Naw Eh Soe v Alberto Carapella; Saw Rain Bow v Alberto Carapella; Naw Su Su Bow v Alberto Carapella; Moe Moe Aye v Alberto Carapella [2014] NSWSC 1644

Supreme Court New South Wales

Medium Neutral Citation: Naw Eh Soe v Alberto Carapella; Saw Rain Bow v Alberto Carapella; Naw Su Su Bow v Alberto Carapella; Moe Moe Aye v Alberto Carapella [2014] NSWSC 1644 Hearing dates: 7 November 2014 Decision date: 20 November 2014 Jurisdiction: Common Law Before: Hamill J Decision: In each case: (1) The proceedings are dismissed pursuant to s 73(7) Motor Accidents Compensation Act 1999 (NSW). (2) The plaintiff is to pay the defendant's costs of and incidental to the notice of motion. (3) The plaintiff is to pay the defendant's costs of the proceedings. Catchwords: CIVIL LAW - nervous shock - psychological injuries - statutory limitations - dismissal of proceedings - full and satisfactory explanation for delay Legislation Cited: Civil Liability Act 2002 (NSW) Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Emad Trolleys Pty Limited v Shigar [2003] NSWCA 231 Gifford v Strang Patrick Stevedoring [2003] HCA 33; 214 CLR 269 Wicks v State Rail Authority of New South Wales [2010] HCA 22; 241 CLR 60 Category: Interlocutory applications Parties: Naw Eh Soe (Plaintiff) Saw Rain Bow (Plaintiff) Naw Su Su Bow (Plaintiff) Moe Moe Aye (Plaintiff) Alberto Carapella (Defendant) Representation: Counsel: T McKenzie (Plaintiff) A Katsoulas (Plaintiff) D Hanna (Defendant) Solicitors: Taylor & Scott Lawyers (Plaintiff) Moray & Agnew Lawyers (Defendant) File Number(s): Soe - 13/216306 Rain Bow - 13/216317 Su Bow - 13/216326 Aye - 13/216293 Publication restriction: Nil

Judgment 1On 7 November 2014 I heard four related notices of motion by the defendant seeking orders for the dismissal of proceedings under s 73(7) of the Motor Accidents Compensation Act 1999 (NSW) ("the Act"). Section 72 of the Act provides that a claim must be made within 6 months of the motor accident to which the claim relates. Section 73 provides for the late making of claims where a "full and satisfactory" explanation for the delay is provided. Section 73(7) provides that the Court "must" dismiss the proceedings on a late claim unless satisfied that a full and satisfactory explanation has been provided. 2The background of the matter can be stated shortly. On 30 May 2010 there was a car accident in which a 3 ½-year-old girl ("Carina") was seriously injured. She suffered a number of injuries including a severe brain injury, injuries to her neck, back and right shoulders, an injury to her eyes, an injury to her thoracic spine, fractures to the ribs and shock. As I understand it Carina is a plaintiff seeking damages in proceedings in this Court. 3The present plaintiffs are respectively her mother, father, aunt and grandmother. The present plaintiffs sought damages in respect of the psychological injuries or nervous shock which they sustained as a result of witnessing or becoming aware of the horrific nature of the injuries to Carina. Such injuries are generally governed by the provisions in ss 30-33 of the Civil Liability Act 2002 (NSW). Because the injuries to Carina and consequent psychological injuries to the present plaintiffs arose as a result of what was unquestionably a motor vehicle collision, the provisions of the Act apply. 4In the course of the hearing, counsel for the plaintiffs mounted an argument that the Act did not apply to the present case because the injuries (which is to say mental harm or psychological injuries) were not occasioned "during" the driving of a motor vehicle or the collision: see s 3A of the Act and the definition of claim in s 3 of the Act. That was a surprising submission given that the statement of claim in each case commences with the words: "1. The defendant is sued as the owner and or driver of a motor vehicle pursuant to the Motor Accidents Compensation Act." 5 A good deal of time was taken up in the course of the day during which counsel attempted to advance that submission. In particular he sought to place reliance on the following cases and passages from those cases: Emad Trolleys Pty Limited v Shigar [2003] NSWCA 231 at [82]; Wicks v State Rail Authority of New South Wales [2010] HCA 22; 241 CLR 60 at [37] and [44]; Gifford v Strang Patrick Stevedoring [2003] HCA 33; 214 CLR 269 at [39] and [44]. After the luncheon adjournment, counsel for the plaintiffs indicated that he no longer pressed the submission that the case was not governed by the Motor Accidents Compensation Act. Accordingly, it is not necessary to deal with that rather adventurous, novel and (adopting the words of counsel for the defendant) self-destructive submission. 6Further, after the luncheon adjournment, counsel for the plaintiffs indicated that he consented to the orders sought by the defendant with respect to the claims made by Carina's aunt (Moe Moe Aye) and grandmother (Naw Su Su Bow). In view of the evidence, that concession was soundly based and, upon the defendant's application, I acted upon it. Accordingly, at the conclusion of the hearing on 7 November 2014, I made the following orders in respect of proceedings number 2013/216306 and 2013/216293: (1)The proceedings are dismissed pursuant to s 73(7) of the Motor Accidents Compensation Act 1999 (NSW) due to breach of s 73(1) of the Motor Accidents Compensation Act 1999 (NSW). (2)The plaintiff to pay the defendant's costs of the motion. (3)The plaintiff to pay the defendant's costs of the proceedings. 7With respect to the statements of claim commenced by Carina's mother and father, counsel for the plaintiffs sought an adjournment. The adjournment was sought in the face of irresistible submissions made by the defendant that none of the plaintiffs had provided evidence that would satisfy the Court that they had provided "a full and satisfactory explanation for the delay in making the claim." 8At the conclusion of these submissions, I indicated that I proposed to refuse the adjournment application and indicated that I would provide reasons for that decision along with reasons for the ultimate disposition of the defendant's notice of motion. 9Section 56 (1) of the Civil Procedure Act (2005) provides: "1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3): (a) any solicitor or barrister representing the party in the proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. (6) For the purposes of this section, a person has a "relevant interest" in civil proceedings if the person: (a) provides financial assistance or other assistance to any party to the proceedings, and (b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings." 10Section 58 provides: (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. 11Section 66 provides specifically for the adjournment of proceedings: (1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings. (2) If a judicial officer is not available at the time appointed for the hearing of any proceedings, a registrar may adjourn, to a later time on the same day or to a later specified day, any matters listed for hearing by the judicial officer at the appointed time. 12The history of this case is completely unsatisfactory. Whether that is the fault of the individual plaintiffs is not a matter ultimately necessary for me to resolve. However, a short chronology of the proceedings demonstrates why it is not in the interests of justice to grant the adjournment. 13Carina was injured on 30 May 2010. In March 2012 her mother was admitted to the Royal North Shore Hospital. During the course of her admission it was discovered that she was suffering from psychological injuries resulting from Carina's injuries. 14In April 2012 each of the four plaintiffs received advice from a solicitor in relation to their rights to bring proceedings under the Act for their psychological or psychiatric injuries. It seems that claim forms were sent to them by their solicitor on 24 May 2012 but no claim forms were served on the defendant until October 2012 and November 2012. There is no satisfactory explanation for this delay. It was put to me in argument today that the plaintiffs were not aware of the urgency of the application. Why and how that could be so is not explained. It is surprising given the involvement of solicitors from April 2012 at the latest. By that time, on one view, the claims were already almost 18 months out of time. 15The urgency was obvious and arose from the clear provision of the Act that any claim was to be made "within 6 months of the motor accident". 16On 12 November 2012 the defendant's third-party insurer wrote to the solicitor for the plaintiffs in the following terms: "Section 72 (1) of the Motor Accidents Compensation Act 1999 (NSW) (as amended) states claims must be made within 6 months of the date of the accident. We received your clients personal injury claim form on 9 November 2012, which is not within the statutory time limit. As a result, we reject your clients claim. Your client must provide a full and satisfactory explanation for the delay in making the claim in accordance with section 73. The explanation should be in the form of a signed statement. It must include a full account of your clients conduct (including that actions, knowledge and belief) from the date of the accident until the date the explanation is provided. The explanation is not satisfactory unless a reasonable person in the position of the claimant would have failed to comply with section 72 (1), or would have been justified in experiencing the same delay." 17There was no response to that correspondence. In the plaintiffs' affidavits filed in advance of this hearing on behalf, no attempt was made to explain the reason for failing to respond to that very straightforward letter from the solicitors for the defendant's third-party insurers. 18In written submissions filed in advance of the hearing, counsel for the defendant had pointed out that the delay following the letter of 12 November 2012 was unexplained and that this meant that, whatever be the situation with other periods between the date of the accident and the notification of the claim, it could not be said that the plaintiffs had provided a "full and satisfactory explanation" for the purposes of ss 72-73 as that expression is defined in s 66 of the Act. Section 66 provides: "In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation." 19The critical words for the purpose of that submission are "the date of providing the explanation". 20On 24 May 2013 - which is to say around 6 months after the first letter - the insurer again wrote to the plaintiffs' solicitors seeking a full and satisfactory explanation for the delay. 21As I have said, the defendant's counsel had stressed in advance of the hearing that there was no explanation at all for the delays following the letters asking the plaintiffs' solicitors for an explanation for the delay. When the matter came on for hearing before me, the plaintiffs sought to read an affidavit from the plaintiffs' solicitor which attempted to fill that gap. Amongst the many documents annexed to that affidavit, there was a letter of 13 January 2014 in which the plaintiffs' solicitor advised their clients of the 6 month statutory time limit. I was told from the bar table that this is the first time that the plaintiffs had been made aware of the necessity for prompt action. How that could possibly have occurred in the context of experienced solicitors with knowledge of the provisions of the Act is a mystery to me. 22In any event, the fact of the matter is that no explanation has been provided to explain the series of delays from 12 November 2012 to the listing of the matter for hearing that would possibly come within the definition of a full and satisfactory explanation. The explanations provided are not full - there remain many gaps which are unexplained. The explanations are not satisfactory - there are periods of months between the time that the plaintiffs' solicitors wrote to the plaintiffs and the plaintiffs taking any action at all. 23The case was exempted from the "CARS" regime as a result of the fact that the defendant did not accept the plaintiff's explanation for the failure to file its claim within the six-month period required by the legislation. 24On 16 July 2013, statements of claim were filed. At that point, no explanation had been provided for the delay, let alone a full and satisfactory one. 25On the 5 September 2013 the defendant filed its notice of motion seeking dismissal of the claims under s 73(7). The matter was listed for hearing on 28 August 2014. The plaintiffs were not able to proceed on that date and an affidavit of their solicitor explained, as best as he could, the reasons that it was not able to proceed. Associate Justice Harrison granted the application to adjourned the proceedings. 26The matter was then adjourned until 7 November 2014 with orders for the filing of affidavit material and submissions. It became clear in the exchange of written submissions, that the material filed on behalf of the plaintiffs failed to provide a full and satisfactory explanation for the delay. Under force of argument, so much was conceded by counsel for the plaintiffs. 27It was as a result of the patent deficiencies in the plaintiffs' evidence that the plaintiffs' lawyers served upon the defendant a further affidavit of its solicitors at about 9:55 am on the day of the hearing. As a result of that action, it was necessary to adjourn briefly while the defendant's solicitor had an opportunity to peruse that material. In spite of its late service, the defendant did not object to the reading of that affidavit. 28However it became clear in the course of the defendant's submissions that the affidavit did not come close to filling the gaps or providing cogent explanations for the deficiencies in the plaintiffs' evidence. It was in that context that the plaintiff's counsel sought to adjourn the proceedings again so that material could be provided - if possible - from the plaintiffs. Counsel for the plaintiff candidly indicated that he and his solicitor had attempted to make contact with the plaintiffs to have them attend court on the hearing of the defendant's motion. However, I was told that there has been no response from the plaintiffs. 29In these circumstances it is entirely speculative as to whether the plaintiffs would be in any position to provide further information that would come within the description of a "full and satisfactory explanation" for the delay in making and pursuing their claim. This is particularly so with respect to the period after the plaintiff's admission to hospital when her psychological injuries became known. 30In the circumstances, and applying the relevant statutory provisions, I can see no option but to refuse the application by the plaintiff for a further adjournment of these proceedings. 31Having perused carefully the affidavit material sought to explain or justify the delay, I am unpersuaded that there is evidence that could possibly be considered to satisfy the stringent requirements of s 73(7) as refined by the definition in s 66. It is unnecessary for me to detail the affidavit material. I have enormous sympathy for the parents of Carina. They have obviously had a terrible time as a result of their daughter's serious injuries. I unreservedly accept that they have prioritised her care over the litigation by which they might obtain compensation for their psychological loss. Nevertheless the legislation requires that unless there is a full and satisfactory explanation for the delay from the time of the accident until the time of the explanation the Court "must" dismiss the claim. 32For those reasons the proceedings will be dismissed pursuant to s. 73(7) of the Act. 33Unless an application by either side is made within 7 days the usual cost order will be made. That is to say costs will follow the event and will encompass both the costs of and incidental to the notice of motion as well as the costs of the proceedings. 34In respect of proceedings 2013/216326, 2013/216317, 2013/216326 2013/216293 I make the following orders: (1)The proceedings are dismissed. (2)The plaintiff is to pay the defendant's costs of and incidental to the notice of motion. (3)The plaintiff is to pay the defendant's costs of the proceedings.

********** 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: 23 December 2014