Further, there was no evidence in any event to rebut the plaintiff's solicitor's contention that he was attending to tasks to prepare the matter for hearing. 49It was submitted that the substantive reason for the delay was that the plaintiff had been assisted by the Griffith Migration Service's Coordinator in bringing a claim against NRMA Insurance Limited which culminated in that insurer denying liability at the end of 2009. By early 2010, when the plaintiff did obtain legal advice, the trail was well and truly cold, e.g. the prospect that a neighbour might identify the vehicle was so remote it could be ignored, relying on Nominal Defendant (NSW) v Skrypka (1990) 11 MVR 155. In those circumstances, Harrison v The Nominal Defendant, supra, applied, and the steps taken to establish due inquiry and search were sufficient. 50Finally, as there had been no cross-examination of the plaintiff as to his knowledge, there was no evidence upon which the Court could conclude that he had knowledge of the time limits involved at any relevant time.

Legal Principles 51The first two prayers for relief in the Notice of Motion filed by the defendant give rise to a determination of the same question, namely, whether the plaintiff has provided a full and satisfactory explanation for the delay. The delay pursuant to s 109 is any delay leading to the commencement of proceedings more than three years after the date of the motor accident. The delay referred to in s 73 is the delay in making the claim. Both sections however, call for a full and satisfactory explanation for that delay. 52As set out in my judgment in the related matter (Said Mohajid Adilzada by his next friend Said Taqee Adilzada v The Nominal Defendant), the principles to be applied are well settled following the Court of Appeal's decision in Walker v Howard (2009) 78 NSWLR 161. The definition of full and satisfactory explanation set out in s 66(2) of MACA refers to both and mandates 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". It is clear that the explanation should be full so as to enable the Court to evaluate the reasons for the delay, and that all relevant information should be provided. The test for determining whether the explanation is satisfactory is whether a reasonable person in the claimant's position would have been justified in experiencing the delay (Walker v Howard per Allsop P at [108]). 53As also set out in my judgment in the related matter, the Court of Appeal held in Smith v Grant [2006] NSWCA 244 that the authorities established that a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, and that such reliance could provide a satisfactory explanation for delay in commencing proceedings. 54Section 34A(3) of MACA enables the Nominal Defendant to apply to have proceedings dismissed on the grounds that due inquiry and search to establish the identity of the vehicle has not been made. Pursuant to s 34A(5), the court must dismiss a proceedings unless satisfied that due inquiry and search has been made. 55Neither party referred me to any authority on the construction of s 34A. The section, however, is clear on its terms, and requires a determination of whether due inquiry and search to establish the identity of the vehicle has been made. Otherwise, the Court is obliged to dismiss the proceedings. 56In Nominal Defendant v Meakes, supra, Basten JA, with whom McColl and Sackville AJA agreed, reviewed the authorities regarding the construction of s 34 of MACA, and its predecessors which created a cause of action against the Nominal Defendant, a condition precedent of which was that there must have been due inquiry and search for the purpose of identifying the alleged unidentified motor vehicle. Basten JA at [38] referred to the High Court's decision in Harrison v Nominal Defendant, where the Court held that "the question is whether the identity of the vehicle causing the injury cannot, after due inquiry and search, be established. It is not whether the plaintiff knew of such inquiries and search as might have taken place or of their result". His Honour also noted that the High Court had adopted an approach that did not require steps to be taken which would amount to no more than an unproductive ritual. 57At [45] Basten JA said as follows: "45 The most recent consideration of the 'due search and inquiry' provision in this Court appears to have been Nominal Defendant v Swift [2007] NSWCA 56. In that case, it was impossible for the plaintiff at the time of the accident, to identify the vehicle responsible for forcing him off the road. The Court upheld the finding of the trial Judge that there had been due inquiry and search by notifying the police, given that the case was one of 'guilty flight'. Santow JA (with whom Beazley and McColl JJA agreed) emphasised (at [38]) that a finding of this kind should rarely be displaced and that the statutory obligation should be construed in a realistic manner." 58As referred to above, the Court of Appeal in Nominal Defendant v Skrypka, supra, had earlier held, (dismissing the appeal of the Nominal Defendant on the ground, inter alia, that there had not been adequate inquiry and search), that due inquiry and search meant inquiry and search that was reasonable in the circumstances (applying Blandford v Fox (1944) 45 SR (NSW) 241 per Jordan CJ at 245), and that that did not extend to making inquiries after the scent has gone cold.

Application of Legal Principles to the Established Facts 59First, in relation to the application to dismiss the proceedings pursuant to s 34A(5), I am satisfied that Vaezi & Partners published in regional newspapers, from 12 - 15 March 2010, a Public Notice calling for information in respect of the motor vehicle accident on 18 October 2007. I am further satisfied that no information was forthcoming in respect of the searches carried. I am also satisfied that those solicitors advised their client to place flyers around the area of the accident seeking information and that no information was forthcoming. Also relevant to this case are the following matters: (1)That a claim was made on a licensed CTP insurer within six months of the accident, namely, NRMA Insurance Limited. That insurer has ample opportunity to investigate the claim, and notwithstanding that it made several offers of settlement in respect of the claim then brought by the plaintiff, it eventually issued a s 81 notice denying liability in November 2009. The reason for the denial of liability was the driver's statement that he was forced off the road by an unidentified vehicle. (2)As outlined in my judgment in the related matter, the Motor Accidents Authority determined, on 28 November 2010, that the insurer had lost the right to dispute the due inquiry and search issue. The plaintiff relied on Rippon v Chilcotton Pty Limited, supra, to submit for that reason, the defendant here should be estopped from relying on the same issue. Rippon is not really on point. It involved an attempt to re-litigate issues that had been determined or barred in earlier proceedings. Notwithstanding that the parties to the proceedings were different, it did involve an issue which had been subject to earlier proceedings and therefore an estoppel arose by virtue of the High Court's decision in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589. That is not the case here, where no issue has been determined in litigation. Rather, an administrative decision was made by the Motor Accidents Authority which was binding on the Nominal Defendant. It would, however, be inequitable if the insurer was prevented from raising the issue in one set of proceedings but able to rely on it in another set of proceedings arising from the same event. In any event, I do not determine the matter on this basis. 60This matter is distinguishable from Nominal Defendant v Meakes as it is not a case where the plaintiff had an opportunity to identify the subject vehicle. Further, whenever inquiries were made in respect of the matter, they were likely to be unfruitful, as occurred when the advertisements were placed by the plaintiff's solicitors in March 2010. By that time the trail had gone cold, and any further inquiries were likely to be futile. For those reasons, I find that due inquiry and search has been made out in this case. 61I am also satisfied that the plaintiff has made a full and satisfactory explanation for his late claim and a full and satisfactory explanation for the delay in commencing proceedings out of time. The evidence has established that at the time of the accident the plaintiff had been in Australia for approximately one year. He was still at school, and his father looked after his interests. The explanation provided by all of the evidence has been full in that it has provided all relevant details to enable the Court to evaluate the reasons for the delay. As outlined in the related judgment, those reasons are many and reflect the plaintiff's position as a young person in a new country, whose family have moved from place to place and from State to State as they have settled here. Acting in the plaintiff's interest, the father sought assistance from the Migrant Settlement Services in Griffith. No doubt that assistance was well-meaning and it eventuated in a claim being made against the CTP insurer of the plaintiff's brother's vehicle. However, it is extraordinary that the service did not recommend that the plaintiff's father obtain legal advice or consult a solicitor in respect of the plaintiff's claim. It was only when the insurer issued a s 81 notice in November 2009, denying liability for the claim, that the plaintiff's father sought legal advice from solicitors based in Adelaide in early 2010. The reason given by that insurer to deny liability was inconsistent with the plaintiff's statement, taken by an investigator employed by the same insurer, referred to in [11] and [16] above. A claim form was served expeditiously on the Nominal Defendant and its nominated insurer shortly thereafter. Given the history of the matter and all of the circumstances in the making of that claim, I am satisfied that a full and satisfactory explanation has been provided for making the late claim and therefore I decline to make the order sought by the defendant pursuant to s 73(5) of MACA. 62I am further satisfied that a full explanation has been provided in the delay in commencing proceedings which were eventually commenced by filing a Statement of Claim on 13 July 2012. Of most concern is the delay between May 2011 and the filing of the Statement of Claim, which was explained by the solicitor, albeit in the briefest terms, that he was attending to various tasks. When assessed objectively, for a person in the plaintiff's position, he was entitled to rely on his solicitors to process his claim expeditiously. Any fault in doing so, should not however, lie at the feet of the plaintiff in accordance with the Court of Appeal's decision in Smith v Grant, and thus I am satisfied that the explanation is not only full but amounts to a satisfactory explanation in all of the circumstances. 63I note that there is no issue between the parties that the plaintiff satisfied the damages threshold contained in s 109(3)(b). For the above reasons I am satisfied that an order should be made pursuant to s 109 of MACA for the plaintiff to be granted leave to commence the proceedings, nunc pro tunc, by the filing of the Statement of Claim on 13 July 2012.

Orders 64I therefore make the following orders: (1)That the Notice of Motion filed on 21 August 2012 by the Defendant be dismissed. (2)That the Defendant pay the Plaintiff's costs of the Motion. (3)That pursuant to s 109 of the Motor Accidents Compensation Act 1999 the Plaintiff be granted leave to commence proceedings by the filing of the Statement of Claim on 13 July 2012. 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: 21 January 2014