Hardham v Syd Flood (t/as Topcat Bobcat Hire) [2001] ACTSC 21 (16 March 2001)

Last Updated: 11 June 2002

Ivon Rohan Shaw Hardham v Syd Flood (t/as Topcat Bobcat Hire) [2001] ACTSC 21 (16 March 2001)

CATCHWORDS

PRACTICE AND PROCEDURE - Extension of time under Motor Accidents Act 1988 (NSW) - Full and satisfactory explanation for failure to comply with statutory time limits - Claim brought at common law before John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36.

Motor Accidents Act 1988 (NSW)

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36

Moon v Moon [2001] ACTSC 17

No. SC 47 of 1998

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 16 March 2001

1. This is an application pursuant to a notice of motion filed on 7 March 2001 to extend the time within which the plaintiff may give the required notices to comply with the Motor Accidents Act 1988 of New South Wales. Leave was sought to extend the time to serve formal notices on the insurer as required under the Act. This was not an application for extension of time to bring the substantive action. The defendant neither consented nor opposed the application, and I granted the relief sought, but indicated that I would publish my reasons, as it seemed to me that this application, which was the first that I had encountered, raised issues that may become more common in this jurisdiction. The general principle to be applied in an application to extend time under the New South Wales legislation has recently been restated by Higgins J in Moon v Moon [2001] ACTSC 17.

2. Until the decision of the High Court in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, it was the established common law that a person may bring a claim for damages for personal injuries in this court, provided the plaintiff had sufficient nexus with this court, wherever the accident occurred, and that the substantive law to be applied to the determination of that claim would be the law of the Australian Capital Territory. It followed that a plaintiff who was injured as a result of a motor vehicle accident in New South Wales could bring a common law claim in this Territory, and did not have to comply with the notice periods set out in the Motor Accidents Act 1988.

3. The substantive claim in this action is a claim for damages for personal injuries arising out of the use of a motorised bobcat on the plaintiff's property at Wamboin, which is in New South Wales, but adjacent to Canberra in March 1996. The affidavit filed in support of the notice of motion states that the solicitor who then had carriage of the matter formed the view that, as the plaintiff has close connections to the Australian Capital Territory, and as he was treated here immediately after the accident and subsequently, and as the defendant is resident in this Territory, it would be appropriate to bring the claim in this court. It followed at that time that the claim would proceed by way of a common law claim, and would fall for determination, both as to liability and assessment of damages, pursuant to the common law of the Australian Capital Territory. Accordingly, the plaintiff's solicitor gave no thought to complying with the various notice provisions under the Motor Accidents Act 1988 of New South Wales. The action was commenced by originating application in January 1998, and has proceeded though various interlocutory steps to prepare for trial. The defendant has been involved in these pre-trial processes, and has not raised any issue of prejudice in relation to the statutory time limits.

4. It has now come to the attention of the plaintiff's legal advisers that they have not complied with the notice requirements under the Motor Accidents Act. There is a discretion to extend time under section 43A of that Act if a full and satisfactory explanation is provided for the failure to comply. The Master has jurisdiction to entertain such an application pursuant to the amendments to the Rules effective from December 2000- Order 61A both as a consequence of entertaining the substantive motor vehicle claim pursuant to O61Ar 1 (aa) and as an exercise of discretion under an interstate limitation law pursuant to O61Ar1(y). While the practice books published on the exercise of this discretion provide some guidance to the factors which might amount to a full and satisfactory explanation, they do not address the issue before me, being the failure to comply because of the settled view, prior to the decision of the High Court which altered the common law of Australia, that in the case of an interstate tort the law to be applied to the determination of a claim was the law of the forum.

5. It seems to me that this is a full and satisfactory explanation, and that, where a claim has been brought in this court pursuant to the belief that it is to be determined as a common law claim, failure to comply with the time limits under the New South Wales act can be excused, particularly when, as in this case, the matter has been promptly served on the defendant, who has put in a defence and has been engaged in the appropriate procedures to get the matter on to trial. Obviously, as the months pass from the decision of the High Court, it should be assumed that practitioners in this Territory will be familiar with its effect, and applications such as this one, where necessary, should be brought promptly to regularise proceedings which now must proceed to trial as matters to be dealt with under the appropriate New South Wales law.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 16 March 2001

Counsel for the Plaintiff: Dr R. O'Hair

Solicitor for the Plaintiff: Peter R Glover

Solicitor for the Defendant: Mr A. Williams

Date of hearing: 9 March 2001

Date of judgment: 16 March 2001