In summary, the High Court held in CSR Limited v Eddy that the NSW Court of Appeal’s decision in Sullivan v Gordon should be overruled.

Author: Peter Hunt

Judgement Date: 2nd September, 2005

Citation: Dollak -v- Schilpzand [2005] District Court, Plaint No.54/05 2 September 2005

Jurisdiction: District Court

In Brief

  • A certificate issued by a CARS Assessor in respect of a Special Assessment pursuant to Section 96 of the Motor Accidents Compensation Act 1999, certifying that a late claim may not be made, does not permit a Claimant to commence Court proceedings.

Background

On 2 September 2005, Delaney DCJ delivered judgment in the District Court at Parramatta in respect of an Application by the Defendant to dismiss the Statement of Claim for breach of, inter alia, Section 108 of the Motor Accidents Compensation Act 1999.

The Claimant was injured in a motor accident on 6 June 2002.  He gave notice of his claim on 26 August 2003, some one year and two months after the accident.

The insurer subsequently rejected the Claimant’s explanation for delay and the Claimant lodged an Application for Special Assessment as to whether the late claim should be allowed to proceed.

On 24 November 2004, a CARS Assessor issued a certificate (with reasons) stating that a late claim could not be made, on the basis that the Claimant did not have a full and satisfactory explanation for his delay.


Delaney DCJ

Before His Honour, the Claimant argued that because the certificate issued by the CARS Assessor in respect of the Special Assessment was issued pursuant to Section 94 (5), Section 108 (1) (b) allowed proceedings to be commenced on the basis that one of the pre-conditions for the commencement of proceedings have been met.

However, Delaney DCJ rejected the Claimant’s argument. 

At paragraph 17 of his Judgment, Delaney DCJ observed as follows:

“It seems that the most likely construction is at the word “certificate” in Section 108(1) (b) is a certificate issued under Section 94 (5) in respect of the assessment of a claim on the issue of liability and/or damages and does not relate to a certificate given after a Special Assessment pursuant to Section 96”.

As such, His Honour found that where a Claimant was issued a certificate indicating that a late claim could not be made, following a Special Assessment, the certificate did not fall within the ambit of Section 108 and, as such, the Claimant was not entitled to commence proceedings.


Implications

Judge Delaney has confirmed that Section 108 should be interpreted such that a Claimant may only commence Court proceedings where he or she has the benefit of either an exemption certificate or a certificate following an assessment of liability and/or damages.  A certificate in respect of a Special Assessment does not permit the Claimant to commence proceedings.