Vu v Nominal Defendant & NRMA Insurance Ltd

LEGISLATION CITED: Motor Accidents Compensation Act 1999, s 3, s 66(2), s 73, s 109(3)(a)

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 12 CASES CITED: Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 Salido v Nominal Defendant (1993) 32 NSWLR 524 Walker v Howard [2009] NSWCA 408 Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323 Zotti v Australian Associated Motor Insurers Limited [2010] HCAASP 30

Thi Van Hang Vu (Respondent/plaintiff) PARTIES: The Nominal Defendant (First defendant) NRMA Insurance Limited (Applicant/second defendant)

COUNSEL: Mr P Menzies QC with Mr J Trainer (Respondent/plaintiff) Mr W Fitzsimmons (Applicant/second defendantt)

SOLICITORS: Gajic & Co (Respondent/plaintiff) Moray & Agnew (Applicant/second defendant)

The applicant/second defendant, NRMA Insurance Ltd, seeks to have the respondent/plaintiff's claim dismissed on account of claimed procedural breaches by the plaintiff, of the requirements of s 73 and s 109(3)(a) of the Motor Accidents Compensation Act 1999 ["MAC Act"]. The underlying claim relates to a street collision that occurred on 12 March 2005, in which the plaintiff claims she sustained injury. The plaintiff seeks to pursue these proceedings against the second defendant pursuant to ss 112 and 113 of the MAC Act. The claimed breaches relate to the plaintiff's alleged failure to provide full and satisfactory explanations in respect of a number of delays concerning relevant steps taken in the proceedings against the second defendant.

At the outset of the hearing of the motion the parties narrowed the issues. For the purposes of this application, the second defendant now concedes that at a trial, the plaintiff would be likely to receive an award of damages in excess of the monetary threshold required by s 109(3)(b) of the MAC Act, namely $86,000 in this case.

Two issues remain to be determined. The first such issue is whether the plaintiff has in fact failed to provide full and satisfactory explanations for the contended delays, and the second such issue is whether the proceedings ought to be struck out at this preliminary stage because, even if the assumed facts alleged by the plaintiff are taken to be accepted at their highest, and satisfactory explanations for delays are assumed, the proceedings are nevertheless bound to fail, thus rendering it futile to proceed to a full hearing on the merits of the claim.

The applicant/second defendant relied upon the affidavit of an NRMA employed solicitor, Ms Katie Marie Talbot, sworn on 2 July 2010. The respondent/plaintiff's affidavit was sworn on 23 September 2010. Both affidavits annexed relevant correspondence and the police investigation report.

The plaintiff was born in Vietnam in 1984. Whilst there, she completed her secondary education and had commenced, but did not complete, her tertiary studies. In 1990, together with her husband and her family, she left Vietnam as a refugee. She arrived in Australia in 1993.

At the time of the collision in question, the plaintiff was pregnant with her third child and she was not working. Beforehand, she had worked in Australia as a process worker for some years, and she had intended to return to that type of work in about 2006.

At about 10.40pm on Saturday 12 March 2005, the plaintiff was driving her sedan vehicle in a southerly direction along Sweethaven Road, Bossley Park, NSW when the front left portion of her vehicle collided with a parked flat top trailer bearing number plates N 68982. The trailer was parked on the left side of Sweethaven Road in an area without street lighting. The tailgate at the rear of the trailer was down and there were no reflective surfaces on it to serve as a warning to the drivers of approaching southbound vehicles that the trailer was in that position on the roadway.

For the purposes of argument, the applicant/second defendant accepts that the trailer in question came to be parked on the roadway through the use of the prime mover in question. However, it was not conceded that the collision was due to the driving of that motor vehicle.

The collision was reported to the police, and the police attended the scene to investigate the occurrence following which an accident investigation report was prepared. The result of the police investigation was that it was considered that the collision was not due to fault on the part of the plaintiff. The report concluded that despite the plaintiff applying the brakes of her vehicle, she was unable to avoid the collision.

Although the trailer had vehicle registration plates affixed to it at the time of the collision, in fact it was both unregistered and uninsured.

In the collision the plaintiff sustained injuries when her chest struck the steering wheel of the vehicle. She also injured her left knee when it struck the dashboard. She subsequently went on to develop pains in the areas of her neck, shoulders, arms, chest, back and left knee and she has encountered subsequent psychological difficulties. She has received medical treatment for these problems. Given the concession by the second defendant that it is no longer necessary for the plaintiff to satisfy the threshold of s 109(3)(b) for the purposes of this application, it is not necessary that I canvass these matters in any further detail.

Since the adequacy of the plaintiff's explanations for the delay in commencing proceedings against the second defendant is under challenge, it becomes relevant to set out the details of the procedural chronology of relevant events concerning the proceeding. With the agreement of the parties, the following procedural chronology draws upon the evidence within the affidavits and the record of applications and orders annotated on the court's file.

On 29 June 2005 the plaintiff consulted her present solicitor with a view to making a claim for damages in respect of the injuries she received in the collision. On the same day, the plaintiff completed a motor accident claim form nominating the Nominal Defendant as the defendant because the trailer was unregistered and uninsured. That claim form was served on the Nominal Defendant in a timely manner.

On 26 September 2005, Allianz Australia Insurance Limited, acting on behalf of the Nominal Defendant, issued a notice under s 81 of the MAC Act denying liability for the plaintiff's claim.

On 17 September 2007 an application was made by Allianz for a certificate of exemption from the CARS process. On 18 October 2007 the Principal Claims Assessor of the Motor Accidents Authority rejected the application, apparently because the s 81 notice did not contain the word "fault".

On 3 March 2007 and 1 May 2007 the Nominal Defendant issued two amended s 81 notices in respect of the plaintiff's claim. As a consequence of the denial of liability communicated by those notices, on 27 May 2008, the plaintiff commenced the present proceedings against the Nominal Defendant within the time prescribed by statute.

At that time, the plaintiff's claim against the Nominal Defendant was pleaded as alleged negligence on the part of the uninsured driver responsible for parking the trailer in the position where the collision occurred.

The annotations on the court record shows the subsequent procedural chronology to be as follows: (i) On 27 May 2008 the plaintiff filed a statement to the effect that she had complied with ss 70, 72, 108 and 109 of the MAC Act by making her claim against the Nominal Defendant within the times prescribed by statute;

(ii) On 30 June 2008 the Nominal Defendant appeared, through its solicitors Dibbs Abbott Stillman;

(iii) On 27 July 2008 the parties attended before the Judicial Registrar for a status conference, at which time a total of 8 consent orders were made directed at the advancement of the litigation against the Nominal Defendant towards readiness for hearing. For those purposes, a status conference was appointed for 17 December 2008;

(iv) On 25 November 2008 the Nominal Defendant filed its defence to the plaintiff's claim. Essentially, the defence was one of non-admission concerning the circumstances of the collision, a denial of the negligence and the damage as alleged, and it raised allegations of contributory negligence on the part of the plaintiff;

(v) On 17 December 2008, at the status conference, in response to correspondence and issues arising between the parties the Judicial Registrar made further orders concerning preparation to achieve readiness for trial and set the date for trial for a 2 day hearing to commence on 25 March 2009;

(vi) On 25 March 2009 the proceedings remained in the reserve list without being called on for hearing and were marked " not reached' ;

(vii) On 1 April 2008, at the " Not Reached " call-over, a status sheet was completed by counsel for both parties indicating, amongst other matters, that no other parties were involved in the proceedings. At that time the proceedings were re-fixed for a hearing scheduled to commence on 27 May 2009;

(viii) On 15 April 2009 the plaintiff served on the Nominal Defendant a notice to admit the authenticity of an extract of a company search for Gaits Earthmoving Pty Ltd. On the same date, the plaintiff called upon the Nominal Defendant to admit that as at 12 March 2005, the trailer in question bearing NSW vehicle registration plates N 68982 was not registered or insured for the purposes of the MAC Act ;

(ix) On 19 May 2009 the solicitor for the Nominal Defendant wrote to the solicitor for the plaintiff advising that the prime mover that had been used to move the trailer in question into its parked position on the roadway where it was located at the time of the collision was registered as " GAITS1 ", and CTP insurance for that prime mover had been issued by NRMA Insurance Limited;

(x) On 20 May 2009, the solicitor for the plaintiff swore an affidavit that was filed on the next day. That affidavit deposed some of the details of the history of the proceedings as outlined above, and indicated that on the advice of counsel, it was proposed that the driver of the prime mover at the relevant time, be joined to the proceedings;

(xi) On 21 May 2009 the plaintiff filed a notice of motion returnable the next day, seeking to vacate the hearing date due to commence on 27 May 2009.

(xii) On 27 May 2009 the scheduled hearing date was vacated because the plaintiff had acquired information " which may identify the other vehicle". On that date, a further directions hearing was appointed to proceed before the Judicial Registrar on 11 August 2009;

(xiii) On 7 August 2009 the solicitor for the plaintiff prepared and forwarded to the court a certificate of " not readiness " in advance of the directions hearing scheduled for 11 August 2009. The statement prepared and filed by the plaintiff's solicitor concerning these issues referred to a decision having been made to seek to join the driver of the prime mover in question. It also referred to a personal injury claim form having been filled out by the plaintiff and forwarded to the NRMA on or about 29 May 2009. Mention was also made of counsel having been briefed on or about 2 June 2009 to advise on the matters calling for advice. The statement also advised that the plaintiff was waiting for NRMA to issue a s 81 notice. The court was advised that it was estimated that the matter would remain unready for approximately a further 4 months;

(xiv) On 11 August 2009 the Judicial Registrar stood the proceedings over to a case management list for a directions hearing that was scheduled to proceed on 17 November 2009;

(xv) On 11 November 2009 the solicitor for the plaintiff filed a statement indicating that the proceedings were not ready. The basis of that not ready status was said to be that correspondence concerning whether a s 81 notice would be issued by NRMA had only been received by the solicitor for the plaintiff on 8 October 2009, and an application lodged by that insurer for an exemption from the Claims Assessment Resolution Service had been lodged on or about 8 October 2009. Correspondence was also attached from the Motor Accidents Authority indicating that a requested review to determine eligibility for exemption from the CARS process would be determined on 11 November 2009;

(xvi) On 17 November 2009 the Judicial Registrar granted leave to the plaintiff to file and to serve an amended statement of claim by 8 December 2009 for the purpose of joining the second defendant to these proceedings. At that time a further case management listing was scheduled to take place on 9 February 2010;

(xvii) On 9 February 2010 the parties requested the Judicial Registrar to stand the matter over pending the outcome of other proceedings involving an application to the High Court for special leave to appeal from the decision of the NSW Court of Appeal in the matter of Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323. The outcome of that case was relevant to the interpretation of a number of statutory provisions that the parties conceded to be relevant to these proceedings;

(xviii) A further case management listing for directions in these proceedings was then scheduled to take place on 23 April 2010;

(xix) On 1 March 2010 the plaintiff's solicitor filed a notice of motion seeking an extension of time until 15 April 2010 for the filing of the proposed amended statement of claim;

(xx) On 12 March 2010 the High Court granted Special Leave to appeal in Zotti v Australian Associated Motor Insurers Limited [2010] HCAASP 30;

(xxi) On 19 March 2010 the Judicial Registrar made consent orders as requested in the plaintiff's notice of motion filed on 1 March 2010;

(xxii) On 17 May 2010 the Judicial Registrar was advised that a decision in the matter of Zotti was still pending in the High Court. These proceedings were then stood over to a case management directions hearing on 12 July 2010, with orders for any further notices of motion to be filed within 14 days. I was informed that during those events the appeal in the matter of Zotti did not proceed as that case was subsequently settled;

(xxiii) On 24 May 2010, the second defendant, NRMA Insurance Limited, filed an appearance in these proceedings. As yet, in these proceedings, no defence has been filed by the second defendant;

(xxiv) On 2 July 2010 the second defendant filed the present notice of motion seeking dismissal of the plaintiff's proceedings;

(xxv) On 12 July 2010 the Judicial Registrar stood the proceedings over to a case management directions hearing scheduled to take place on 27 August 2010, thereby vacating the notice of motion returnable on 23 July 2010 and re-fixing the hearing of that motion for 27 August 2010;

(xxvi) On 27 August 2010 the plaintiff's proceedings were stood over to a case management listing scheduled to take place on 25 November 2010. At that time the second defendant's notice of motion filed on 2 July 2010 was fixed for hearing on 4 November 2010;

(xxvii) The hearing of the second defendant's motion took place on 4 November 2010. As the respondent/plaintiff claimed the applicant/second defendant's futility argument came as a surprise. In those circumstances I gave leave for the respondent/plaintiff to file written submissions on the point to supplement the oral submissions made at the hearing of the application. Those written submission were received on 9 November 2010. The applicant/second defendant's submissions in reply were received on 18 November 2010;

(xxviii) I have vacated the case management listing for 25 November 2010 pending the determination of this motion. Legislation

In this case, the plaintiff must satisfy 2 legislative requirements concerning the provision of full and satisfactory explanations for the delay in bringing her proceedings against the second defendant : s 73 and s 109 of the MAC Act.

The late making of motor accident injury claims is governed by s 73 which requires that the full and satisfactory explanation should be at first instance provided to the insurer : s 73(1), and an insurer may apply to the court to have the proceedings dismissed on grounds of delay : s 73(5), in which case the court must dismiss the late made claim unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim : s 73(7).

On behalf of the applicant/second defendant, it was conceded that on a consideration of the requirements of s 73, the onus was on the applicant/second defendant to demonstrate that the explanation proffered by the respondent/plaintiff was neither full nor satisfactory. The position is different with regard to the explanation required under s 109, where the plaintiff, as an applicant for the exercise of discretion, bears the relevant onus.

There are time limitations on the right of a claimant to commence court proceedings for motor accident injuries. After the expiry of 3 years from the date of injury, a claimant is not entitled to commence proceedings without the leave of the court : s 109(1). Such leave must not be granted in the absence of a full and satisfactory explanation for the delay in bringing the proceedings: s 109(3)(a).

In this case, as a result of a concession made on behalf of the respondent/second defendant, the plaintiff is not required to address or satisfy the monetary threshold provided by s 109(3)(b) of the MAC Act.

The Nominal Defendant, the first defendant in these proceedings, took no part in this procedural motion.

As the moving party, the second defendant argued that it would be futile to permit the plaintiff to proceed in this case : Salido v Nominal Defendant (2003) 32 NSWLR 525, per Gleeson CJ at pp 532-533. It was argued that this was so because the plaintiff's entitlement to proceed was dependent upon a temporal connection being established between the positioning and presence of the trailer on the roadway, and the collision in question. That argument proceeded to require that at the time of the collision, the trailer in question formed part of the prime mover to which the CTP policy attached.

The applicant/second defendant argued there was no such temporal connection, thus mandating a finding that there was no "injury" sustained by the plaintiff that attracted the operation of the MAC Act and the remedies available to an injured person within the scheme of that Act. In this regard, the applicant/second defendant relied upon the decision in Zotti v Australasian Motor Insurers Ltd & Anor [2009] NSWCA 323 to argue, on the basis of that authority, that the plaintiff's injury was not "caused during" a collision involving the "use" or "operation" of a motor vehicle.

The applicant/second defendant argued that it was pointless to consider the explanations given for the delay in bringing the claim against it because it was, in the light of the preceding argument, futile to do so as the collision in question did not occur during the parking, use, or operation of a motor vehicle.

In contrast, on behalf of the respondent/plaintiff, it was submitted that the decision in Zotti was arguably distinguishable in this instance. The respondent/plaintiff further argued that because the decision in Zotti was arguably distinguishable, it could not reasonably be said that when her case was taken at its highest, it was bound to fail, as was submitted by the applicant/second defendant. The plaintiff's position was that a full and satisfactory explanation for delay had been provided.

In the paragraphs that follow I set out my consideration of the two principal issues identified as calling for decision in this motion.

The applicant/second defendant has pointed to what it submitted was the relatively sparse nature of the affidavit of the plaintiff, which after recounting the events of the collision, in effect indicated she had instructed her solicitors to bring a claim for damages as a result of the collision in question, together with the complete absence of any affidavit from the plaintiff's solicitor, to argue that the explanation proffered for the delay is neither full nor satisfactory.

In response, the respondent/plaintiff has argued that it clearly emerges from the facts outlined by the plaintiff, and from the procedural chronology of the matter, which is self-evident, that a full and satisfactory explanation had been given for the delay in proceeding against the applicant/second defendant.

On consideration of the competing arguments, I accept the submission made on behalf of the respondent/plaintiff for the reasons that follow.

It is plain that the proceedings against the first defendant had been commenced by the plaintiff in a regular manner that did not involve any procedural default.

The plaintiff's recognition of her need to join the second defendant to these proceedings only arose after the time when the 3 year period contemplated by s 109(1) had already elapsed without any relevant default on the part of the plaintiff. That need only arose as a consequence of investigations undertaken by the first defendant and correspondence from the first defendant to the plaintiff's solicitor. There was no evidence that before 19 May 2009, which was when information came to light about the identity of the relevant prime mover, that the plaintiff, or someone acting on her behalf, either knew, or ought to have known, of the facts that gave rise to the potential for the involvement of the second defendant in the proceedings.

Until the relevant facts concerning the prime mover became known to the plaintiff and her advisors, making it apparent that the second defendant ought to be joined, there was no need or basis upon which the plaintiff, or her solicitor, were required to take steps in the proceedings, other than to await the allocation of a fixture for hearing. There was no relevant gap that emerged in the timing of events that required explanation in respect of that period.

Until the potential for the involvement of the second defendant became known to the plaintiff's side, which arose purely fortuitously and due to investigations undertaken by the representatives of the first defendant, who later shared that information with the plaintiff, there was no relevant delay in the procedural sense that required explanation.

The interval of time between May 2009 to August 2009, when the claim form directed at the second defendant was signed and then later served on the insurer, was not significant in the context of this case where the primary investigations concerning the collision had been undertaken by the police, and the description and apparent identity of the trailer was known, the trailer being the only other relevant vehicle at the collision scene.

In these circumstances, viewed against the chronology I have outlined, having regard to the true matters in issue, I consider that the absence of any affidavit evidence from the plaintiff's solicitor is immaterial in this case. I consider this to be so especially where a sufficient explanation emerges from the available material in the affidavits on the court's file, when viewed as a whole.

No arguments were directed at any relevant prejudice to the second defendant having regard to the fact that the police and the first defendant have carried out relevant investigations. I do not consider that any disentitling prejudice to the second defendant relevantly arises.

The elements within the concept of "full and satisfactory explanation" as required by s 66(2) of the MAC Act are contextual and involve an explanation of the conduct, knowledge and belief of the claimant from the time of the injury until the time the explanation is proffered : Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 per Gleeson CJ at p 645. The need for a full and satisfactory explanation arises if there is a relevant procedural delay to be explained from within the factual context.

In my view, a reasonable person in the position of the claimant, having engaged a solicitor to act for her within the prescribed time, and assuming reasonably, as I infer from the procedural chronology, that her claim was proceeding in a regular manner on the facts known to her and to her solicitors, would have acted in the same manner as the plaintiff in this case : Russo, p 645. In this regard, I consider that the plaintiff's "delay" in not earlier seeking to join the second defendant to these proceedings has been fully and satisfactorily explained.

In my view, unlike the position in many cases involving a consideration of s 109(3)(a) delay issues, the chronology of events emerging from the evidence in this unusual case adequately establishes the matters relevant to a consideration of the late claim against the second defendant without there being a need in this case for the plaintiff's solicitor to tediously recount and annotate the same facts in a formal affidavit : Walker v Howard [2009] NSWCA 408, per Allsop P, at [104]. This is especially so where there was no substantial dispute over the chronology of relevant events.

I therefore conclude that the plaintiff has provided a sufficiently full and satisfactory explanation for the delay in seeking to join the second defendant to the proceedings, thus satisfying the requirements of ss 73 and 109(3)(a) of the MAC Act. I consider that once the plaintiff's legal advisors became aware of the potential need to join the second defendant to these proceedings, they acted with reasonable and due despatch.

On a consideration of the applicant/second defendant's futility argument, based on the decision in Salido v Nominal Defendant, I am persuaded that in this case, the argument is flawed, for the reasons that follow.

The starting point of the analysis of the relevance of the decision in Zotti to the facts of this case is the definition of "injury" under s 3 of the MAC Act, which has been the subject of amendments, but which, as at the date of the collision, relevantly provided: " injury :

(a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use of operation of the vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle, or

(ii) a collision, or action taken to avoid a collision, with the vehicle, or

(iv) such use or operation by a defect in the vehicle …"

The respondent/plaintiff argued that provision may be construed to require the following elements: (a) personal or bodily injury;

(b) caused by the fault of the owner or driver of a motor vehicle in the use or operation of that vehicle;

(c) if, and only if, the injury is caused during one of the activities described in s 3(a)(i) - (iv) of the definition of injury, namely driving, avoiding action, loss of control of the vehicle or use due to a defect in the vehicle.

Specifically, the respondent/plaintiff argued that when considering the definition section, one must distinguish between the concepts of "fault", "injury" and the factual circumstances described in s 3(a)(i) - (iv).

The factual position in Zotti was that there was a collision between two motor vehicles that was caused by the fault of one of the drivers of those vehicles. As a result of that collision, oil had been left on the surface of the road. Some time later, well after the two motor vehicles had been towed away from the scene, the plaintiff became injured when he slipped and fell on that oil. He then sued the driver of the vehicle responsible for the earlier collision. Crucially, in Zotti, the plaintiff's injury which occurred at the time of his fall, did not occur during the collision, and on this basis, in Zotti, it was determined that the circumstances of the plaintiff's injury did not fall within the definition of injury in s 3 of the MAC Act.

The respondent/plaintiff argued that at its most basal level in this case, her case was distinguishable from Zotti in that she was injured at the actual time of the collision with the trailer, not, as in Zotti, some 2 or so hours after the relevant collision that had left oil on the roadway as an aftermath of the collision.

Accordingly, it is apparent that it is arguable that the temporal connection between the relevant events in each of these two cases is, on analysis, quite different.

Whilst Zotti is authority for the proposition that the "injury" must be contemporaneous with one of the circumstances described in s 3(a)(i) - (iv), I consider that it does not go so far as to require that "fault" must, of necessity, be contemporaneous with any of the matters described in s 3(a)(i) - (iv), as was submitted by the applicant/second defendant, to be the requirement in this case.

The respondent/plaintiff has submitted, correctly in my view, that the general law of negligence has never required that a relevant breach of duty and the resultant damage need occur simultaneously. I accept the submission that s 3 of the MAC Act does not alter the common law position in this regard.

In this case, the argued "fault" can be categorised in one of two ways.

First, once it is accepted, as I do, that the proposition of "fault" involving the negligent parking of the vehicle comprising the trailer and the attached prime mover and the circumstances in s 3(a)(i) - (iv) concerning the collision, need not be contemporaneous, it becomes evident that the respondent/plaintiff has demonstrated a triable issue.

Secondly, at a trial it is open for the respondent/plaintiff to argue that the parking of the trailer while it was part of the composite vehicle comprising the prime mover and trailer, gave rise to a potentially continuing tortuous liability because of the position and manner in which the trailer had been left, in the same way that a defectively repaired footpath or negligently manufactured goods, could give rise to a continuing tort. In that sense, the fault was contemporaneous with one of the circumstances described in s 3(a)(i) - (iv), namely the collision.

I consider that on either of these analyses, on an interlocutory analysis, the respondent/plaintiff has demonstrated a triable issue that renders unavailable the futility argument raised by the applicant/second defendant.

For the reasons I have outlined, I consider that the facts of this case, when considered at this interlocutory level, raise a reasonable basis for arguing that the facts in Zotti are distinguishable, such that the decision in Zotti does not deprive the respondent/plaintiff of an arguable case at a trial : General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 12.

First, the current case is arguably distinguishable from Zotti because on the facts of this case, the injury and the collision were contemporaneous.

Secondly, it is arguable that Zotti is not necessarily authority for the proposition that "fault" and the matters set out in s 3(a)(i) - (iv) need be contemporaneous; the argument that they need not of necessity be so is open for the respondent/plaintiff to argue at a trial.

Thirdly, even if Zotti is authority for the proposition that "fault" and the matters described in s 3(a)(i) - (iv) need to be contemporaneous, I consider that it is open for the respondent/plaintiff to argue that the relevant fault as claimed, was continuing in its effect, and remained operative at the time of the collision.

The final outcome of the respondent/plaintiff's argument, seeking to distinguish the decision of a 5 member bench of the Court of Appeal in Zotti, and which followed the dicta of the High Court in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568, is not a matter that can be resolved at this interlocutory stage. All I am required to decide is whether the argument invoked by the respondent/plaintiff is available as a triable. I have determined that this is the case. Accordingly, the course sought here by the respondent/plaintiff cannot be reasonably characterised as being futile : General Steel.

I therefore decline to dismiss the plaintiff's proceedings against the applicant/second defendant on the arguments raised.

The applicant/second defendant has failed in its motion seeking to strike out the plaintiff's claim against the second defendant. It therefore follows that the unsuccessful applicant/second defendant must pay the respondent/plaintiff's costs of the motion.

I make the following orders: (a) The applicant/second defendant's motion is dismissed;

(b) The applicant/second defendant is to pay the respondent/plaintiff's costs of the motion filed on 2 July 2010;

(c) The vacated case management listing that was scheduled to take place on 25 November 2010 is rescheduled to take place before the Judicial Registrar at 9.30am on Monday 7 February 2011;

(d) Liberty to apply on 7 days notice if further orders are required.

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