Bajramovic v Calubaquib

Court of Appeal (NSW)|2015-04-23|Before: Emmett JA, Leeming JA, Adamson J, Sperling J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

EMMETT JA: These proceedings are concerned with the circumstances in which an unsuccessful application for the grant of leave under s 109(1) of the Motor Accidents Compensation Act 1999 (NSW) (the Motor Accidents Act) will preclude the making of a second application on the ground that the second application is an abuse of process. Section 109 relevantly provides that a person who makes, or who is entitled to make, a claim for damages in respect of injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle (a claim) [1] is not entitled to commence proceedings in respect of such a claim more than three years after the date of the motor accident to which the claim relates, except with the leave of the court in which the proceedings are to be taken.
Under s 109(3) of the Motor Accidents Act, the leave of the court to commence proceedings in respect of a claim must not be granted, relevantly, unless the claimant provides a full and satisfactory explanation to the court for the delay. Under s 66(2), a reference to a full and satisfactory explanation by a claimant 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. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.

Background

Mr Almin Bajramovic (the Applicant) was injured on 20 November 2007 while the driver of a motor vehicle stopped in heavy traffic. The injury occurred when the motor vehicle behind him was struck by a third vehicle, driven by Mr Briccio Calubaquib (the Respondent), forcing the motor vehicle immediately behind the Applicant's vehicle into collision with his vehicle. The Respondent was subsequently charged with negligent driving in respect of the collision.
On 20 December 2007, a personal injury claim form in respect of the accident was received by Allianz Australia Insurance Ltd (Allianz), the compulsory third party insurer of the Respondent under the Motor Accidents Act. By letter of 29 April 2008, Allianz informed the Applicant that the Respondent was at fault and accepted that there had been a breach of duty of care. Between 29 April 2008 and 4 April 2012, particulars of the Applicant's claim were provided to Allianz and its solicitors and the Applicant underwent medical examination arranged at the request of Allianz and its solicitors.
On 4 July 2011, an application for assessment of damages was lodged on behalf of the Applicant with the Claims Assessment and Resolution Service (CARS). (An initial form had been lodged with CARS on 1 June 2011.) By that time, of course, the three-year time limit in s 109(1) of the Motor Accidents Act had already long elapsed. On 4 April 2012, the Applicant's claim for assessment of his damages was heard by a claims assessor appointed under the Motor Accidents Act and the assessor determined the claim.
On 16 April 2012, a certificate under s 94(1)(b) of the Motor Accidents Act was issued by the assessor. Under that provision, the claims assessor is required to make an assessment, where the insurer has accepted liability, of the amount of damages for the liability, being the amount of damages that a court would be likely to award. Under s 94(3) and (4), the assessment is to specify an amount of damages and the claims assessor must, as soon as practicable after an assessment, issue the insurer and the claimant with a certificate as to the assessment. Under s 95(2) of the Motor Accidents Act, an assessment of the amount of damages for liability under a claim is binding on the insurer and the insurer must pay to the claimant the amount of damages specified in the certificate, but only if the claimant accepts the amount of damages in settlement of the claim within 21 days after the certificate of assessment is issued.
As at 16 April 2012, the Applicant was represented by Ms Dobrinka Zlatevska, a solicitor practising at Rockdale. Ms Zlatevska was instructed by the Applicant not to accept the assessment made by the assessor. Since the Applicant did not accept the amount of damages, the assessment was not binding on Allianz.
Ms Zlatevska says that, shortly after 16 April 2012, she was instructed by the Applicant that he wished "to seek a re-hearing of the matter in the District Court". The precise advice given in that regard by Ms Zlatevska, and the instructions she received from the Applicant, are not entirely clear at this stage. In any event, Ms Zlatevska delivered instructions to Mr Mark Thompson of counsel, who drafted a statement of claim on behalf of the Applicant. By notice of motion filed on 30 April 2012, the Applicant sought leave under s 109(1) of the Motor Accidents Act to commence proceedings against the Respondent.

The First Application and the Reasons of Truss DCJ

The application for leave under s 109 came before Truss DCJ. On 9 July 2012, for reasons then given, her Honour dismissed the Applicant's notice of motion and ordered him to pay the Respondent's costs of the motion. In the course of those reasons, her Honour observed that s 109(3) (given further definition by s 66(2)) requires a full account of the conduct of a claimant and of persons acting on his or her behalf, insofar as such conduct was relevant to the delay. Her Honour also said that it was clear that "full" meant "complete" and that the claimant's state of mind concerning what needed to happen and what was happening with his claim was also relevant. In that regard, her Honour considered that it was necessary to consider the evidence in relation to the Applicant's explanation for delay in two stages.
The first stage identified by Truss DCJ was from the date of the accident until 30 April 2009, when the Applicant first instructed the firm of solicitors of which Ms Zlatevska is the principal. (Ms Zlatevska took personal carriage of the Applicant's matter on 31 December 2010.) The second stage was from 30 April 2009 until 4 July 2011, when an application to CARS was lodged on behalf of the Applicant. Her Honour observed that there was no evidence as to the Applicant's knowledge, if any, of his entitlement to pursue a claim for damages, or as to the circumstances that led to his consulting a solicitor. Her Honour also observed that there was no evidence touching on matters such as the Applicant's state of mind during the period from 30 April 2009 to 4 July 2011 or as to his understanding of his entitlements and what relevant instruction he gave to his solicitors.
Truss DCJ concluded that there was no evidence as to the Applicant's knowledge or belief at the critical time, being the time when the three-year time limit expired, or at any other time. For that reason, her Honour concluded that it was impossible to evaluate whether a reasonable person in the position of the Applicant would have been justified in experiencing the relevant delay. Her Honour concluded that the circumstances of the case were such that an explanation could not be provided without evidence from the Applicant and that the Applicant had failed to discharge the onus that he bore under s 109.
While a notice of intention to appeal from the order made by Truss DCJ was filed on behalf of the Applicant, an appeal was not pursued. There has been no complaint about the correctness of her Honour's reasons and conclusion, on the basis of the evidence before her.
Later in July 2012, Ms Zlatevska consulted the Applicant's present solicitor, Mr Stephen Sharpe. Ms Zlatevska told Mr Sharpe that she had a problem with a case that had become out of time, that she had tried to have the time extended, and that the extension was unsuccessful. Having examined Ms Zlatevska's file, Mr Sharpe informed Ms Zlatevska in early August that she had a conflict of interest and suggested that he invite the Applicant to give him instructions to make a further application for an extension of time.
Mr Sharpe thereafter received instructions from the Applicant and, on 3 August 2012, he briefed junior counsel on behalf of the Applicant. He received advice from counsel that the application for extension that had been heard by Truss DCJ had been insufficiently prepared because of the absence of evidence from the Applicant. Counsel advised that it was possible to make a further application for an extension of time. After giving consideration to the pursuit of an appeal from the decision of Truss DCJ, counsel advised that affidavits from the Applicant, Ms Zlatevska and Mr Thompson should be filed in support of such a further application. Accordingly, affidavits were prepared during the period from August 2012 to December 2012 and were sworn prior to the end of 2012.

The Second Application and the Reasons of Balla DCJ

On 18 January 2013, a summons was filed in the District Court on behalf of the Applicant. By the summons, the applicant sought leave pursuant to s 109 of the Motor Accidents Act to commence proceedings in respect of the motor vehicle accident on 20 November 2007. Mr Sharpe explained that the delay from the time of the swearing of the affidavits until 18 January 2013 was because he and counsel were on leave.
The summons seeking leave first came before Balla DCJ on 5 April 2013, on which date the Applicant's counsel sought an adjournment so that further evidence could be obtained from the Applicant as to whether he had been aware of the three-year time limit. The matter was relisted for further hearing on 13 December 2013, when the deponents of the affidavits filed on behalf of the Applicant were cross-examined on behalf of the Respondent. On 20 December 2013, Balla DCJ made orders to the effect that the summons of 18 January 2013 be dismissed. In her reasons of 20 December 2013, her Honour observed that the Respondent had sought dismissal of the summons because it constituted an abuse of process and because the Applicant had not provided a full and satisfactory explanation to the Court for the delay in commencing proceedings, which should have been commenced by 20 November 2010.
In her reasons, Balla DCJ said that she had had regard to the following matters:

the relief sought in the summons was identical to the orders sought in the notice of motion of 30 April 2012;
there had been significant delay in circumstances where the time limit for the bringing of proceedings expired on 20 November 2010, which was more than three years ago;
further, the notice of motion of 30 April 2012, which was originally listed for hearing on 11 May 2012, was adjourned on the Applicant's application so that he could obtain additional evidence and thus was delayed by almost a month;
the first application for an extension was the subject of a fully contested hearing after which Truss DCJ held that, despite the evidence from Ms Zlatevska, which went some way towards establishing an explanation, the explanation could not be provided without evidence from the Applicant;
the finalisation of the present summons was further delayed in that, when it was first listed for hearing, the Applicant sought an adjournment so that he could call more evidence; and
all of the Applicant's evidence relating to the full and satisfactory explanation of the delay at the hearing before Balla DCJ was available to be called at the time when the application by notice of motion of 30 April 2012 had been heard by Truss DCJ.

Balla DCJ was satisfied, for the above reasons, that the proceedings commenced by the summons of 18 January 2013 were an abuse of process and should be dismissed summarily. In view of that conclusion, her Honour did not consider it necessary to decide whether the Applicant had provided a full and satisfactory explanation for his failure to commence proceedings within three years after the date of the accident.

The Appeal to this Court

On 23 December 2013, a notice of intention to appeal from the orders made by Balla DCJ was filed on behalf of the Applicant and, on 19 March 2014, a notice of appeal was filed on his behalf. The grounds of appeal were that her Honour erred in finding that the proceedings were an abuse of process and should have found that the Applicant had provided a full and satisfactory explanation for the delay in commencing proceedings.
On 16 April 2014, the Respondent filed a notice of motion seeking an order that the appeal be dismissed as incompetent. That prompted a notice of motion by the Applicant on 19 May 2014 seeking an extension of time for filing a summons seeking leave to appeal and the granting of leave. On 8 August 2014, the Applicant filed a summons for extension of time in which to seek leave to appeal and for the grant of leave. A direction has been made that the application for leave and any appeal, if leave be granted, be heard concurrently.
Having regard to the fact that the notice of intention to appeal was filed within days of the orders made by Balla DCJ and the notice of appeal was filed within the time limit, the Respondent does not oppose the extension of time within which to file the summons seeking leave to appeal. However, he opposes the granting of leave. Thus, the questions that are raised for determination are as follows:

whether leave to appeal should be granted; and
if leave is granted, whether the appeal should be allowed on the basis that Balla DCJ erred in dismissing the proceedings before her as an abuse of process.

While the submissions originally made on behalf of both the Applicant and the Respondent addressed the substantive question of whether the Applicant had provided a full and satisfactory explanation for the delay, both parties conceded that, if the appeal were to be allowed, on the ground that Balla DCJ erred in concluding that the proceedings were an abuse of process, it would be inappropriate for this Court to embark on a hearing of the substantive question. Accordingly, the appropriate relief would be for the matter to be remitted to the District Court for determination, according to law, of the question of whether the Applicant had provided a full and satisfactory explanation for his delay in commencing proceedings for recovery of damages in respect of the injuries suffered in the accident.
The Respondent accepts the contention advanced on behalf of the Applicant that there is considerable overlap between the arguments in relation to the application for leave to appeal and the substance of the appeal. In the circumstances, it is convenient to deal with the substantive issue that would be raised by the appeal before addressing the question of leave to appeal.
The essence of the stance adopted by the Respondent is that it would be an abuse of process for the Applicant to agitate a second application for leave to commence proceedings in respect of the accident, in circumstances where he was represented on the hearing of the first application by solicitors and counsel. That application was unsuccessful by reason of the lack of evidence as to his state of mind from the time of the accident until the expiration of the three-year period, his thought processes that led him to consulting a solicitor and the instructions that he gave to his solicitors. The Respondent contends that, while it would have been open to his legal representatives to adduce that evidence, they erroneously concluded that it was not necessary to do so. Counsel for the Respondent accepted in the course of the hearing before this Court that the decision by those legal representatives not to adduce such evidence was clearly wrong.
Before considering the relevant legal principles, it is desirable to say something about the evidence before Balla DCJ. That evidence consisted of the affidavit evidence before Truss DCJ, as well as additional affidavits filed after the dismissal of the first application.

Evidence before Truss DCJ and Balla DCJ

The evidence before Truss DCJ consisted of affidavits sworn by Ms Zlatevska in April and May 2012 and affidavits sworn by Ms Frances Allen (who is the solicitor for the Respondent) in May and June 2012. The evidence of Ms Allen annexed medical reports and correspondence. Ms Zlatevska's affidavits briefly recounted the fact of the applicant's injury and the steps that had been taken to mount a claim under the Motor Accidents Act.
In an additional affidavit sworn by Ms Zlatevska in November 2012, Ms Zlatevska said that, from April 2009 until 31 December 2010, her former partner, Mr Robert Stanoevski, had the conduct of the Applicant's claim and that she took over the conduct of that matter on 31 December 2010. Ms Zlatevska said that Mr Stanoevski had briefed Mr Thompson in July 2009 and that Mr Thompson saw Mr Stanoevski and the Applicant in conference on 4 August 2009. Mr Thompson advised that further medical evidence was necessary. Following the obtaining of that evidence, an informal settlement conference took place on 25 October 2010, but no settlement occurred. That was very close to the expiry of the three-year period.
A request on behalf of Allianz for particulars of the Applicant's claim made on 15 December 2010 was not answered until 1 June 2011. Ms Zlatevska said that instructions from the Applicant were not forthcoming until 2011. An application to CARS, which was prepared with the assistance of Mr Thompson, was then lodged on 4 July 2011. As I have indicated above, a certificate under s 94 was issued by the assessor on 16 April 2012.
Ms Zlatevska said in her affidavit of November 2012 that she did not ever advise the Applicant of the three-year limitation period or that his claim was out of time. She said that, after the three-year period had expired, she had hoped that the matter would be determined "at the CARS level" such that the limitation period would not "become an issue". She also said that Mr Thompson did not advise her that an affidavit by the Applicant was necessary to support the application for an extension of time and that she relied completely on Mr Thompson's advice in that regard.
Mr Thompson swore an affidavit in December 2012 confirming that he was briefed to appear for the Applicant in connection with the claim against the Respondent in respect of the injuries he suffered on 20 November 2007. Mr Thompson said that, in the application to Truss DCJ, the explanation for the Applicant's delay in commencing proceedings related to his inability to apply for CARS assessment until his medical condition was stable and the settlement negotiations with Allianz had been concluded, as deposed to by Ms Zlatevska in her affidavits of April and May 2012. Mr Thompson said that, as the delay was not perceived to have been due to neglect of the progress of the matter by either the Applicant or his legal representatives, he formed the opinion, at the time, that affidavit evidence from the Applicant would not have explained the delay and was accordingly irrelevant and unnecessary.
In her affidavit of April 2012, Ms Zlatevska said that a statement of claim was not filed within the three-year period because liability was not in dispute and the Applicant was not entitled to do so before CARS assessment of his damages. She referred to s 108 of the Motor Accidents Act, which relevantly provides that a claimant is not entitled to commence court proceedings against another person in respect of a claim unless a certificate has been issued to the effect that the claim is exempt from assessment or a claims assessor has issued a certificate under s 94. Ms Zlatevska relied on the fact that no such certificate had been issued. However, under s 109(2), time does not run for the purposes of s 109(1) from the time that a claim has been referred to CARS for assessment until a time two months after a certificate has been issued. Of course, as appears above, the application for an assessment was not made until 4 July 2011. By that time, the three-year period had expired.
In her affidavit of May 2012, Ms Zlatevska asserted that the Applicant's claim was not in a position to be referred to CARS for assessment until such time as he was able to make an informed choice as to whether to apply for an assessment of the level of his impairment. She said that that decision could not be taken until such time as the Applicant's condition had fully stabilised. She also asserted that the Applicant was not entitled to have his claim referred to CARS for assessment until attempts to resolve the matter by way of settlement negotiations with Allianz had been concluded. That may have been a reference to s 89A(2) of the Motor Accidents Act, which relevantly provides that a claim cannot be referred to CARS for assessment until the parties have participated in a settlement conference. She said that, from August 2010 to November 2010, she had liaised with Allianz as to settlement, including a mutually convenient time for a mediation conference and exchange of settlement offers. She referred to further settlement discussions in February and March 2011 and to conferences with counsel and with the Applicant and witnesses from April to June 2011 in preparation for a CARS hearing.
The third proposition on which Balla DCJ based her Honour's conclusion that the second application constituted an abuse of process (see above at [17]), namely, that the original notice of motion of 30 April 2012 was filed 17 months after the three-year time limit had expired and was further delayed by the Applicant's application to adjourn to obtain further evidence, begs the question because the very object of that application was to explain the delay in commencing the proceedings. That cannot be a reason why the second application constituted an abuse of process. For example, it was not suggested that the application was so hopeless that it should never have been brought.
The principal question before Balla DCJ was whether evidence from the Applicant as to his state of mind, including his understanding of his entitlements, his decision to instruct solicitors, and his understanding of the instructions he gave to his solicitors, "was available", in the sense in which that phrase has been used in a number of judicial decisions. [2] The Applicant had contended before Balla DCJ that the additional evidence that was adduced on the hearing of the second application was not available on the hearing of the first application because he had not been informed that an application was to be made for an extension of time and therefore did not have the opportunity of giving evidence. That contention must be rejected, since the Applicant acted through his legal advisers. The fact that he personally was unaware of the first application does not mean that his evidence was not available in the relevant sense.
The Applicant swore two affidavits in connection with the second application. In his affidavit of November 2012, he said that he had not been informed by his former solicitor that it was necessary to make an application for an extension of time and that he did not know that he needed to do so. He said that he did not know that such an application had been made and that it had been unsuccessful. He said that he was simply told by his solicitor that "we have lodged an appeal" after the issue of the assessment certificate on 16 April 2012, and he was "totally unaware" of the application that was made until informed about it by Mr Sharpe and that that is the reason why he did not file an affidavit in the original application.
In his affidavit of May 2013, the Applicant said that he left the running of his case entirely to Mr Stanoevski after he first saw him at the end of April 2009. He said that at no stage did Mr Stanoevski advise him that a court case had to be commenced within three years of the accident and that he had "absolutely no idea" that an extension of time application had been filed by Ms Zlatevska. He said that, had Ms Zlatevska requested him to swear an affidavit in connection with the original application, he would "most certainly" have done so. That evidence does not support a conclusion that evidence from the Applicant was not available for the hearing of the first application.
However, for the reasons given below, that is not decisive. In the circumstances of a particular case, there may well be grounds for concluding that it would not be an abuse of process for a second application to be made, on the basis of additional evidence, notwithstanding that it was open for the applicant to adduce that evidence in the original application.

Legal Principles

It is axiomatic that a party is normally bound by the way in which his or her counsel conducts a trial on behalf of the party. That is necessary for the efficient administration of justice, and an adversary system of trial could not work effectively with a different rule. In a criminal trial, inadvertence on the part of an advocate, or clear incompetence, can, in some circumstances, require the intervention of the court in order to avoid the risk of a miscarriage of justice. However, even in the conduct of a criminal trial, where liberty and reputation are at stake, such jurisdiction must be exercised cautiously, and the mere fact of a mistake or unwise decision made by an advocate will not, without considerably more, justify the setting aside of a conviction to avoid a miscarriage of justice. A fortiori, the jurisdiction must be exercised very sparingly in civil proceedings. [3]
However, such principles are not as stringent in the case of an interlocutory hearing. The principles of res judicata and issue estoppel are desirable for the administration of justice to ensure finality and to avoid inconsistency of judgments. [4] Those considerations, however, do not apply with the same force in relation to interlocutory orders and decisions, where there has been no determination on the full merits.
Interlocutory orders create no res judicata or issue estoppel and the Court has jurisdiction to set aside, vary or discharge an interlocutory order. Similarly, where an application for interlocutory relief is refused, the Court has jurisdiction to entertain a second application for the same relief. However, clearly enough, it would be conducive to injustice and would be an enormous waste of judicial time and resources if there were no limits imposed on the entitlement of a party to re-litigate at will an application for interlocutory relief. [5] That is to say, it may well be an abuse of process for a party who has been unsuccessful in obtaining interlocutory relief or in resisting interlocutory relief to re-litigate the very same question. However, there will be circumstances in which it will not be an abuse of process.
It would not ordinarily be an abuse of process to endeavour to do so where there has been a change of circumstances or where evidence has become available that was not available at the time of the original hearing. However, that is not an exhaustive statement of the circumstances in which a second application after an initial unsuccessful application may be made or in which an application may be made to set aside, vary or discharge an order already made. The overriding principle is that the Court must do whatever the interests of justice require in the particular circumstances of the case. While the ordinary rule of practice is that an application to set aside, vary or discharge an order or a second application after a first application has been refused must be founded on a material change of circumstances, or the discovery of new material that could not reasonably have been put before the Court on the hearing of the original application, [6] that is no more than an ordinary rule of practice. The interests of justice must prevail in the particular circumstances of any case. In particular, Balla DCJ accepted, and it has not been disputed in this Court, that there is no general principle that a second interlocutory application that raises additional evidence that was available at the time of the first application cannot be entertained. [7]
A subsidiary question was whether the provisions of the Civil Procedure Act 2005 (NSW) (the Civil Procedure Act), particularly ss 56-60, should be taken into account in determining whether a second application for an extension of time to commence proceedings should be permitted where the application is based on evidence that could have been adduced at the time of an unsuccessful first application but, for whatever reason, was not adduced. [8]
The overriding purpose of the Civil Procedure Act and the 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. The Court must seek to give effect to that overriding purpose when it exercises any power given to it by the Act or rules of Court. Further, a party to civil proceedings is under a duty to assist the Court to further that overriding purpose. [9] For the purpose of furthering that overriding purpose, proceedings are to be managed having regard to the following objects:

the just determination of the proceedings;
the official disposal of the business of the Court;
the efficient use of available judicial and administrative resources; and
the timely disposal of the proceedings, and all other proceedings in the Court. [10]

In deciding whether to make any order or direction for the management of proceedings, the Court must seek to act in accordance with the dictates of justice. For the purpose of determining what are the dictates of justice in a particular case, the Court must have regard to the overriding purpose described above and may have regard to a number of other matters, including:

the degree of expedition with which the respective parties have approached the proceedings;
the degree to which the respective parties have fulfilled their duties to assist the Court to further the overriding purpose described above; and
the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction. [11]

Consideration

It would be too simplistic a view to limit the circumstances in which a second application might be made after an unsuccessful application to the situation where there has been a change of circumstances or evidence has become available that was not available at the time of the original hearing. The overriding requirement is that the outcome of any second application for interlocutory relief is a just one.
It is relevant that Allianz had admitted liability on behalf of the Respondent. There was no suggestion of any prejudice to Allianz or to the Respondent by reason of the Applicant's delay in making the second application for leave to commence proceedings for the recovery of damages resulting from the injuries he suffered in the accident. The evidence before her Honour indicated that the Applicant had been medically examined by medical practitioners on behalf of Allianz and the Respondent at an early stage.
While it would be fair to conclude that the costs of the first application have been thrown away, any injustice resulting could easily be accommodated by imposing terms on the extension of time, if an extension were to be granted. For example, a term could be imposed that the Applicant pay the Respondent's costs of the unsuccessful first application on an indemnity basis and that there be a stay of any proceedings until such time as those costs have been paid. Thus, there would be no injustice to the Respondent or Allianz if an extension were granted, on the assumption that the Court was satisfied that the Applicant had provided a full and satisfactory explanation for the delay.
On the other hand, if an extension of time were not granted, in circumstances where the only reason for the refusal is the failure to adduce evidence from the Applicant as to the matters referred to above, a decision made by his legal advisors without any fault on his part, there must be a real likelihood of further and more complex litigation between the Applicant, on the one hand, and his legal advisers, on the other. That is to say, in circumstances where the Respondent accepts that the decision not to adduce evidence from the Applicant on the hearing of the first application was clearly wrong, there must be a real prospect that an action for damages would be brought by the Applicant against his former legal advisers. While that would not involve Allianz in any cost, such proceedings would involve considerable cost and effort on the part of the Applicant, as well as involving considerable court time to resolve not only the question of the damages to which the Applicant would have been entitled had there been an extension of time or proceedings had been commenced within the three-year period, but also the costs of determining whether or not the legal advisers should be held responsible for such damages.
Balla DCJ does not appear to have given any consideration to the question of whether the grant or dismissal of the application before her Honour would give rise to a just outcome. Insofar as Balla DCJ failed to take account of the likely injustice that would flow for the Applicant if he would have been able to provide a full and satisfactory explanation for delay, but is deprived of the opportunity of doing so, her Honour erred in declining to decide whether he had done so.
I consider that Balla DCJ erred in concluding that the bringing of the second application by the applicant was an abuse of process without considering the injustice that may flow to the Applicant by reason of the refusal to hear the merits of his application for an extension. In those circumstances, it is appropriate that leave to appeal be granted and that the appeal be allowed. There would otherwise be an injustice wrought by the refusal of leave to appeal.
Particularly where issues of credit arise, it is important for a trial judge to make findings on all the matters of fact that have been raised, even if the trial judge considers them not to be decisive of the proceedings. [12] That will enable an appellate court to determine an appeal without the need for remitter. Balla DCJ heard full argument on the merits of the application for an extension of time. Questions of credit necessarily arose in relation to that question. In the circumstances, it would have been desirable for her Honour to have considered the merits of the Applicant's second application and to have made any necessary findings of fact, notwithstanding that her Honour decided to dismiss the application summarily as an abuse of process.
Since Balla DCJ did not make the necessary findings in the present case, the matter must be remitted to the District Court. That is so notwithstanding that the parties will be put to the expense of a third hearing on the question of the granting of leave to commence proceedings out of time. Ordinarily, it would have been preferable for the matter to be remitted to her Honour for determination of that question, upon which she has heard full argument. However, because of the questions of credit, and because it is now more than 18 months since her Honour disposed of the matter, that is not necessarily the preferable course. It would be a matter for the District Court, however, after giving the parties an opportunity to be heard on the question, as to whether the matter should be heard by Balla DCJ or another judge. The costs of the summons of 18 January 2013 should be at the discretion of the judge who conducts the further hearing.
The following orders should be made: 1. Leave to appeal be granted; 2. The notice of appeal filed on 19 March 2014 stand as the notice of appeal; 3. The appeal be allowed; 4. The orders made by the District Court on 20 December 2013 be set aside; 5. The summons of 18 January 2013 be remitted to the District Court for determination of the question of whether or not the Applicant has provided a full and satisfactory explanation for his delay in commencement of proceedings for recovery of damages in respect of the injuries suffered in the accident on 20 November 2007; 6. The Respondent pay the Applicant's costs of the application for leave to appeal and of the appeal.
LEEMING JA: I agree with the orders proposed by Emmett JA and with his Honour's reasons.
The respondent asked this Court to accept the invitation in Fletcher v Besser [2010] NSWCA 30 at [17] and Levy v Bablis [2012] NSWCA 128 at [20] to reconsider what was held in Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139 in light of ss 56-60 of the Civil Procedure Act 2005 (NSW).
The ratio of Manning is found in the reasons of Foster AJA, with which Heydon JA agreed and from which Mason P dissented. Foster AJA rejected the reasoning of the majority of the Victorian Court of Appeal in D A Christie Pty Ltd v Baker [1996] 2 VR 582 and held that the mere making of the second application with additional material did not, of itself, constitute an abuse of the court's process. His Honour contrasted "a genuine endeavour to repair the deficiencies in the first application" with "a case of 'hawking' the application from judge to judge in a search for a successful outcome": at [124]. Heydon JA agreed and rejected the Nominal Defendant's submission that it was necessary for the other party to be guilty of fraud or there to be evidence which could not reasonably have been relied on beforehand in order for there to be an abuse of process. The foregoing is merely by way of summary, and does not do justice to the majority's reasons, but suffices for present purposes.
Emmett JA's reasons explain why it has been unnecessary to consider that question in this appeal. Had that not been so, the joint judgment of Bathurst CJ, Beazley P and McColl JA in Lachlan v HP Mercantile Pty Ltd [2015] NSWCA 130 would have been apposite. That judgment rejected a submission that the enactment of ss 56-58 had altered the way in which a discretion to vary a consent order was to be exercised. Their Honours said at [30] that: "Sections 56-58 make plain and more prescriptive what was always the case, namely that the processes of the court are to be utilised for proper purposes and in a way that is efficient, cost effective and in accordance with the dictates of justice. Section 58(2)(vi) makes it explicit that the dictates of justice require consideration of the position of both parties. By their terms, ss 56-58 apply to the rules, including UCPR, r 1.12. As Wilson J stated in FAI General Insurance and Barwick CJ explained in Klein, where a discretion is conferred on the court in general terms, the court is required to exercise that discretion so as to 'prevent injustice' or in accordance with the judge's view of the justness of the case. These are the same concepts found in ss 56-58. These provisions have not altered the manner by which a general discretion is exercised by the court or altered the scope or purpose of provisions that confer general discretion on the judicial decision maker."
The similarity between that submission and the principles in Manning is clear, and if and when any application is made to reconsider Manning in the future, it will be apt to have regard to the confirmatory effect of ss 56-58 on the exercise of discretions expressed in that passage. Because it has not been necessary in this appeal to determine the question, there was no occasion to invite the parties to make submissions on Lachlan v HP Mercantile Pty Ltd, which was delivered subsequently to the appeal being heard.
ADAMSON J: I agree with Emmett JA.

Endnotes

Definitions of claim and claimant, s 3.
Balla DCJ referred to Wentworth v Rogers (Supreme Court (NSW), Sperling J, 28 April 1995, unrep); Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44; D A Christie Pty Ltd v Baker [1996] 2 VR 582 and Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139.
See Chouman v Margules (1993) 17 MVR 144 at 149.
See, eg, Rogers v The Queen [1994] HCA 42; 181 CLR 251 at 273-4.
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46.
Ibid.
Citing Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139.
See Fletcher v Besser [2010] NSWCA 30 at [17].
Civil Procedure Act, s 56(1)-(3).
Civil Procedure Act, s 57(1).
Civil Procedure Act, s 58.
See, eg, Rebenta Pty Ltd v Wise [2009] NSWCA 212 at [9]ff; Evans v Evans [2011] NSWCA 92 at [140-[142]. 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: 21 May 2015

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