Terry Elvey v Phillip McLennan

District Court of NSW|2020-12-16

Judgment

There is before the Court a notice of motion filed on 2 October 2020 on behalf of the defendant seeking orders that the plaintiff's statement of claim be struck out for non-compliance with the Uniform Civil Procedure Rules as to pleadings and also an order that the proceedings be dismissed for being in breach of section 108 of the Motor Accidents Compensation Act 1999 ("the Act"). Consequential orders are also sought.
When the matter was first before the court it was adjourned at the court's suggestion for clarification as to whether the prohibition in section 108 extended to intentional torts. It was also suggested to the plaintiff that he may wish to amend his statement of claim so as to accord with the requirements of pleading.
The plaintiff alleges that he was assaulted on 4 July 2017 by the defendant. The statement of claim under the heading "Pleadings and particulars" reads as follows: 4/07/2017-assault & battery causing grievous bodily harm after unprovoked hostile and aggressive attack using a 20T excavator dangerous use of a motor vehicle.
The plaintiff did file an amended statement of claim which does not improve his position. It reads in full as follows:
See affidavit in support.
On 4 July 2017 Philip McLennan assaulted and battered me during his attack with a 20 T excavator.
In addition to the initial and amended statement of claim the plaintiff provided a statutory declaration describing the events. At paragraph 15 of that document he refers to his employment of a solicitor who did a year's worth of work and refers to $75,000 for "barristers etc". Although irrelevant to the present application, it cannot be said that the pleadings in question have emerged in the absence of any advice on the plaintiff's claim.

The pleading issue

It is self-evident that the Pleading is defective. With all due respect to the plaintiff he simply does not understand or does not wish to understand why that is so. I consider it most unfortunate that a pleading as simple as a claim in assault has not been prepared. The gist of the cause of action is made plain by the statement of the plaintiff. But the matter cannot proceed on that basis, that is by reference to a statement and not a pleading. The whole purpose of pleadings is to have one party be required to state their position so that the other party knows precisely what the claim is that it has to meet. This includes an assertion of where the alleged conduct causing the assault occurred and importantly in this case some specificity as to what the conduct is that is alleged to constitute the assault. None of this is achieved by the current statement of claim. It is a very simple matter to remedy and if the plaintiff wishes to pursue his claim he will need to rectify this.
Absent the section 108 issue the appropriate order would be to strike out the claim and give leave for the plaintiff to file a statement of claim in an appropriate form.

The section 108 issue

Section 108 is as follows: 108 CLAIMS ASSESSMENT OR EXEMPTION PRE-CONDITION FOR COMMENCEMENT OF COURT PROCEEDINGS A claimant is not entitled to commence court proceedings against another person in respect of a claim unless: (a) the Principal Claims Assessor has issued a certificate in respect of the claim under section 92 (Claims exempt from assessment), or (b) a claims assessor has issued a certificate in respect of the claim under section 94 (Assessment of claims). (2) The provisions of this section are in addition to those of section 109. Accordingly, both sections are capable of applying to a claim.
A "claim" is defined by section 3 of the Act to be "a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle".
"Fault" is also defined by section 3 and is defined as "negligence or any other tort". The cause of action pleaded by the plaintiff in his statement of claim is assault, which is a tort, albeit of a different type of tort than negligence as it is an intentional tort.
When the definitions of "Claim" and "fault" are read into section 108 it is plain that section 108 applies to intentional torts and therefore assault and therefore the plaintiff's claim. Intentional torts are dealt with in ways differently to negligence in other civil liability legislation for example section 3B of the Civil Liability Act. For that reason there was some initial hesitation on my part in accepting that section 108 applied in this case. However the interpretation of section 108 I have just adopted is consistent with Supreme Court authority. I was not taken to any case involving a claim of assault dealing with the question presently being considered however there was reference to intentional tort in the case of AAI Ltd v Feng [2019] NSWSC 535, referred to by the defendant in its helpful written submissions. The issues in that case were different to the present issue however there was cause to consider the meaning of "fault". At [48] of AAI her Honour Adamson J said with reference to the definition of "fault" in section 3: "The definition in section 3 is consistent with this construction since "negligence" means a breach of duty and "any other tort" is a reference to any other wrong which can form the basis for liability for an intentional tort such as when a driver deliberately collides with another vehicle or pedestrian"
At [42] and [43] the reasoning of her Honour is consistent with intentional torts being caught by the Act.
At the time these court proceedings were commenced by the filing of the statement of claim on 4 July 2020 no certificate had been issued under section 92 or section 94.
It follows therefore that these proceedings have been commenced in contravention of section 108.
Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231 was a case where an injury had been suffered by the respondent when he fell from the appellant's motor vehicle. The respondent had slipped off a trolley truck whilst employed by the appellant as a trolley collector. At [10] the question was identified as being whether the respondent by pleading his cause of action against the appellant as being an unsafe system of work could avoid the operation of the Act. Section 108 was described at [44] as a "blanket prohibition on the commencement of proceedings if the relevant certificate have not been issued". The next sentence refers to section 109 and the ability to commence proceedings outside three years with the court's leave.
I note [50] of Emad where the point being made was that if the fault which led to somebody's injury was failing to provide a safe system of work that did not mean it was not to be regarded as negligence "in the use of the vehicle". On the same logic that the fault which is alleged to have led to the alleged injury in the present case is assault does not mean it is not to be regarded as arising "in the use of the vehicle". Emad is entirely supportive of the defendant's argument in the present case.
At [77] of Emad section 108 was described as mandatory. The order ultimately made in Emad was for the statement of claim to be dismissed for that non-compliance. Subject to one final consideration that is inevitably the outcome here.
That final consideration is that the Court was informed through the defendant's submissions that there has in fact now been issued, on 11 November 2020, an exemption certificate. Beyond what I have just stated as being disclosed by the submissions there is no information whatsoever about that exemption certificate. The time at which the claim was referred to assessment is not known; if it was before 4 July 2020 and the date of issue was 11 November 2020 then by section 109(2) the plaintiff may have until 10 January 2021 to file a statement of claim within time. Failing that, the plaintiff will (apparently, and without being seen to determine any issue in this regard) be out of time as the three-year period has now passed since the date of the alleged event. The plaintiff will face another hurdle in the form of section 109 in that he will have to satisfy the Court that he should have leave to commence beyond that three year period, which will include satisfying the Court that the total of damages of all kinds that are likely to be awarded are not less than 25% of the maximum amount that may be awarded for non economic loss under section 134 of the Act. This is a marked restraint on the plaintiff's right to make a claim against the defendant, possibly to the point of denying him that right which he would otherwise have had if the exemption certificate had been issued at a sufficiently earlier time.
I have expressed these concerns given that the plaintiff is self represented, and appears with respect not to fully understand the requirements of bringing his claim. Yet there would not appear to be a way at this stage to preserve the rights of the plaintiff (which may in any event be preserved if s109 can be wholly satisfied) by adopting some legitimate alternative course to dismissing the claim. One possibility may have been to not dismiss the claim and to proceed with the leave application and, if that was successful, to make an order to the effect of the leave being given "nunc pro tunc", for the filing of the claim in April 2020. Yet that is not available as that would nullify the effect of s109, which as discussed above is mandatory, and furthermore, the leave is available for claims that are out of time, not filed within the required time. This also would not cure the 25% of damages requirement mentioned above.
The current matter can only be decided on the available material before the Court, and despite the concerns just expressed, on that material and on the arguments made before me the result is that the plaintiff's claim will be dismissed.
At the hearing of this motion the future conduct of the matter was discussed on the basis that a hearing date for any application under section 109 would be given of 26 March 2021 and with directions to be made for the serving of evidence.

ORDERS

I make the following orders:
The plaintiff's amended statement of claim be dismissed.
The plaintiff is to file and serve by no later than 31 January 2021: 2.1 a Summons seeking leave under section 109 of the Motor Accidents Compensation Act to commence proceedings in respect of his claim identified by the amended statement of claim just dismissed. 2.2 All affidavit and other documentary material that he seeks to rely upon in support of that application.
The defendant is to file and serve by no later than 28 February 2021 all affidavit and other documentary material that it seeks to rely upon in opposing the summons.
The plaintiff is to file and serve by no later than 19 March 2021 any affidavit or other documentary material in reply.
The defendant's costs of this motion and of the dismissed claim shall be reserved for determination pending any application of the plaintiff under s109 and in the event, no such application is made, shall be paid by the defendant within 28 days of such costs being agreed, and in the event they are not agreed, shall be assessed.
The date for the hearing of the plaintiff's Summons is 26 March 2021.

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: 18 December 2020

Uniform Civil Procedure Rules UCPR Motor Accidents Compensation Act 1999(NSW)

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