Bazley v Nominal Defendant [2006] QDC 379

DISTRICT COURT OF QUEENSLAND CITATION: Bazley v Nominal Defendant [2006] QDC 379 PARTIES: PAUL MICHAEL BAZLEY Applicant AND NOMINAL DEFENDANT Respondent FILE NO/S: BD 1567 of 2006 DIVISION: PROCEEDING: Originating Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 10 November 2006 DELIVERED AT: Brisbane HEARING DATE: 16 October 2006 JUDGE: McGill DCJ ORDER: Application dismissed with costs. CATCHWORDS: MOTOR VEHICLES – Compulsory insurance – pre-litigation procedures – complying notice but no action within limitation period – whether limitation period can be extended. Motor Accident Insurance Act 1994 s 57(2)(b). Morrison-Gardiner v Car Choice Pty Ltd [2004] QCA 408 – applied. Winters v Doyle [2006] QCA 110 – followed. COUNSEL: R. C. Morton for the applicant F. H. Dawson for the respondent SOLICITORS: Kerin & Co for the applicant Biggs & Biggs for the respondent [1] This is an application under s 57(2)(b) of the Motor Accident Insurance Act 1994 (“the Act”) for leave to bring a proceeding in respect of a claim, for which a complying notice of claim has been given, more than six months after the notice was given, notwithstanding the expiry of the limitation period. Since s 57 is -- 1 of 8 -- 2 concerned with allowing a proceeding to be brought after the end of the limitation period which otherwise applies to the proceeding, the practical effect of my allowing a longer period is to give an extension of the limitation period so as to allow an action to be commenced now, even though the limitation period has expired. The application was opposed by the respondent, the prospective defendant if a proceeding can now be commenced. Background [2] The applicant claims to have suffered personal injury as a result of a motor vehicle accident on 21 February 2001.1 On that day, he was driving a motor vehicle along Brisbane Street, West Ipswich in the right-hand of two lanes when he came to a halt behind some other vehicles that were stopped at an intersection, because the vehicle at the head of the line was wanting to turn right. He then decided to move into the left lane, which was free ahead. He saw that there was a white vehicle approaching from the rear, but decided there was sufficient room to complete the manoeuvre, and began to move into the left-hand lane. However, the vehicle approaching from the rear did not stop, and collided with the left front corner of the applicant’s vehicle, as a result of which the right front corner of that vehicle struck the vehicle which had been ahead of it in the right-hand lane. [3] After the accident, the applicant and the driver of the vehicle in the right-hand lane stopped and exchanged details, but the driver of the white vehicle did not stop and the applicant could not identify it. He claims that as a result of the collision he suffered injury, particularly injury to the neck. The applicant consulted a firm of solicitors prior to 9 March 2001, as a result of which a notice of accident was completed and forwarded to the nominal defendant under cover of a letter from the solicitors dated 6 April 2001.2 As a result, the nominal defendant had the accident investigated, and the investigator spoke with the applicant, and indeed obtained a statement from him.3 [4] The investigator also spoke with the driver of the vehicle that had been ahead of the applicant, but according to the investigator’s report, this driver refused to supply a statement, and indeed did not wish to be interviewed or assist in any way. She did tell him she was aware of the impact of the applicant’s vehicle, but claimed not to have been aware of any other vehicle. Attempts by the investigator to identify the vehicle that did not stop were unsuccessful. [5] There was initially an issue about the absence of a medical certificate, and a request for further information. However, after the medical certificate was forwarded, the nominal defendant advised on 28 September 2001 that it was satisfied that the requirements of the Act had been complied with, although it went on to deny liability for any injury suffered by the applicant.4 In March 2002, solicitors for the nominal defendant raised an issue about s 37(3), which evidently was then investigated; ultimately, the then solicitors for the applicant drew the attention of the nominal defendant to a particular decision which supported the applicant on this point, and it appears that that issue went away. 1 Affidavit of applicant para 3: the rest of the information about the accident comes from the reports exhibited to the affidavit of Kerin filed 30 May 2006. 2 Affidavit of Black paras 3, 4. 3 Affidavit of applicant para 7. 4 Affidavit of Kerin filed 30 May 2006 para 10. -- 2 of 8 -- 3 [6] On 11 December 2002, the nominal defendant’s solicitors advised they were willing to attend a compulsory conference under s 51A. However, no conference was then called. During 2003, an offer to settle was made on behalf of the applicant, and an offer to settle was later made on behalf of the nominal defendant. Evidently, that was not regarded as acceptable. By August 2003 the applicant was only able to do light duties at work, and was continuing with physiotherapy, and had had further x-rays taken.5 There were further investigations undertaken by a doctor, of which the solicitors were informed by the applicant on 7 October 2003. He contacted them again on 26 November 2003, discussing again his worsening condition, and he spoke again by telephone on 2 December 2003. Possibly as a result, on 5 December 2003 the solicitors wrote to the nominal defendant’s solicitors advising that he was seeking further medical opinion with respect to the injuries.6 The evidence, however, does not disclose any particular steps taken by the then solicitor for the applicant with a view to obtaining any further medical opinion, or that any further medical opinion was subsequently obtained by him.7 [7] The limitation period expired in February 2004 without an action being commenced, or indeed without either the compulsory conference being held or the parties agreeing to dispense with the compulsory conference, or the exchange of mandatory final offers. The solicitor said that his firm changed from a manual to an electronic system of keeping track of critical dates in January 2004, and that as a result of a mistake in the course of changing over to the new system, the incorrect date was entered in the electronic data base as a critical date in respect of this file, as a result of which he was not alerted to the expiration of the limitation period.8 It occurs to me that by January 2004 the problem was not just that the limitation period was shortly to be expiring, but that under the Act there was a good deal which was supposed to have been completed before proceedings were commenced, and at that stage no particular arrangement was in place in order to enable those steps to be completed, either before the limitation period expired, or at any particular time. [8] On 10 March the solicitors for the nominal defendant advised that the offer had been withdrawn, at that point the file was reviewed and it was ascertained that the limitation period had expired.9 The solicitors for the nominal defendant confirmed that they would be relying on the Limitation of Actions Act, and that led the solicitor to investigate the possibility of taking some action to deal with the problem, including by an application under s 57 of the Act. The solicitor spoke to counsel who advised that an application under s 57 would be unlikely to succeed.10 In the light of this, no application was then made, and the solicitor informed the applicant that he should obtain independent advice. That was said in June 2004, and the applicant obtained independent advice the next month from another solicitor.11 [9] As a result, an action was commenced against the first solicitor on 14 July 2005. Because the new solicitor had been told that a barrister had advised there was no 5 Affidavit of the applicant para 14. 6 Affidavit of Black para 10. 7 It appears a further medical report was obtained in August 2004 by the second solicitor: Affidavit of Kerin filed 20 July 2006 para 5. 8 Affidavit of Black paras 12, 13, 14. 9 Affidavit of Black paras 15, 16. 10 Affidavit of Black para 27. 11 Affidavit of applicant paras 24, 26. -- 3 of 8 -- 4 prospect of success on an application under s 57, not much more consideration was given to that point by the new solicitor until a notice of intention to defend and defence were filed on behalf of the first solicitor on 31 August 2005,12 which included the allegation that the applicant had not suffered loss or damage because it remained open to the applicant to make an application under s 57(2)(b). In the alternative, a failure to make such an application was relied on as amounting to a failure to mitigate loss on the part of the applicant. At some point evidently the question of who would pay for such an application was raised, and the insurer of the first solicitor agreed to pay the cost of the application.13 As a result, the applicant agreed to the application being made, and it ultimately came on before me. The authorities [10] The significance of s 57 of the Act in a situation where the limitation period has expired before a proceeding had been commenced was apparently not initially appreciated. It appears from the chronology by the Court of Appeal in Morrison-Gardiner v Car Choice Pty Ltd [2004] QCA 408 that I made the first order giving leave to commence proceedings within a particular time under that provision on 3 June 2004.14 The order was challenged on appeal, and it was not until the decision of the Court of Appeal delivered on 17 September 2004 that it was clear that an order could be made in such circumstances. At paragraph [11], McMurdo P said that, in the light of the legislative scheme as a whole, it was appropriate the court had a discretion to extend the time for bringing a proceeding, notwithstanding the expiration of the limitation period and continued: “In exercising that discretion, a court would, of course, be cognisant of the objects of the Act and of the general considerations apposite to any extension of the limitation period as discussed in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551-4 per McHugh J.” [11] Reference could also be made to the statements by Williams JA at [32] and by Chesterman J at [81]-[82]. It is unnecessary to set out those passages in full. The issue returned to the Court of Appeal in Winters v Doyle [2006] QCA 110, where Williams JA and (subject to an immaterial exception) Fryberg J agreed with the judgment of Keane JA. In that case, an appeal against an order refusing an application for an extension of time under s 57(2)(b) was dismissed, essentially on the bases that the delay in commencing proceedings in a timely fashion was not caused by any difficulties in complying with the requirements of the legislation, but simply by tardiness on the part of the appellant’s solicitor, and that a witness who was of some importance to the defendant’s case had disappeared. [12] Keane JA said at [24]: “It can be seen that each member of this court in Morrison-Gardiner v Car Choice Pty Ltd identified, as a consideration of central relevance to the proper exercise of the discretion conferred by s 57(2)(b) of the MAI Act, the relationship between the delay which has occasioned the need to seek relief from the operation of the statutory time bar and the 12 Affidavit of Kerin filed 30 May 2006 Exhibit SEK 17; affidavit of Kerin filed 20 July 2006 para 3. 13 Affidavit of Kerin filed 20 July 2006 para 11. 14 I certainly made the first of the three orders considered on appeal by the court in that matter. -- 4 of 8 -- 5 plaintiff’s attempts to comply with the requirements of the MAI Act. A plaintiff will usually be able to show good reason for the favourable exercise of the discretion conferred by s 57(2)(b) only if he or she can show that the delay which occurred was occasioned by a ‘conscientious effort to comply’ with the MAI Act.” [13] His Honour continued at [32]: “An applicant would … usually be expected to explain the extent to which compliance with the requirements of the MAI Act hampered the plaintiff in his or her attempts to commence proceedings within the limitation period. … [34] … It is relevant for the plaintiff to show that the delay which has led to the failure to commence proceedings in time is indeed due to the error of the solicitor upon whom the plaintiff was reliant, and not to the plaintiff’s own lack of interest, especially where there are long periods during which, from the respondent’s point of view, the action might seem to have ‘gone to sleep’. To that end, it will often be the case that the nature and extent of a client’s reliance upon his or her solicitor, and the plaintiff’s lack of personal responsibility for the delay which has occurred, can be satisfactorily explained only if the evidence includes an affidavit from the client. [35] In the present case, the absence of evidence from the plaintiff himself is an unsatisfactory aspect of the case made in support of the plaintiff’s application; but it might not have been fatal. The more serious problem for the plaintiff, it seems to me, is that the explanation for the delay which was given did not identify any significant connection between the requirements of the MAI Act and the delay which occurred. It is to be emphasised that the issue here is not whether the plaintiff may reasonably be excused for having relied upon his solicitor to comply with the requirements of the MAI Act. The issue is whether the delay which occurred was related to compliance with the MAI Act. [36] Mr Carmen’s affidavit does not assert that compliance with the MAI Act, or errors on the part of the plaintiff’s solicitor in that regard, caused or even contributed to the plaintiff’s missing the limitation period. He does not suggest that there was a mistake on the part of the plaintiff’s solicitors as to the requirements of the MAI Act.” [14] His Honour subsequently said at [37]: “Mr Carmen did not suggest in his evidence that the need, either to hold a compulsory conference, or to have it dispensed with by the court, had any bearing on the failure to commence proceedings within the limitation period. According to Mr Carmen’s evidence, the plaintiff’s action was not commenced within the limitation period simply because of the unfortunate administrative inefficiency of the plaintiff’s solicitors in November 2003. [38] … There is no suggestion … that the delay in progressing the claim was due to the exigencies of the MAI Act or associated matters, such as the need for the plaintiff’s injuries to stabilise before a compulsory conference could be appointed or an application made to the court to dispense with the need for a compulsory conference.” Analysis -- 5 of 8 -- 6 [15] In my opinion, that decision is the key to the resolution of the question of whether an order should be made in the present case. Is this a case where the applicant’s failure to commence the proceeding within the time limit of the Limitation of Actions Act was due to the restriction on proceedings being commenced prior to the compulsory conference, and the inability of the applicant to call the compulsory conference because the applicant was not in a position to satisfy the statutory pre-conditions of a compulsory conference, in particular being ready for conference and ready for trial as those terms are explained in the Act?15 On the other hand, is this simply a case where the proceeding has not commenced because time was allowed to pass because of the administrative inefficiency of the plaintiff’s solicitors? Just because a notice which was accepted as complying has been given under the Act, the plaintiff’s solicitor is not entitled to allow a matter to drift. [16] There may be in a particular case good reason why it takes some time for the prospective plaintiff to get into a position where it would be sensible to conduct a conference as contemplated by the Act. But it is necessary to show that the delay was attributable to some objective feature flowing from the operation of the Act, as contemplated in Winters, which may well include the need for the plaintiff’s injuries to stabilise before a compulsory conference could be appointed or some application could be made to the court in connection with that. There are suggestions in this case that the condition of the plaintiff was deteriorating to some extent during 2003, and that may well have made it more difficult to hold a compulsory conference. [17] The real difficulty for the applicant in this case is that the evidence really does not support a conclusion that sufficient preparation for a compulsory conference was being prevented by difficulties in obtaining clarification as to the plaintiff’s medical condition and prospects. Although there was some additional medical information made available during 2003, and although the solicitors apparently appreciated the need for some further medical investigation, there is no evidence that this step was taken in a timely way. There is also no evidence that there was any appreciation that steps had to be taken with a view to having a compulsory conference in advance of the expiration of the limitation period, if that could occur. [18] The change to the applicant’s solicitor’s system occurred in January 2004. Presumably up until that time the old system had not drawn the solicitor’s attention to the fact that the limitation period was expiring in February 2004, which suggests there had been a failure to appreciate the significance of the pre-litigation requirements under the Act. There is nothing in the affidavit from the original solicitor for the applicant to indicate any particular plan by which the provisions of the Act can be complied with, either within the time limited by the Limitation of Actions Act, or in a way which enabled proceedings to be commenced at a time which was consistent with s 57 of the Act. There was no indication as to whether any consideration was given at any time after the beginning of 2003 as to whether and when a compulsory conference would be held, or as to what had to be done prior to the time when a compulsory conference could be held. 15 As pointed out by Chesterman J in Morrison-Gardiner (supra) at [44], the details in respect of which parties must prepare for trial and be ready for it are set out in s 51B(5). This is a somewhat artificial concept of ‘readiness for trial’, but at least it encompasses the plaintiff’s having the necessary medical evidence available to go to trial, which in turn may well be dependent upon whether the plaintiff’s injuries have stabilised. -- 6 of 8 -- 7 [19] In my opinion, the evidence in the present case indicates that the comments of Keane JA in Winters at [35] apply equally to this case. The explanation for the delay did not identify any significant connection between the requirements of the Act and the way it occurred, at least up to the point where the limitation period had expired. The Court of Appeal has held that the crucial issue, or at least a very important issue, is whether the delay which occurred was related to compliance with the Act. In the present case, I am not persuaded that the delay which occurred, or at least the early part of the delay until April 2004, was related to compliance with the Act. Once the limitation period had expired, the position was that, for some time at least, no-one thought that it would be appropriate to make an application under s 57. [20] That I think was understandable, at least to the point where judgment was delivered by the Court of Appeal in Morrison-Gardiner (supra), and perhaps for a reasonable period thereafter while the implications of that decision were digested by the legal fraternity. But at some point after that, if an application were to be made under the section it ought to have been made. It seems to me that there is really no very good explanation for the further delay in making the application in this case, except for the fact that the applicant was only interested in making the application once the insurer of the first solicitor agreed to pay the costs of the application. I suppose that for practical purposes prior to that time the applicant’s financial position was such that he was deterred from making such an application. I do not think that a delay brought about simply by poverty is a matter of any great significance, but overall I think that there is still some significance in the facts that the delay in this application, particularly within the last 12 months, has been as great as it has. [21] Another matter which was raised was the significance of the attitude of the witness, and the absence of a statement from the witness. It was submitted that if a trial were to be held in due course, it would be well after the occurrence of the events, so that there would have been the opportunity for people’s recollections to have faded. There is also the consideration that there was no contemporaneous statement obtained from the witness, which was not the fault of the respondent, since the witness refused to provide a statement. It must be said that the evidence of the witness might not have been particularly persuasive anyway, but it may be that her evidence as to not having any recollection of seeing a vehicle such as that described by the applicant would have carried more weight had it been given to a court closer in time to the accident. I do not think this is a factor of any great significance, but it may have some minor relevance and so far as it goes it tells against making an order under the section. The case is in this respect quite unlike Winters, where the disappearance of the witness was regarded as a matter of some considerable significance. [22] It was further submitted by the respondent that there was no need to allow the claim against the respondent to proceed to action, because the applicant had a good cause of action in respect to any loss he had suffered against his first solicitor. That may be correct, but it occurs to me that this is not really a material consideration in relation to this application. The question here is whether the applicant should be given the opportunity to commence proceedings against the respondent to pursue any claim the applicant has against the respondent. It does not seem to me that the existence or otherwise of a claim by the applicant against someone else is of any particular relevance to that question. In the light of this it is not necessary for me to consider the issue, on which some further submissions were made, of whether the damages would be the same in respect of each claim by the applicant. -- 7 of 8 -- 8 [23] Finally, it was said that the respondent and its solicitor had closed their files, and the respondent had removed its reserve in respect of this claim.16 I do not regard these matters as having any significance. [24] Overall, I am not persuaded that the evidence in this case shows that the applicant is in the position for which, according to the Court of Appeal in Morrison-Gardiner and Winters, the ameliorative provisions in subsection 57(2) were intended to provide relief. Considerable reliance was placed for the applicant on the proposition that the applicant was not personally at fault, and that he had simply placed the matter in the hands of solicitors, and acted on the advice given to him from time to time by the solicitors. The applicant had been assiduous in keeping in touch with his solicitors, particularly in the latter part of 2003. It was submitted that any failure was the failure on the part of the solicitors, not the applicant, and it was reasonable for the applicant to leave the question of compliance with the Act to the solicitors.17 That I think is all correct, but it seems to me to follow from what was said in Winters, particularly at [35], that whether or not that was so is not the issue in an application of this nature. [25] The more important question, indeed the crucial question, is whether the delay which occurred was related to compliance with the Act, and that in turn depends on how it came about that the delay occurred. That there was no personal fault on the part of the applicant is of assistance in such an application, but it is not sufficient. If the solicitor’s delay was caused by attempts, possibly even misguided or inefficient attempts, to comply with the requirements of the Act, then an exercise of the power under s 57 may well be appropriate. But where the delay was simply due to administrative inefficiency on the part of the solicitor, or indeed a persistent failure to make any reasonable attempt to comply with the requirements of the Act, it seems to me to follow from the approach in Winters that the applicant has not shown good grounds for an order under s 57, even in the absence of prejudice to the respondent. [26] In those circumstances, on the facts of this case, the applicant has not shown that it is appropriate to make an order under s 57(2)(b). Accordingly, the application is dismissed with costs. 16 Affidavit of Moroney, paras 3-5. 17 Affidavit of applicant paras 2, 4, 9, 29. -- 8 of 8 --