application for leave to extend time for commencement of proceedings pursuant to s 109 MACA
"full" and "satisfactory" explanation
content of applicant burden of proof
Source
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Catchwords
application for leave to extend time for commencement of proceedings pursuant to s 109 MACA"full" and "satisfactory" explanationcontent of applicant burden of proof
Judgment (8 paragraphs)
[1]
Judgment
By Summons filed 6 February 2017, the plaintiff seeks leave to proceed out of time pursuant to s 109 Motor Accident Compensation Act 1999 (NSW) ('MACA').
This Court acknowledges the plaintiff's solicitors, Ms Beilby Poulden Costello, and counsel, Mr Halligan, who acted pro bono on the Summons.
[2]
NARROWING OF THE FIELD OF CONTEST
The subject motor vehicle accident occurred on 26 September 2008. The plaintiff read in evidence her affidavits of 14 February 2017, 6 December 2017 (paragraph 3 not read), and 25 October 2018. Also read in evidence were affidavits of Kin Lap Chow, a solicitor at the firm Gerard Malouf and Partners, made 6 February 2017, 17 May 2017, 21 July 2017, and 13 September 2017; Affidavit of Stanley Robert Fienberg (at the relevant time a solicitor at Wilsons) made 20 September 2017; and of Scott Hall-Johnston, solicitor, presently with day to day conduct of the matter.
Initially, the defendant objected to the admissibility of witness statements attached to the affidavit of Mr Hall-Johnston and letters dated 13 September 2017 attached to an affidavit of Mr Chow upon which the plaintiff sought to rely in order to prove likely quantum of damages. Ultimately, the defendant conceded the damages hurdle under s 109(3) MACA and withdrew those objections.
The defendant read the affidavit of Andrea Louise Boyd-Boland made 24 January 2019 without objection.
The parties were able to come to accommodation such that the defendant's opposition to the grant of leave was refined only to disputing that the plaintiff provided a full and satisfactory explanation to the Court for the delay.
In the circumstances of the affidavit evidence of the parties occupying 3 lever arch folders and the above narrowing of the contest, the parties accepted that the matter would proceed on the basis that I need only consider the passages of evidence to which I was taken.
The defendant conceded that it took no issue with delay after the plaintiff's lodgement of the CARS Application for General Assessment on 13 March 2015.
The plaintiff was cross-examined.
[3]
PRINCIPLES
Section 109 MACA relevantly provides as follows:
"(1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:
(a) the date of the motor accident to which the claim relates
….
except with the leave of the court in which the proceedings are to be taken.
(2)…
(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
(b)…
(4)…
(5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim."
The phrase 'full and satisfactory explanation' is defined in s 66(2) MACA as follows:
… "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."
In Walker v Howard [2009] NSWCA 408 (a Court of 5) at [96] to [97], the Court stated the following principles which are of assistance in the determination of this application:
1. The explanation of "the conduct" required by the first sentence of the definition above quoted from s 66(2) MACA involves an account of the acts and omissions of the claimant and all relevant persons, including those acting or purporting to act on the claimants behalf, if their conduct is relevant to the explanation for the delay;
2. That the explanation should cover the conduct of agents (such as solicitors) purporting to act on the claimant's behalf, does not broaden the meaning of "claimant" in the first sentence of the above quoted definition from s 66(2) MACA beyond its defined meaning, to include persons acting or purporting to act on the claimants behalf;
3. The meaning of "full" in the above quoted definition from s 66(2) MACA is to be understood in the context of the purpose of the provision to enable the Court to evaluate the reasons for the delay. Therefore, all relevant information to that end is required;
4. The definition taking the two sentences as a composite whole, describes a test of satisfactoriness meaning not merely necessary but that the explanation is sufficient.
5. Not just the acts and omissions of the claimant but the whole explanation given is to be assessed in the test of whether it provides a full explanation satisfying the test of satisfactoriness, described in the second sentence in the above quoted definition from s 66(2) MACA; whether or not "a reasonable person in the position of the claimant… would have been justified in experiencing the same delay". In that test, solicitors retained to assist the claimant are an aspect of the position in which the claimant was placed.
The plaintiff's explanation was fundamentally based on her not being informed until December 2016 of a limitation period for bringing proceedings in this Court. The defendant argues that the plaintiff's explanation is not full and satisfactory because the Court ought not be satisfied of that fundamental proposition without affidavit evidence from each solicitor and counsel involved in the conduct of the plaintiff's claim over the relevant period from injury to lodgement for the CARS assessment (approximately 7 years) or failing that evidence, proof in the form of solicitor and counsel file notes showing that advice of the s 109(1) MACA 3 year limitation period was not provided. Indeed, the defendant made the submission that the plaintiff was also obliged to read affidavit evidence and produce file notes of lawyers acting for her in successfully conducted prior personal injury claims resulting from motor vehicle accidents in 1992 and 1994, and an occupier's liability action for an injury suffered in 2006. There was no suggestion of delay in the prosecution of any of those claims, two of which were quickly resolved and therefore did not go to a Court hearing. The defendant did not in cross examination advance to the plaintiff any proposition of concern for limitation period in regard to any of those claims. Plainly the 1992 and 1994 motor vehicle accident claims preceded MACA.
In short, the defendant position was that in order to satisfy her obligation of providing a "full" explanation as defined by s 66(2) MACA and required by s 109(3) MACA, the plaintiff was required to provide that affidavit and file note evidence from every solicitor who acted for her in relation to a personal injury claim, regardless of nature of cause of action, for a period of 27 years; see defendant written closing submission at [40] to [42]; Transcript p 38 Line 22 to p 44 line 46.
In the plaintiff's affidavit made 25 October 2018 at [73] she deposed:
"On 7 December 2016, a CARS Certificate of Decision was issued by Assessor John Watts. I was unhappy with the decision and was advised by Mr Chow that this decision could be appealed in the District Court. I was also informed that I would need to seek the leave of the Court to commence these proceedings as my claim was out of time. This was the first time I had been advised by any solicitor of the limitation period to commence proceedings. When I asked Mr Chow why he had not informed me of this before, he said: "It was moot. It didn't matter and you didn't need to know."
In cross examination on this passage, her evidence was (T. p 65, Line 5 to Line 19):
"Q. Do you understand there's a difference between the Claims Assessment and Resolution Service, which is CARS, and between court, which is obviously what we're doing here today?
A. Well, no, because I thought - or, I was under the understanding that CARS was court, but it was to stop all the courts being blocked up, so you went to CARS - what they call CARS. So, I just assumed they were all the same thing.
Q. I understand. So, if I can just rephrase my earlier question, when you met with your barrister, with Mr Campbell, can you recall whether there was any discussion about going to either CARS or court?
A. The only thing that I was told was that if I appeal in CARS, because I'd have the right to do that, then it goes to court. That, that was all I was told.
Q. Were you provided with any written advice from your barrister?
A. No, not that I can recall, no."
This last answer of the plaintiff, "No, not that I can recall, no", was one of a collection of words responding on the basis of recollection used by her several times in cross examination. On each occasion, it was plain that she was answering in the negative on the basis of a real recollection and with the appropriate concession that memory over time might be imperfect.
In cross examination the plaintiff described the further action taken by her in response to being told by Mr Chow in December 2016 that she was out of time for commencement of proceedings in this Court (T. p 57 line 38 to line 42):
"Q. Did Mr Fienberg ever give you any advice that you can recall about the limitation period for your claim?
A. No, in actual fact, I was very upset after hearing that that was the case. I rang Mr Fienberg to ask him why he had not told me and he said, "I'm sorry, Sue, I didn't realise we had to."
It will be seen that Mr Fienberg was the solicitor with the day to day conduct under his principal, Mr Wilson, at Messrs Wilsons at the time of expiration of the limitation period and until instructions were transferred to Messrs Gerard Malouf and Partners in September 2013. Mr Chow of that firm had day to day conduct of the matter from September 2013 and when the advice described in the above passage quoted from the plaintiff's affidavit was given.
The defendant did not require solicitors Messrs Fienberg and Chow for cross examination.
The plaintiff's evidence was that from the date of first instructing solicitors while in hospital following the motor vehicle accident and throughout the conduct of the matter by several solicitors after that time, her understanding was that her claim was being prosecuted at CARS.
I consider it a reasonable proposition that members of the public would not reasonably be expected to know whilst they observe their claim being managed by solicitors on their behalf over years after commencement by report to police (s 70 MACA) and claim upon the insurer (s 72 MACA), that separately, a time limit of 3 years for the bringing of proceedings in the Court is in fact running. The plaintiff's explanation that she did not differentiate between CARS and Court until receiving the advice from Mr Chow in December 2016, is within my worldly expectation of a reasonable person of the public.
The defendant referred for support for its above described proposition of content of burden of proof of giving a "full" explanation to Nominal Defendant v Browne [2013] NSWCA 197. Counsel for the defendant described that case as indistinguishable for the application of principle from the present case. I disagree and will return to that point. In my opinion, Nominal Defendant v Browne involved very different facts and Ms Browne provided much less complete evidence.
[4]
APPROACH TO EVIDENCE:
The key piece of evidence to which the defendant directed the Court in support of the argument that the plaintiff's evidence was not "full and satisfactory" is found in the letter of Mr David Wilson, solicitor, on the letterhead of his firm Wilsons dated 21 March 2017 to Messrs Gerard Malouf and Partners in which he wrote:
"It is the writers recollection, that limitation periods were spoken about with the client in a conference early in the engagement, however, without the benefit of our file we find that we are unable to oblige you with an affidavit as requested": Affidavit of Kin Lap Chow [4].
In oral address, Counsel for the defendant put it (T P 31, Line 41 to Line 43):
"That's part of why it's not full. No attempt appears to have been made to provide Mr Wilson with his file for the purposes of being able to refresh his recollection and provide more information."
Mr Wilson's letter is dated 8 and a half years after his own day to day involvement in the plaintiff's claim. In cross-examination, the plaintiff gave clear evidence of actual recollection of the limit of his involvement and of denial of him providing advice on limitation periods.
Her evidence was (T page 55, line 30 to page 57 line 28):
"Q. How was it that you came to be in touch with Mr Wilson again?
A. Well, he actually saw us walking out of Ms Everett's - they are exactly across the road from each other. And we actually were supposed to see Ms Everett in Dee Why, 'cause that's where we were, but she had a business in Penrith and we had to go there because she couldn't get to Dee Why. But, as it turned out, she was directly across the road from David Wilson. Well, after she had told us that she - well, she was not well after her accident, that we should get another one to continue on, David Wilson saw us walking out of her office and waved and said "Hello" and walked over and started asking questions. So, that's how it all come about.
Q. So, then you instructed Mr Wilson to act for you?
A. Yes.
Q. At the time that you instructed Mr Wilson, was he your solicitor himself or did he have someone else in the firm who was doing the work on your file?
A. No, he was my solicitor, only him, at first.
Q. How long was that the case for?
A. I'm really not sure, but then Stan [Fienberg] got put onto it when he joined or whatever, I don't know but, it was only David [Wilson] and Stan.
Q. Do you recall another solicitor by the name of Kathleen Gobbit?
A. No, I do not.
Q. So, your recollection is that for the first year, approximately, Mr Wilson was your solicitor himself?
A. Yes, he was.
Q. Did you go in and have a meeting with Mr Wilson when you first instructed him?
A. Yes.
Q. During that meeting, can you recall whether any advice was given to you by Mr Wilson?
A. Just, the details again were taken down, what had happened and that he was going to get me assessed and that was it. That--
Q. Did Mr Wilson take notes at the meeting?
A. Well, yes.
Q. Did you take any notes at the meeting?
A. No.
Q. Mr Wilson has said, in a letter, that he thinks he may have given you advice during that meeting regarding a three-year limitation period. Can you recall whether that advice was provided to you?
A. Not to my recollection, no.
Q. You can't recall whether or not he said anything about it or not?
A. I don't recall him saying that, no.
Q. After that meeting, did you receive any correspondence from Mr Wilson?
A. Yes, he sent me a letter saying that I had to go and see some assessors, Ms Laz and - I can't remember the other name, sorry, the gentleman, I think--
Q. Mr Parmegiani(as said)?
A. Yeah, that's - I think that's the one.
Q. Dr Parmegiani rather, yes?
A. Yeah, so I had to go and see those two doctors, and that was it.
Q. Can you recall whether Mr Wilson may have sent you other letters as well?
A. Mr Wilson was very difficult to get a hold of, or even contact, or get him to get back in contact with you, so, no.
Q. So, you don't recall receiving other letters, or you know you didn't?
A. I don't recall getting any other letters.
Q. Now, at some point--
HIS HONOUR: Can I just interject?
Q. When you say you don't recall any other letters, that's a form of words we all use. The question of you was, "Did you get any other letters?". So, are you saying you don't think so? Are you saying, "I don't recall, but I might have" or are you saying, "I have no recollection"?
A. I'm sorry, I'm not quite sure what you mean.
Q. Did you get any other letters from Mr Wilson?
A. What, over the, the time or, or--
Q. Well, that was the question asked of you?
A. I - sorry, yes, well I'm - yes, I'm sorry, I have misunderstood what you've just said. Could you ask the question again, please?
Q. I forget the exact form of words I used, but I think I was asking you whether you received any other letters from Mr Wilson aside from the letter talking about the medical appointments?
A. Over the years, yes.
Q. You did. Can you recall whether any of those letters had any advice in the about things to do with limitation periods?
A. No.
Q. You can't recall?
A. I can't recall anything like that, no."
[Names in brackets inserted]
At the outset, the following points are apparent from Mr Wilson's letter:
1. He relied on his recollection of events up to 8 and a half years past and his response was made without reference to his file, then in the possession of Messrs Gerard Malouf and Partners (Affidavit Chow 6 February 2017 at [7]).
2. His recollection was of a discussion not a written advice and if recorded at all, it would be in a conference file note.
3. He refers to "limitation periods" (plural) without making specific reference to a recollection of the limitation period for the commencement of proceedings in Court pursuant to s 109 MACA and therefore his recollection is not specific to the limitation period the subject of these proceedings and could, for instance, relate to limitation periods for the commencement of her claim under ss 70 and 72 MACA.
4. His recollection was not of sufficient reliability, on his assessment, for him to be prepared to provide an affidavit or to request access to his file that he might do so (see affidavit of Mr Chow dated 6 February 2017 at [14] to [17], quoted below); and
5. The letter confirms that the plaintiff through her solicitors Messrs Gerard Malouf and Partners in February 2017 did ask Mr Wilson to provide an affidavit but he declined.
6. He did not withdraw his prior spoken report to Mr Chow that Messrs Wilson had not taken "steps to stop time within the three year limitation period": Affidavit of Mr Chow dated 6 February 2017 at [16].
[5]
OTHER EVIDENCE - "FULL" EXPLANATION
It is important in order to gain an impression of the completeness of the evidence of the plaintiff's explanation in the face of this defendant opposition; to make reference to the chronology of her dealing with solicitors between the date of her injury and of her making the CARS Application for General Assessment on 13 March 2015. This can be briefly done as follows:
5 May 1952: Date of birth of plaintiff
26 September 2008: Date of the subject Motor Vehicle Accident - Plaintiff admitted to Royal North Shore Hospital for 3 and a half weeks, then Mona Vale Hospital for Rehabilitation.
October 2008: Whilst in hospital, plaintiff has her one and only conference with Mr Walker of Walkers Solicitors in relation to her claim for compensation. He never called her back. He did not commence her claim.
November 2008: Plaintiff retained Everett Paul Solicitors, Ms Ros Everett acting.
3 March 2009: NRMA issued a notice admitting liability pursuant to s 81 MACA.
15 February 2010 - 28 April 2010: Due to illness of Ms Ros Everett, the plaintiff retained Messrs Wilsons, Mr Wilson, Principal.
5 November 2010: MACA insurer NRMA made advance payment to plaintiff of $30,000.00.
March 2011: Mr Fienberg commenced day to day conduct of the claim at Messrs Wilsons.
12 September 2011: NRMA, by its solicitors, invite Messrs Wilsons to engage in an informal settlement conference on 22 September 2011.
26 September 2011: Last day/ expiration of 3 year limitation period: s 109(1) MACA. Mr Fienberg continued to have continuing day to day conduct of the claim for the plaintiff.
31 October 2011: Messrs Wilsons file application for MAS Whole Person Impairment Assessment.
March 2012: Mr Fienberg was retrenched and therefore ceased to have day to day conduct of the claim for the plaintiff.
23 March 2012: Dr Parmegiani MAS assessed 6% Whole Person Impairment.
12 June 2012: Dr Lahz MAS assessed 4% Whole Person Impairment.
August 2012: Mr Fienberg was re-employed by Messrs Wilsons and recommenced day to day conduct of the claim for the plaintiff. Mr Fienberg instructed Mr Hourigan of Counsel.
7 February 2013: Ms Zeman, on behalf of NRMA, examined the plaintiff.
9 September 2013: Due to dissatisfaction with lack of contact with and service of Messrs Wilsons, the plaintiff retained Messrs Gerard Malouf and Partners, Mr Chow acting. Until the time of hand over, Mr Fienberg still retained day to day conduct of the claim for the plaintiff.
By letter dated 9 November 2017 and, following receipt of affidavits by the plaintiff (14 February 2017), by Mr Fienberg (20 September 2017) and by Mr Chow (6 February 2017, 21 July 2017, and 13 September 2017), the defendant informed the plaintiff's present solicitors that the defendant's position was that the plaintiff's explanation for delay would not be "full" for the purposes of s 109(3) MACA "unless and until affidavit evidence is served from" each of the prior solicitors to have represented the plaintiff, including Mr Walker, Ms Ros Everett, and Mr David Wilson. The defendant expanded this position stating that "the explanation cannot be full unless the plaintiff produces copies of all correspondence and file notes regarding any advice given to the plaintiff concerning the issue of limitation periods. We put you on notice that a Notice to Produce may be issued to the plaintiff for these documents if they are not forthcoming."
The letter from the defendant's solicitors speculated that there was correspondence or file notes containing advice on the issue of limitation periods. The defendant's solicitors did not issue a Notice to Produce.
By letter dated 26 November 2018, after having received service of the further evidence in the plaintiff's application, being her own affidavits of 6 December 2017 and 25 October 2018, the defendant's solicitors provided a further copy of their above letter just referred to and again enquired of whether affidavits were to be made available from those other former solicitors. The letter concluded with specific reference to the affidavit of Mr Fienberg and stated "the defendant calls for production of the file from Wilsons."
Mr Fienberg, solicitor, had daily carriage for much of the period that the plaintiff retained Messrs Wilsons, including the final period leading up to the plaintiff taking her claim to Messrs Gerard Malouf and Partners. Mr Fienberg made his affidavit having referred to documents at Messrs Gerard Malouf and Partners offices and on the basis of his recollection.
In the end, the plaintiff has produced affidavit evidence of both Mr Fienberg and Mr Chow, being the solicitors with the day to day conduct of her claim for all but four months of the period March 2010 up to lodgement of the CARS 2A Assessment Application on 13 March 2015. During their work each of Messrs Fienberg and Chow had access to the combined file of all solicitors preceding them. There is no evidence of the existence of other lawyers' file documents. In circumstances of the defendant having elected not to require either of Mr Fienberg or Mr Chow for cross examination, on the Court's inquiry, counsel for the defendant conceded that the Court was entitled to assume that solicitors would, by affidavit, provide full and frank disclosure to the Court on the topic of advice given to the plaintiff of limitation periods, if any. Counsel's concession in that regard was appropriately made.
The plaintiff had been legally represented in three prior claims for damages. These involved motor vehicle accidents in 1992 and 1994 and an Occupiers' Liability claim for an injury suffered in 2006. In her affidavit made 14 February 2017 the plaintiff deposed:
"In my previous motor-vehicle accidents, I was not advised that the statute of limitations for personal injury claim was 3 years." (As written)
[6]
CONSIDERATION: "FULL AND SATISFACTORY" EXPLANATION
As earlier stated; during the Hearing, the defendant referred the Court only to Nominal Defendant v Browne [2013] NSWCA 197 for the proposition that the evidence of the plaintiff was insufficient to satisfy her burden of proof to provide an explanation which was both "full and satisfactory" as required by s 109(3) MACA.
I disagreed with counsel for the defendant's submission that Browne's case was indistinguishable from the present. Fundamentally, in Browne, the Court of Appeal considered whether a full and satisfactory explanation had been made for delay in the regime for bringing of a motor accident claim, being Notice upon the insurer to be made within 6 months of the accident: s 72 MACA. The Court of Appeal at [3] said the following in relation to the provisions of the MACA regime for commencement of a claim:
"The motor accident claim was confronted by three procedural obstacles. First, there is a requirement to report a motor accident to a police officer within 28 days of the occurrence of the accident: Motor Accidents Compensation Act 1999 (NSW), s 70(1). Failure to take such a step requires provision to the insurer of a "full and satisfactory explanation for any non-compliance" - see s 70(2) - and the possibility of the proceedings being dismissed unless the court is satisfied that "sufficient cause existed to justify the delay in reporting": ss 70(5) and (7)."
Whereas Ms Browne bore a burden of explaining to the Court why she took two and a half years to introduce a motor accident claim to her then current occupiers liability claim against another defendant; the onus upon the plaintiff here is to explain why she did not instruct her lawyers to commence proceedings in Court when she understood her lawyers to be prosecuting her Application in CARS.
Mrs Browne explained that she was not aware that she had a motor accidents claim until advised by her lawyers. In my opinion, an explanation of the question why lawyers, when advised of the circumstances of an injury involving a motor vehicle, had not advised a plaintiff of the opportunity for making a motor accidents claim against the Nominal Defendant addresses a more surprising proposition than that which is involved here; being that in the course of the preparation for the making of a CARS Application and where delay caused the CARS Application to be filed more than 3 years after the date of the accident, lawyers overlooked advising the plaintiff of the 3 year limitation period under s 109(1) MACA for the commencement of Court proceedings.
At [18] the Court of Appeal in Browne observed:
"Given her evidence as to the cause of the accident, it might seem surprising if no earlier consideration was given to making a motor accident claim".
At [20] the Court of Appeal observed that the "full account" required to be given related to Mrs Browne's actions, knowledge and belief, and not those of her solicitors: see also Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 particularly at [55]; Smith v Grant [2006] NSWCA 244; 67 NSWLR 735, particularly at [26], [32] - [34].
In Smith v Grant, the Court inferred that the plaintiff was aware of the limitation period (at [37]) but still accepted that her explanation was "satisfactory".
In Lyu v Jeon [2012] NSWCA 446 at [22], the Court of Appeal described "satisfactory" explanation as: "The standard of a reasonable person in the position of the claimant failing to comply with a duty is understandable… The hypothetical experiencing of delay must have the quality of a justified experiencing of delay." In Browne's case at [21], the Court of Appeal similarly stated "the purpose of the explanation is not to explain the conduct of the solicitors. But an explanation may not be "full" if it does not provide some detail as to the instructions given to, and the advice received from, solicitors (and, where relevant, as here, counsel)."
The evidence of explanation here in both qualities of "full" and "satisfactory" is vastly more complete than it was in Browne. Whereas Ms Browne "avoided" providing detail of the carriage of her matter by her solicitors and her evidence was that she had attended a conference with Senior Counsel on two occasions but said, "I do not recall anything he said" (at [22]); the above summary of the evidence in the plaintiff's application includes coverage of the litigation file compiled by the several firms representing the plaintiff over time and affidavit evidence of the recollection of solicitors with the substantial day to day conduct of her claim, having had the opportunity of refreshing their memories from the files. That evidence is inconsistent with, and to that extent, corroborates the plaintiff's evidence on oath and maintained throughout cross examination, that she was never advised of the time limit.
The Court of Appeal did not have the benefit of either Mrs Browne's recollection or disclosure of what was contained in the notes of solicitors and Counsel in the litigation files held by her solicitors: at [23] and [25].
The evidence in the present case affirmatively satisfies me that the plaintiff has provided a full and satisfactory explanation for the purposes of s 109(3) MACA as defined by s 66 MACA. In coming to this conclusion, I am satisfied that evidence in the plaintiff's application includes a sufficient disclosure of the understanding and knowledge of the plaintiff over the relevant period, her actions and belief and of the conduct of her solicitors so far as is required by that assessment. She has not "cherry picked" the information to be disclosed to the Court: See Mancini v Thompson [2002] NSWCA 38 at [46], Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 AT [73], [86] to [89]. I accept the plaintiff's explanation that she did not understand the legal distinction between the CARS process and commencement of proceedings in Court. Further, I accept her understanding, that if dissatisfied with the result of the CARS Assessment, she could appeal to the Court, to be consistent with that misunderstanding.
I am satisfied that a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay. Her explanation is satisfactory for the purposes of s 109(3) MACA.
Having found, for the reasons given to this point, that the explanation given is both full and satisfactory for the purposes of s 109(3) MACA: it is appropriate to respond to the defendant's proposition that the plaintiff bore a burden of proof the content of which was that despite her evidence of actual recollection and the affidavit evidence of Messrs Fienberg and Chow, she was required to provide evidence in the form of affidavits from all solicitors who at any point had some fashion of conduct of the prosecution of her claim and produce to the Court all lawyers' files.
In my opinion, the defence overstated the plaintiff's burden of proof in this case. Having forwarded the correspondence of 9 November 2017 and 26 November 2017 demanding that evidence, the defendant warned that it would proceed by Notice to Produce seeking disclosure of lawyers' files. It elected not to do so. It elected not to cross examine the solicitors Mr Fienberg and Mr Chow, who between them had enjoyed access to such lawyers' files and records as did exist. In the instance of Mr Fienberg, his working under Mr Wilson, assumedly gave him the spoken report of any prosecution of the Plaintiff's claim by Mr Wilson, as well.
It was open to the defendant to call those prior solicitors and to proceed by Notice to Produce or by subpoena for their records. It was unnecessary for the plaintiff to produce further evidence by way of corroboration. There is no unexplained failure by the plaintiff to call a witness in this case; Jones v Dunkel (1959) 101 CLR 298; Ghazal v GIO (1992) 29 NSWLR 336 at p 343C. In the end, in my opinion, that the defendant did not accept the plaintiff's evidence as providing a "full and satisfactory" explanation is not maintainable on the basis of a complaint that the evidence relied on by her was inadequate to satisfy her burden of proof.
I am concerned that the defendants conduct of its opposition to the grant of leave in this case approached the unwanted, expensive, and inefficient conduct described by Heydon JA (as his Honour then was) as "adamantine" in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 at [20, [22], and [24]-[25]. I do not mean by this that the defendant was obliged to concede and not entitled to contest, including by cross examination of the plaintiff, the summons. In every such application, the content of the burden of proof will be determined by its particular circumstances. My view is that the defendant conducted the contest and extended the contest on the basis of an unavailable and burdensome proposition of the content of the applicable burden of proof upon the plaintiff.
[7]
Orders:
1. Leave pursuant to s 109(3) Motor Accidents Compensation Act 1999 (NSW) for the plaintiff to proceed by Statement of Claim to be filed on or before 29 April 2019.
2. Plaintiff to pay the Defendant's costs of the Application by Summons for extension of time.
[8]
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: 05 April 2019
Parties
Applicant/Plaintiff:
Susan Noelene Holmes
Respondent/Defendant:
Joseph Zakia Bouari
Legislation Cited (3)
Motor Accident Compensation Act 1999(NSW)ss 66,70,72, 81, and
Plainly none of those claims were pursued under MACA. The subject limitation period did not apply to them. The 2006 claim resolved quickly without going to Court. The plaintiff maintained her evidence that she was not advised, in the course of being represented in any of them, of a limitation period for the commencement of proceedings in court: T p 50 line 31 to p 53 line 01. In the circumstances, that evidence is very plausible.
In the subject motor vehicle accident, the plaintiff was alone in her motor vehicle. She was conveyed by ambulance to Royal North Shore Hospital, where her admission lasted 3 ½ weeks. She was then transferred to Mona Vale Rehabilitation Hospital. Whilst in the latter hospital the plaintiff was attended by Mr Walker of Messrs Walkers Lawyers. During cross-examination the plaintiff's evidence was that she recalled that attendance. Not surprisingly, initial instructions of what occurred was the subject of Mr Walker's enquiries. She was not given any advice concerning the limitation period for commencement of court proceedings. She heard nothing further. In cross-examination she described having telephoned her solicitors after about two months and on being informed that a claim had not been lodged, she determined to go elsewhere. In about November 2008 she engaged the services of Ms Ros Everett of Everett Paul Solicitors.
In cross-examination the plaintiff recalled an initial conference with Ms Everett lasting about 30 minutes to 1 hour. Ms Everett wrote down the date of the accident and the name of the plaintiff's earlier solicitors. The plaintiff recalled that Ms Everett informed her that she would have to contact Messrs Walkers to obtain the relevant details.
I assessed the plaintiff's recall of that conference to be plausible and that that not more, in terms of advice, was given to be unsurprising. Due to ill health Ms Everett was unable to continue. On or about 15 February 2010, the plaintiff by letter informed the insurer NRMA that Ms Everett no longer acted. During cross-examination the plaintiff recalled that Ms Everett had suffered a motor vehicle accident and informed the plaintiff that she needed to retain another solicitor. In a frank concession against interest, she said that while she did not recall any correspondence from Ms Everett, she probably did receive a letter from her.
I have quoted above, the plaintiff's evidence displaying a good quality recollection of the circumstances of her then engaging Mr Wilson of Messrs Wilsons solicitors. Mr Wilson had acted for her in her 2006 occupier's liability personal injury claim which resolved by settlement quickly achieved and without going to Court.
She was clear in her evidence that the only solicitors who attended her whilst she retained Messrs Wilsons were Mr Wilson and Mr Fienberg. In cross-examination she said that she did not recall a solicitor named Gobbitt during her retainer of Messrs Wilsons. She recalled that in an initial conference Mr Wilson took notes and asked what had happened. He organised expert medical assessment. She said that was "about it".
Her evidence was that Mr Wilson did not advise her of a limitation period. This evidence is quoted above.
In her affidavit made 14 February 2017, the plaintiff deposed:
"[15] When I instructed Everett solicitors to act on my behalf in this motor-vehicle accident personal injury claim, I was not advised that the statute of limitations for a motor-vehicle accident was three years.
[16] When I instructed Wilsons solicitors to act on my behalf in this motor-vehicle accident claim I was not advised that the statute of limitations for personal injury claim was 3 years. Prior to the expiry of the statutory limitations of this motor-vehicle accident claim, I was not aware that a statute of limitations was 3 years which would expire on 25 September 2011.
[17] I had the honest belief that having instructed a solicitor that he would undertake all necessary steps to ensure that my claim was protected and that I would be entitled to, if necessary, have my day in court.
[18] The first I knew that my claim was out of time because time was not stopped prior to the expiry of the limitation period, was when my current solicitors, Gerard Malouf and Partners, after accepting my instructions to reject the assessment of Assessor John Watts, that they informed me that I will need to seek leave of the court to have my day in court."
In her affidavit made 25 October 2018 the plaintiff deposed:
"[73][This paragraph also quoted earlier] On 7 December 2016, a CARS Certificate of Decision was issued by Assessor John Watts. I was unhappy with the decision and was advised by Mr Chow that this decision could be appealed in the District Court. I was also informed that I would need to seek the leave of the Court to commence these proceedings as my claim was out of time. This was the first time I had been advised by any solicitor of the limitation period to commence proceedings. "When I asked Mr Chow why he had not informed me of this before, he said: "it was moot. It didn't matter, and you didn't need to know".
[74] The following day I telephoned the Law Commission, Law Access and the Supreme Court for confirmation and further advice in relation to the limitation period that applied to my claim.
[75] A few days later, I telephoned Mr Chow to ask what the next step was in relation to my claim. I left a number of messages in the following weeks however did not receive a response.
[76] On 2 February 2017, I received a letter from Mr Chow advising that he would file a Summons seeking leave of the Court to exempt time from my claim. This application was filed on 6 February 2017."
[Words in brackets inserted]
In cross-examination the plaintiff was unshaken in her evidence that Mr Fienberg, who had carriage of her matter, with only a 4 to 5 month period of interruption, up to the time of her instructions being transferred to Mrs Gerard Malouf and Partners, did not give advice concerning limitation periods for the bringing of her claim.
She said that from the start of having retained him she received very little attendance from Mr Wilson and also after Mr Fienberg took carriage of her matter. Mr Fienberg would say in answer to her enquiries as to progress, words to the effect of: "sorry Sue there is nothing going on". She thought it was in about 2012 or 2013, in response to her having "jumped up and down" as to why she had not seen a barrister, that Messrs Wilsons organised a conference with Mr Hourigan of counsel.
In regard to the conference with Mr Hourigan, the plaintiff again presented as a witness with actual recollection. She said that both Mr Hourigan and Mr Fienberg took notes. She observed Mr Fienberg to write down what Mr Hourigan told him to "checkout". During the conference there was no discussion of going to court. When pressed in cross examination as to whether anything was said in regard to time limits, the plaintiff first answered with an emphatic "no" and then with the frankness with which she presented her ability to recall, she added words to the effect of-so far as she could recall. In answering in this way the plaintiff presented as a frank and honest witness willing, against interest, to make the proper and measured concession of imperfection of recollection. Of course, the period of three years from the date of her injury expired on 26 September 2011, prior to the conference with Mr Hourigan of Counsel.
I accept the plaintiff's evidence in cross-examination that if her lawyers had told her then that the three-year limitation period had expired, she would then have asked why she was only being told then and not before it expired. When pressed as to whether Messrs Fienberg and Hourigan had spoken of the limitation period, the plaintiff said that they remained in Mr Hourigan's room whilst she was told to go and have some lunch and she does not know what they discussed in her absence.
The plaintiff was challenged as to whether it had occurred to her to ask any of her solicitors, Messrs Wilson, Fienberg or Chow about time limits. Her evidence, as a general observation, was that all solicitors (except Mr Walker who failed to commence a claim) with the carriage of her matter including Mr Chow advised her that her matter was progressing and that the wait she was experiencing was just how long claims take. She relied on them to protect and advance her interests. She had not previously made a claim under CARS.
When challenged in cross-examination as to why she did not get advice at an earlier time, the plaintiff responded that she trusted her solicitors and did not want to have to keep changing solicitors.
In relation to the very important period between February 2010 and September 2013, the period during which Messrs Wilsons had conduct of her claim; the plaintiff gave the following evidence in cross examination of a conversation with Mr Fienberg just before she terminated instructions to that firm. She did not simply sit by as time passed but was assured by her solicitors that her claim was in train (T p 58 line 02 to p 69 line 19):
"A. Well, according to Mr Fienberg, Mr Wilson told him that he was to "tide me over", so to speak, to just keep me calm, keep me to the side and don't worry. And, in the end, I had to ask Mr Fienberg what was going on, because Mr Wilson wouldn't return my calls, he wouldn't give me any information, he wouldn't tell me what was going on and, unfortunately, he turned around and said to me, "Look, Sue, I'm sorry but nothing's been done on your claim for the past five years".
Q. Mr Wilson said that?
A. No, Mr Fienberg did.
Q. Mr Fienberg said that. When was that, that he said that?
A. That was just before I ended up getting Gerard Malouf & Partners to take over.
Q. So, just to make sure we have the dates correct, was that shortly before 9 September 2013?
A. If that's the date that I've joined with Gerard Malouf. I couldn't tell you what date it was, to be precise. So, if you've got the date that they've stated that I started with them, then Mr Chow rang, I believe, the NRMA to let them know that he was taking over and was told that, because they hadn't heard anything for five years, they thought I was either dead or was not going on with the claim, because they hadn't heard from Mr Wilson.
Q. At what point was it that Mr Wilson stopped returning your phone calls and stopped giving you information that you were seeking?
A. Virtually from the start.
Q. So, that was, just to refresh our memory, from about the beginning of 2010, February 2010?
A. When I started with David Wilson, whatever date it was, David was very evasive and it was very difficult to get anything out of him. So, when Stan started, he was the one I had to liaise with, but he just kept telling me that there was nothing new and he couldn't do anything and just, that was it. So, everything just kept dragging on until, eventually, I'd had enough and wanted to know what was going on, you know?
Q. So, is it fair to say Mr Fienberg was also evasive in terms of how he was dealing with you?
A. I wouldn't say that Mr Fienberg was trying to be evasive. I think he was trying to do what he was told to do by Mr Wilson. He's a very nice elderly gentleman and I don't think he'd do anything to hurt anybody, deliberately or otherwise, but he just had to do what, as he put it, Mr Wilson told him to do.
Q. So, you had concerns about the level of service you were receiving, if I can put it that way, almost from the start with Mr Wilson and with his firm?
A. Not exactly from the start, but a little while later it started to get a little bit, why isn't he returning my calls? Why isn't he, you know, doing anything? And, I mean, I had questions, I had things I wanted to find out about, but it was very difficult to try and pin him down, so--
Q. You were with that firm for more than three years though before you went and saw Malouf's, is that right?
A. Mm-hmm.
Q. Why did you not go and try and seek alternate legal advice at an earlier point in time?
A. You know something, that's a darn good question. I don't know. I, I think I was trying to trust and believe that he was trying to help me, and I'd already had two solicitors, one who couldn't help not being able to help me, but the other one not following through. And so, I just didn't want to keep changing solicitors, you know, through no fault of my own, but unfortunately that's the way it turned out in the end.
Q. When you went and consulted, eventually, with Malouf's in September 2013, was it Mr Chow that you consulted with?
A. Yes."
When Messrs Gerard Malouf and Partners took carriage of the matter, the limitation period had expired. Because the CARS 2A Application for General Assessment was not lodged until 13 March 2015, or more precisely because that Application was not lodged before the expiration of the limitation period on 26 September 2011, the three-year limitation period for the commencement of proceedings in this Court had expired.
The history describes the handing over of the plaintiff's claim from Mr Walker to Ms Everett, then to Mr Wilson's firm at which Mr Fienberg had significant day-to-day involvement and finally to Messrs Gerard Malouf and Partners where files handed over from solicitor to solicitor came to Mr Chow's possession on 14 February 2014. That the affidavit of Mr Chow refers to correspondence from those earlier firms strongly infers that Mr Chow came into possession of so much of the legal files as existed. That his description indicates limited if not scant documentation from earlier firms is consistent with the plaintiff's description of her experience of the inactivity of those firms.
The affidavit evidence is that the recollection of Mr Fienberg (refreshed from his access to the file of Messrs Wilsons at the offices of Gerard Malouf and Partners) and Mr Chow's inspection of the files, discovered no reference to the plaintiff having been advised of the limitation period to commence proceedings in Court. In short, the independent evidence of Mr Fienberg and of Mr Chow corroborates the plaintiff's evidence based on her actual recollection.
The affidavit of Mr Fienberg made 20 September 2017 was made relying upon his recollection "and copies of some documents sent to Gerard Malouf and Partners" at [4]. This latter statement is only sensibly understood as the documents sent from Wilsons.
At [12], he deposed:
"My recollection is that I did not provide Ms Holmes with advice of the three-year limitation period. However, that limitation period expired six months into my employment. The matter was not settled and required a CARS Application which could not be finalised during this period in particular because it was necessary to obtain the MAS Application which would provide an assessment of whole person impairment and consequently a CARS Application."
I do not accept, what I understand to be the submission of counsel for the defendant, that Mr Fienberg's history of conduct of the plaintiff's claim would not have placed him well to be aware of any record in the file expressing a concern for the limitation period. His affidavit describes the conference with Mr Hourigan of counsel as having concerned settling the CARS Application and no mention is made of reference to or consideration of the limitation period. At [23] his affidavit is further evidence that the entire file of Wilsons was delivered to Mrs Gerard Malouf and Partners.
Because of the position taken by the defendant to the Summons, opposing the grant of leave on the basis that the plaintiff's explanation was not "full" or "satisfactory", I quote from the unchallenged affidavit evidence of Mr Chow, from his affidavit made 6 February 2017 in which he summarised the history of the conduct of the matter on this question, gleaned by him from the files:
[Note: words within brackets have been inserted]
"[7] I subsequently received the previous solicitor's file from Wilson Solicitors, Attorneys and Conveyancers (hereinafter referred to as "Wilsons"). There was correspondence from Everett Paul solicitors and conveyancers (hereinafter referred to as "Everett").
[8] The earliest correspondence I am in receipt of is a letter from IAG Ltd, the insurer, interchangeably known as NRMA, (hereafter referred to as NRMA) to Everett dated 30 March 2009. These instructions appear to have ceased on 15 February 2010 where the plaintiff drew a letter to the insurer informing them that she has "dismissed" Everett.
[9] The plaintiff instructed Wilsons on or about 28 April 2010. Annexed hereto and marked with the letter "A", is a letter from Wilsons to NRMA dated 28 April 2010 [the letter, annexure "A" informs of Wilsons having "just received instructions" and asks for an advance sum of money to be paid directly to the plaintiff's mortgagees solicitor]
[10] By 30 August 2011, the issue of the plaintiff's whole person impairment had still not been determined. Annexed hereto and marked with the letter "B" is a letter dated 30 August 2011 from Wilsons to NRMA seeking a concession in relation to whole person impairment. [The concession sought was impairment of "at least 10%".]
[11] From the file it appears that an informal settlement conference was scheduled for 20 September 2011. Annexed hereto and marked with the letter "C" is a letter from Sparke Helmore Lawyers (herein referred to as Sparke Helmore) dated 12 September 2011 confirming the details of the informal settlement conference. [The letter asked Messrs Wilsons to forward "your complete schedule of damages".]
[12] The next correspondence from Wilson's [as written] is a without prejudice letter dated 10 October 2011.
[13] Between 20 September 2011 and 10 October 2011, the file does not indicate whether the steps necessary for the filing of a cars application [as written] had been met prior to 25 September 2011.
[14] On 1 February 2017, I made contact with Wilsons Lawyers [as written] to ascertain the reason why a cars application [as written] was not filed before the expiry of the limitation period. I was informed that the former solicitor with carriage, Mr Stan Fienberg no longer worked for Wilsons. I asked for the principal Mr David Wilson. At the time I was informed that he was not available. A message was left for Mr Wilson.
[15] Mr Wilson returned my call and said words to the effect that he will provide me with whatever I need in relation to this application to proceed out of time.
[16] Mr Wilson who confirmed for me that steps were not taken to stop time within the 3 year period after the accident. [as written]
[17] This communication was followed by a letter sent by post and email. Annexed hereto and marked with the letter "D" is a copy of the letter seeking explanation as to why a cars application [as written] was not filed before the expiry of the limitation period. [Mr Chow's letter dated 3 February 2017 informed Mr Wilson that the plaintiff had instructed Gerard Malouf and Partners "to reject the assessment" of Assessor Mr Watts and "have the matter filed in Court. Importantly, the letter continued "The issue of limitation period has been raised by the Respondent's solicitors.…
We draw your attention to the limitation period expired whilst the matter was in your care.
We look forward to your affidavit in relation to the steps taken to stop time, noting that our client's whole person impairment was still in dispute at the time."]
[18] …..
[19] …..
[20]: "The Plaintiff was legally represented at the time the limitation period expired and is entitled to rely on the solicitor's expertise to ensure all that was necessary was done to preserve time."
Whilst direct reference is not made to advice given to the plaintiff, this passage is inferentially consistent with advice, which would normally include advice in order to obtain instructions, not having been given in regard to avoiding the expiration of the limitation period.
Mr Chow's second affidavit, made 21 July 2017, sets out in some detail the steps taken by solicitors in the progress of the plaintiff's claim between 30 March 2009 when she retained Messrs Everett Paul and 13 March 2015 when Mr Chow instructed Mr Andrew Campbell of Counsel to settle the CARS 2A submissions. This affidavit, again, is consistent with and strongly infers that Mr Chow was in possession of the whole available file of the conduct of the claim.
During cross examination, the plaintiff presented as a person of actual recollection of her experience of the handling of her claim by Mr Chow. She recalled that her husband went to all appointments with her, that Mr Chow in the initial conference took notes and they discussed the plaintiff's injuries and her attendance on doctors. He informed her that he would obtain from Messrs Wilsons the information of the conduct of her claim. They did not discuss court proceedings. When challenged as to it taking approximately a year and a half before lodgement of the CARS 2A Application, the plaintiff answered that she saw Mr Chow on and off and discussed with him how her claim was progressing. She would ask him what the procedure was and what she was to do next. Mr Chow would refer to medical assessments and assure her that she could leave everything up to him.
The plaintiff conceded that she did not ask about time limits; but worldly experience suggests that if she was not aware that the forums of CARS and of this Court were legally distinct for the bringing of claims, one would not expect her as a reasonably acting member of the public to ask. She conceded that she was annoyed at how long it was taking but said that Mr Chow and the barrister, Mr Campbell, advised that to be the time taken by the CARS process.