Andrew Batistatos by his tutor Nita Lavinia Batis v Roads & Traffic Authority and Anor

Supreme Court of NSW|2004-09-03|Before: Hoeben J

CITATION : Andrew Batistatos by his tutor Nita Lavinia Batis v Roads & Traffic Authority and Anor [2004] NSWSC 796 HEARING DATE(S) : 25/08/04 JUDGMENT DATE : 3 September 2004

JUDGMENT OF : Hoeben J at 1 DECISION : Defendant's motion that proceedings be permanently stayed or dismissed refused.

CATCHWORDS : Abuse of process - excessive delay preventing fair trial - permanent stay. LEGISLATION CITED : Local Government Act, 1991 Supreme Court Rules Barron v Attorney General (1987) 10 NSWLR 215 Andrew Batistatos by his tutor Nita Lavinia Batis v Roads & Traffic Authority of NSW & Anor [2001] NSWSC 237 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 CASES CITED : Brodie v Singleton Shire Council (2001) 206 CLR 512 Carson v Legal Services Commissioner & Anor [2000] NSWCA 308 Holt v Winter (2000) 49 NSWLR 128 Jago v District Court (NSW) (1999) 168 CLR 23 Walton v Gardiner (1992-1993) 177 CLR 378 Andrew Batistatos by his tutor Nita Lavinia Batis - Plaintiff PARTIES : Roads and Traffic Authority of NSW - First Defendant Newcastle City Council - Second Defendant FILE NUMBER(S) : SC 21022/1994 GR Graham - Plaintiff COUNSEL : MW Robinson - First Defendant M Joseph SC - Second Defendant TD Kelly & Co - Plaintiff SOLICITORS : IV Knight Crown Solicitor - First Defendant Phillips Fox - Second Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

21022/94 - Andrew BATISTATOS by his tutor Nita Lavinia BATIS v ROADS & TRAFFIC AUTHORITY & ANOR

JUDGMENT 1 HIS HONOUR: Factual background The plaintiff was rendered a quadriplegic as a result of a motor vehicle accident which occurred on 21 August, 1965. The accident occurred in Fullerton Street, Stockton. On 21 March, 1994 the plaintiff commenced proceedings by his tutor against the Roads and Traffic Authority of NSW (RTA - first defendant) and the Newcastle City Council (the Council - second defendant). 2 The plaintiff alleged that at all material times the RTA and Council had the care control and management of Fullerton Street. He alleged that the bend in Fullerton Street, where the accident occurred, was constructed by and/or maintained and/or designed by one or other or both of the defendants. 3 The plaintiff claimed that he had at all material times been a person under a disability by reason of impairment of his mental and physical condition. 4 The substance of the plaintiff's claim against the defendants is negligence in that he was driving his motor vehicle along Fullerton Street, Stockton and "came upon an unmarked and un-posted bend in the road in the vicinity of Meredith Street" and ran off the road and into a depressed ditch and overturned. The following particulars of negligence were alleged:

(a) Constructing and/or maintaining a bend in the said road which was at a higher level of elevation to the surrounding terrain;

(b) failing to warn of the existence of the said bend at its northern approaches or at all;

(d) constructing and/or maintaining the said bend where the adjacent grass camouflaged its existence;

(e) failing to remove the said grass in the course of such construction and/or maintenance;

(g) failing to warn that the roadway was or had become unsafe to traverse at normal cruising speed;

(h) failing to post any or any sufficient warning of a necessity to traverse the roadway at less than normal cruising speed;

(i) failing to construct or design the roadway with adequate or proper camber, or to cause the said roadway to be so constructed or designed;

(j) constructing and/or maintaining the roadway in such a condition that it was unsafe to traverse at normal cruising speed and/or causing permitting or allowing the roadway to be so constructed and/or maintained; (k) failing to warn of the inadequate or defective camber of the roadway or to rectify same;

(l) causing, permitting or allowing the said roadway to come into or remain in public operation with the deficiencies hereinbefore particularised. 5 Particulars were requested and the following were provided:

(i) Plaintiff travelling along Fullerton Street at approximately 30 mph (45 mph speed limit) between 12 midnight and 1 am on way to catch Stockton ferry to return to the home of a couple in Newcastle where he was then living.

(ii) Had consumed a few beers during course of evening.

(iii) Driving a Ford van, similar to a PMG van which he had purchased second-hand from a caryard at Mayfield.

(iv) Stockton Police had attended the accident scene and the hospital.

(v) It was raining at the time of the accident and traffic conditions were light.

(vi) Fullerton Street was a bitumen road with a single carriageway in either direction.

(vii) The plaintiff was travelling in the south bound side of the road and did not realise that there was a bend in the road "due to the absence of proper marking, signage, lighting and reflectors until it was too late to take effective evasive action". 6 The following was also particularised: "The accident occurred just north of the junction of Fullerton Road and Meredith Street. An S-bend existed at that point which the evidence on behalf of the plaintiff will suggest was known in the Stockton area as a black spot. The road had since been straightened and the hazard which gave rise to the plaintiff's catastrophic accident has thus been eliminated. If you could furnish us with a map of the Fullerton Road Meredith Street area in the condition which it then existed we shall mark the accident site upon it for you. We enclose photocopy of photograph which shows part of the S-bend (now disused) looking southward." 7 The Council brought an application for summary judgment on the ground of non-compliance with s580 of the Local Government Act, 1919. The matter was heard by Master Harrison on 2 June 2000. Master Harrison delivered her judgment refusing the application on 9 June 2000. 8 The matter came before Bergin J and was heard by her on 28 and 29 March 2001 in relation to the following matters:

(i) The Council's appeal from the decision of Master Harrison. (ii) A motion by the Council for leave to amend its defence to plead the Limitations Act 1623 (Imp), the Limitations Act 1969 (NSW) and the highway immunity defence. (iii) A motion by both the Council and RTA for dismissal of the proceedings or a permanent stay. 9 Her Honour delivered judgment on 4 April, 2001 (Andrew Batistatos by his tutor Nita Lavinia Batis v Roads & Traffic Authority of NSW & Anor [2001] NSWSC 237). Her Honour dismissed the appeal against the decision of Master Harrison. She allowed the Council's application to amend its defence. The dismissal/stay motion was dealt with by her Honour in part. 10 The defendants sought summary dismissal or stay pursuant to Pt13 r5 of the Supreme Court Rules. Application was also made for the exercise of the Court's inherent powers to stay the proceedings permanently. There were three bases:

(ii) The defendants were highway authorities at the relevant time and there was no evidence that they had created any relevant danger causing the accident;

(iii) The defendants were irretrievably prejudiced by reason of the delay in the proceedings being brought. 11 One of the arguments raised in relation to abuse of process was the application of the relevant limitation act. Because the plaintiff had been in an asylum until 1956, had a low IQ and suffered from other disabilities specified in medical evidence before her Honour, she was satisfied that the plaintiff had a reasonably arguable case that in the period between the date of the accident and the issuing of the statement of claim, he was sufficiently disabled to suspend the operation of the limitation period (judgment at [53]). 12 Her Honour then embarked upon a consideration of the other two arguments but did not reach a final decision. In the course of those arguments, an application for adjournment was made on behalf of the plaintiff, which application was granted. That application was made on the second day of the hearing, 29 March 2001. 13 The matter came before the Court on 25 August 2004 for the hearing of the matters left outstanding in the application for summary dismissal or stay. Although it had been contended in correspondence that Bergin J was part-heard, that proposition was not argued before me and the parties were content for the matter to proceed before me in relation to those outstanding matters.

Absence of triable issue 14 The first submission by the defendants was that the claim by the plaintiff was so obviously untenable that it could not succeed. That proposition was made more difficult for the defendants because during the adjournment the High Court had delivered its decision in Brodie v Singleton Shire Council (2001) 206 CLR 512. That meant that the plaintiff could rely upon nonfeasance as well as misfeasance in making out his case. This effectively eliminated those arguments to the effect that the plaintiff's case must fail because he could not prove who had constructed the road or even when it was constructed. 15 Before me it was argued that because the plaintiff had not sworn an affidavit, or otherwise given direct evidence, I could draw an inference that he had no knowledge of how the accident occurred and if that were the case it would be impossible for the plaintiff to prove the case which had been set out in the statement of claim and otherwise particularised. 16 I do not accept that proposition. It frequently occurs that plaintiffs are so severely injured that they have no recollection of how an accident occurred. If the accident can be proved by other means, eg the observations of other people or reconstructive opinions by experts, such a plaintiff can still succeed. The failure of the plaintiff to provide any direct evidence does not, in my opinion, have the effect argued for. 17 It was also argued that because there were no police records relating to the accident, or any other "objective" contemporaneous material which would demonstrate how the accident occurred, it would be impossible for the plaintiff to prove how the accident took place or to even prove the fundamental facts upon which subsequent expert opinion could be based. 18 The principle in such situations was succinctly put by Hodgson JA in Carson v Legal Services Commissioner & Anor [2000] NSW CA 308 at [295]: "In my opinion, in an application to permanently stay a matter on the ground that it is foredoomed to fail, the onus lies on the application to make out that position on the basis of the evidence before the court hearing the application. In those circumstances, the respondent does not have to call the evidence upon which the respondent would rely at the hearing; but if the respondent wishes the court to have regard to the availability of certain evidence, the respondent may have an evidentiary onus to prove that such evidence is available and would be called, or at least should ensure that it is in a position to rely on evidence from which that inference can be drawn. Although the applicant for the relief bears the onus of proof, that onus may be discharged if all the respondent can do is to invite the court to speculate." 19 In this case the plaintiff has been able to satisfy that evidentiary onus. Affidavits were read from Messrs Lanham, Wynne and Alston. (Exhibits D, G and H respectively). Each of those persons was familiar with Fullerton Road, as it was in 1965, and would be able to give evidence as to its configuration, the location and height of grass, control measures provided by the Council, maintenance provided by the Council, and lighting provided in the vicinity of the accident site. 20 In the case of Mr Alston he actually saw the plaintiff's vehicle in position off the road not long after the accident. (Affidavit para 11). In the case of Mr Wynne, although the plaintiff's vehicle had been removed by the time he went to the accident site, he observed marks on the road and off the road at the accident site. (Affidavit para 12). 21 It is not necessary for me to go into that evidence further. I am satisfied that the plaintiff has discharged any evidentiary onus which he bears to indicate that there is evidence available which could, if accepted, establish his case. It is not a situation where the Court is required to speculate as to the possibility that such evidence may exist. 22 Along the same lines it was submitted on behalf of the defendants that the affidavits filed by them in support of the application established that no documents exist which show the levels/camber of the road in 1965, nor are there any documents which relate to maintenance, complaints, previous accidents etc. in relation to that period. The earliest documents which are available, except for those specifically identified in their affidavits, date from the mid 1980's. 23 The same answer can be made to that submission as was made to the one based on the absence of detailed evidence relating to the accident. Additionally there are some documents which relate to the period. Annexed to the affidavit of Mr Wynne, is an aerial photograph taken of the road within thirty six days of the accident occurring. That would certainly resolve any conflicts as to the direction of the road and as to the angle of bends etc. 24 Survey plans of the road dating from 1984/85 have been produced. Plan No R4442 would seem to show that part of Fullerton Street where the accident occurred together with various spot heights relating to the road and its surrounds. The origin of those plans is the City Engineers Department of the Council. 25 Some internal documents have been produced by the Council which date from 1981. They include a complaint by a resident of Fullerton Street, which was responded to by Mr Garner, an officer of the Council, who took photographs of parts of the road and prepared a report in answer to the complaint. Subject to the plaintiff being able to establish that no significant changes occurred in relation to the road between 1965 and 1981, those photographs and the report would provide useful evidence in support of his case. The persons previously referred to, Messrs Lanham, Wynne and Alston, may be able to provide evidence which covers the gap between 1965 and 1981. 26 For the above reasons I am not satisfied that the plaintiff's claim is so obviously untenable that it cannot possibly succeed or so manifestly faulty that it does not admit of argument. I reject the defendants' submissions on that issue.

Prejudice 27 The defendants submit that the effluxion of time in this matter is such that a fair trial from the defendants' point of view is not possible. Accordingly, they seek a permanent stay of the proceedings as being an abuse of process (Pt 13 r5) or under the inherent jurisdiction of the Court to stay proceedings on grounds of abuse of process. (Walton v Gardiner (1992-1993) 177 CLR 378 at 392-93). 28 In order to make out this argument it was necessary for the defendants to establish not that there was no possibility of a fair hearing but rather that the continuation of the proceedings would be so unjustifiably vexatious and oppressive that to allow them to continue would amount to an abuse of the Court's process. (Walton p395). The defendants bore the onus of establishing that proposition. 29 Mr Joseph SC in his helpful written submission made the following additional points:

(i) In substance there was no relevant distinction between the applicability of the grant of a permanent stay in criminal proceedings and those in civil proceedings. ( Walton p394-5)

(ii) The power to grant such a stay is discretionary and will only be used in the most exceptional circumstances. ( Jago v District Court (NSW) (1999) 168 CLR 23 at 31,46-47,56, 71 and 74-5).

(iii) In the case of unfair proceedings or trial the onus lies on the applicant for a stay to demonstrate that the disadvantage or prejudice which would be suffered by refusal of the stay in the relevant sense is unacceptable to the extent that the proceedings would be unfair. ( Barron v Attorney General (1987) 10 NSWLR 215 at 219, 223)

(iv) To justify a permanent stay there must be a fundamental defect which goes to the root of the trial, of such a nature that nothing the trial judge can do in the conduct of the trial can relieve against its unfair consequences. ( Jago at p34,75) (v) The question whether the proceedings should be permanently stayed is to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. (Walton p396). 30 In support of their argument the defendants rely upon the effluxion of time per se as being relevant and refer specifically to what was said by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551: "Sometimes the deterioration in quality is palpable as in the case where the crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anyone else realising that it exists. As the United States Supreme Court pointed in Barker v Wingo (1992) 407 US 514 at 532: "What has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose." 31 I was also referred to the use of that passage in a similar context by Sheller JA in Carson v Legal Services Commission & Anor [2000] NSWCA 308 at [261-265]. 32 It should be noted that the comment of McHugh J was made in the context of a limitation case where the plaintiff carried the burden and its adoption by Sheller JA was in the context of disciplinary proceedings brought against a solicitor where there had not only been significant delay in the investigation of those proceedings but a denial of natural justice in the way in which the proceedings were processed. Nevertheless the question of the degradation of evidence by the passage of time is a relevant consideration to be taken into account in the weighing process. 33 The effect of the evidence adduced by the defendants was that for the period before 1965 up to the early-mid 1980's most documents had been lost or destroyed and there were not documents available which would enable the defendants to properly defend the claim which was being brought against them. That most of the documents for the period 1965-early 1980's were no longer available was clearly established. 34 The defendants submitted that this absence of documents meant that the proceedings were unfair and unjustifiably oppressive to them. The great delay and the inability to properly investigate and contest the allegations made by the plaintiff were powerful factors to be taken into account in deciding the application. 35 The defendants pointed out that there were no hospital records available, nor medical records before 1980. There do not appear to be any police records in relation to the accident. 36 These arguments were put by the defendants to Bergin J when the matter was before her. She noted that although there had been comprehensive searches made by the defendants to locate documents there had been no such searches to identify and locate persons who may have had personal knowledge, either of the road or of the accident. Her Honour noted that the survey plans refer to a surveyor, Mr G Hearns, and to a Mr J Rennies, and there was a reference to a maintenance engineer, Mr Bradley, who had taken a series of photographs which demonstrated parts of the original road. Fullerton Street passed through the Stockton Soccer Club field but no enquiry had been made of the soccer club in respect of any information it may have relating to the original road in 1965. 37 Her Honour also noted that until the new Stockton Bridge had been opened to traffic on 1 November 1971 access across the Hunter River at that location was provided by a ferry service. It was "highly likely" that Fullerton Street remained as a main road until that point in time. It was therefore a road with which people living in the area would have been familiar. 38 When this part of the motion was argued before me and additional evidence was tendered on behalf of the defendants, that evidence again focused upon documents, the search for documents and their absence, but was almost entirely silent concerning the identity of any personnel who had worked for the defendants from 1965, who might have had personal knowledge concerning the road or the accident. It is not so much that such persons are no longer available, there is no evidence that any attempt has been made to identify and locate such persons by either of the defendants. Despite her Honour's reference to Mr Hearns and Mr Bradley there is no evidence before me that any attempt had been made to locate and interview those persons. 39 On behalf of the plaintiff, it was submitted that the persons who were identified in the documents who had previously worked for one or other of the defendants, and who would be expected to have some significant knowledge of the road, such as a Mr Moore, regional engineer, Mr Thew and Mr Garner (the person who prepared the report in 1981 and took photos on behalf of the Council) had not apparently been interviewed. If they had been interviewed, the results of those interviews had not been communicated by the defendants to either the plaintiff or to the court. It was submitted on behalf of the plaintiff that this was typical of the defendants' approach to the matter ie to focus upon documents but to make little or no attempt to locate people who may have had knowledge of the road and/or of the accident. In my opinion this criticism is valid. 40 I am also mindful of the fact that during the adjournment the plaintiff was able to locate the three persons previously referred to Messrs Lanham (who had been an alderman on the Council for many years) Wynne and Alston, all of whom have it seems, detailed recollections of the road and of events which had happened in relation to the road at the relevant time. There was no suggestion that these witnesses were partisan or that their evidence would necessarily favour the plaintiff. These witnesses now having been identified could be interviewed by the defendants and through them it may well be possible to locate other persons with knowledge of the road and of the accident. 41 Much has been said about the inability of the defendants to have a fair trial if the plaintiff's proceedings are allowed to continue. This argument has taken place in the context of cases relating to the extension of a limitation period. Some care needs to be taken when using those cases in relation to this application. At all times it needs to be remembered that the defendants in this case carry the onus. It is not for the plaintiff to establish that a fair trial can be had but for the defendants to establish that their chances of having a fair trial are so low that to allow the proceedings to continue would be unjustifiably vexatious and oppressive to them. 42 Although Priestley JA was in the minority in Holt v Winter (2000) 49 NSWLR 128 at 142 his statement as to what constitutes a "fair trial" would seem to be uncontroversial: "Brisbane South itself demonstrates that different judges have somewhat different ideas on the matter. One thing seems to be clear; that is that the term is a relative one and must, in any particular case, mean a fair trial between the parties in the case in the circumstances of that particular case. Further, for a trial to be fair it need not be perfect or ideal. That degree of fairness is unobtainable. Trials are constantly held in which for a variety of reasons not all relevant evidence is before the court. Time and chance will have the effect on evidence in any case, but it is not usually suggested that that effect necessarily prevents a fair trial."

One of the relevant circumstances here is that we are considering the concept of a "fair trial", not in an extension of time application but in an application to permanently stay proceedings. 43 The defendants carry the onus. They have failed to satisfy me that the circumstances of this case are so exceptional that to allow the matter to proceed would be unjustifiably vexatious and oppressive to them. Put another way, they have failed to satisfy me that they cannot have a fair trial in the circumstances of this case. 44 As was raised in argument, the effluxion of a long period of time does not of itself render proceedings unjustifiably oppressive or vexatious. The Melbourne/Voyager cases are an illustration of this. In raising that example I appreciate that the Commonwealth does have in its possession a large quantity of documents by way of personnel records relating to claimants when they were serving with the Navy. On the other hand there is usually a significant paucity of evidence between the time when such persons left the Navy and when the matters come to trial. This has not prevented fair trials taking place. 45 In this case three witnesses have been identified by the plaintiff who have personal knowledge of the road and two of whom have personal knowledge by way of observation of the accident site. I am not satisfied that the defendants have thus far taken steps reasonably open to them to identify and locate other persons, particularly from their own organisations, who may have similar information. 46 Some documents have been located particularly the surveys of the road dating from the early 1980's. Of particular importance is the aerial photograph taken thirty six days after the accident which shows the road and surrounding features and houses with considerable clarity. There is no evidence before me that there was any significant change to the road between 1965 and the early 1980's when the survey plans were prepared and when the photograph attached to Mr Garner's report were taken. 47 As was pointed out in Jago v District Court (1999) 168 CLR 23 and in Williams v Spautz (1992) 174 CLR 509 the power to grant a stay is discretionary and should only be used in the most exceptional circumstances. I have not been satisfied by the defendants that the circumstances of the present case are such as to justify a permanent stay of proceedings which would have the effect of permanently preventing the plaintiff exercising his right to bring proceedings in respect of his injuries. 48 I also take into account when carrying out the weighing process required of me, that the plaintiff has suffered very serious injuries and that if he succeeds he is to be compensated for the effects of those injuries since 1965. His claim if successful is a large one. That also is a matter which I consider to be relevant to my exercise of discretion.

Conclusion 49 I refuse the motion of the defendants that these proceedings be permanently stayed or dismissed. 50 I have not heard any argument as to costs. I am mindful of the fact that the plaintiff did seek an adjournment on 29 March 2001 and the defendants may wish to make submissions as to costs in relation to that matter. Accordingly, I grant leave to the parties to approach the Court on seven days' notice if they wish to argue the question of costs. If no such application is made, I order that the defendants pay the plaintiff's costs of the motions, both those before Bergin J and that argued before me on 25 August, 2004.

Last Modified: 09/06/2004 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.

(Imp), the Limitations Act 1969(NSW)

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