BROWN v JAMMAL

Court of Appeal (NSW)|1995-05-17|Before: Kirby P

KIRBY P, HANDLEY and SHELLER JJA 17 May 1995, 16 June 1995

PRACTICE AND PROCEDURE - amendment - misnomer of party - after expiry of limitation period - whether mistake as to name - whether mistake as to identity - HELD: Mistake as to name. Bridge Shipping Pty Ltd v Grand Shipping SA and Anor (1991) 173 CLR 231 applied. LIMITATION OF ACTIONS - expiry of limitation period - amendment of statement of claim - whether mistake as to name or identity - held: As to name. PRACTICE - causes of action and parties - amendment - outside limitation period - whether authorised. WORDS AND PHRASES - "mistake in the name of a party".

PRACTICE and PROCEDURE - amendment - statement of claim - mistake of name of party - statement of claim filed nominating Government Insurance Office as defendant - pleading does not otherwise refer to it - pleading refers throughout to the negligence of the driver who is named therein - coversheet of document describes driver as defendant - Government Insurance Office not liable for negligence of driver of vehicle registered and insured in South Australia - whether mistake is of name of proper party or identity of the party in law liable - whether mistake was misleading or such as to cause reasonable doubt as to the identity of the person intending to be made a party - whether having regard to prejudice the order permitting the substitution of the name of the driver was in error - held: (1) In applying Pt17 R4 DCR, the Court must distinguish between mistakes as to the name of a party and mistakes as to the identity of the person in law liable. Bridge Shipping Pty Ltd v Grand Shipping SA and Anor (1991) 173 CLR 231; Price v Ferris (1994) 34 NSWLR 704 (CA); Lloyd Steel Co (Aust) Pty Ltd and Anor v Jade Shipping SA and Anor (1985) 1 NSWLR 212 (SC); Evans Constructions Co Ltd v Charrington and Co Ltd and Anor [1983] 1 QB 810 (CA) discussed and applied; (2) In the present case the mistake was as to the name of the defendant and it was not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be sued. Smith v The Nominal Defendant and Anor, Court of Appeal (NSW), unreported, 17 February 1994; [1994] NSWJB 10 distinguished; (3) No error was shown in the exercise of discretion to order the amendment, notwithstanding some prejudice to the party so joined; (4) Appeal dismissed.

LIMITATION OF ACTIONS - addition of party - addition beyond limitation bar

limitation period expired - mistake as to identity of proper party amendment to correct statement of claim - whether mistake as to name of party or as to identity of party in law liable - held: Mistake as to name - appeal dismissed.

PRACTICE and PROCEDURE - causes of action and parties - parties - amendment - after expiry of limitation period - mistake as to name of party - whether mistake as to identity of party in law liable - amendment of original process authorised - District Court Rules Pt17 R4.

WORDS and PHRASES - "mistake in the name of a party". Limitation Act 1969. Motor Vehicles (Third Party Insurance) Act 1942, s14, s14B. Motor Vehicles (Third Party Insurance) Amendment Act 1984, Schedule 1. District Court Rules Pt17 R1, R4.

Kirby P This appeal, by leave, from orders of Kennedy-Smith A-DCJ concerns the amendment of the name of a party to District Court proceedings. That party challenges the amendment on the ground that, in effect, it renders him liable whereas otherwise he would have been protected by the Limitation Act 1969.

Mr Assan Jammal (the respondent) was injured at 3.50 pm on 25 November 1986. The circumstances giving rise to his injuries appear to indicate negligence on the part of the driver of a vehicle which collided with his. The incident took place in Concord Road, North Strathfield, a suburb of Sydney. A traffic accident report shows that the respondent's vehicle was stationary in traffic travelling north. He was waiting to turn right. The tortfeasor's vehicle was also travelling north. As it overtook the respondent's vehicle it collided with the rear of it. The collision caused the respondent's injuries.

This unremarkable incident would ordinarily have resulted in a damages claim of modest proportions litigated in the District Court. However, two facts combined to complicate the matter:

The tortfeasor's vehicle was registered in South Australia. This fact affected the identification of the defendant liable to be sued; and

The respondent consulted successively lawyers who, to put it no higher, appear to have made mistakes in handling his case.

The tortfeasor was Mr Lionel Brown, the present appellant. He was driving motor vehicle R1 3213 owned by Scott's Transport Industries Pty Ltd. That vehicle was registered in South Australia, as shown by a certificate issued pursuant to s140 of the Motor Vehicles Act 1959 (SA). It was insured under the lastmentioned Act by the State Government Insurance Commission of South Australia. It was not registered in New South Wales nor was it insured under the Motor Vehicles (Third Party Insurance) Act 1942 (the Act).

In about April 1987, the respondent consulted Messrs Beckers and Wade, solicitors, of North Parramatta. They wrote to the manager of the Government Insurance Office of New South Wales on 8 April 1987 giving notice of a claim and requesting "your usual request for particulars". Following this, a reply dated 4 May 1988 stated:

"Investigations reveal the negligently driven vehicle was registered in South Australia Accordingly your demands should be directed to the relevant State insurer."

Nothing could have been clearer - and as it turned out, more accurate. One would have thought that the presentation of this information would have occasioned the accurate identification of the person(s) liable in law to the respondent. Not so.

For reasons which are undisclosed but may be imagined, the respondent changed his solicitors. On 10 November 1988, Messrs McDonalds Eggerton and Watts were retained. They briefed Mr Delaney, barrister, to "settle" a statement of claim. The first draft statement of claim ensued. Its precise form is not known but a document produced to the Court shows a statement of claim which named the respondent as plaintiff and three persons as defendants viz Scott's Transport Industries Pty Ltd, Mr Brown and the Nominal Defendant. The nomination of the lastmentioned defendant was legally erroneous. The previous statutory liability of the Nominal Defendant for uninsured drivers and vehicles in New South Wales

was repealed by the insertion in the Act of s 14(1) and (3) by the Motor Vehicles (Third Party Insurance) Amendment Act 1984, Schedule 1 CL(9). Those sections read, relevantly:

"14(1) Every claim for damages in respect of... bodily injury to any person caused by or arising out of the use of a motor vehicle, the identity of which is established and which, at the time the circumstances resulting in the... bodily injury occurred, was -

(b) in the case of an uninsured motor vehicle, being used on any public street in New South Wales, being a claim which, but for this section, could be made against the owner or driver of the motor vehicle, shall be made against the Government Insurance Office and any proceedings to enforce any such claim for damages shall be taken against the Government Insurance Office and not against the owner or driver of the motor vehicle.

(3) In respect of a claim referred to in subs(1), the Government Insurance Office shall,... be liable as if it were the owner or driver of the motor vehicle in relation to which the claim is made."

As to the position of motor vehicles uninsured for the purpose of the Act but insured in another State or Territory, the 1984 amendments to the Act provided:

"14B Nothing in s14... entitles a person to make a claim for damages in respect of the... bodily injury to any person caused by or arising out of the use of a motor vehicle which, at the time the circumstances resulting in the... bodily injury occurred, was registered pursuant to the law of a place other than New South Wales."

By reason of s14 and s14B it is clear that there was, in law, no liability in the Government Insurance Office of New South Wales. Still less was there liability in the Nominal Defendant, whose position had, even in respect of New South Wales claims, been replaced by the insurer. The only liability in respect of a vehicle registered pursuant to the law of a place other than New South Wales, was the liability at common law of the owner or driver of that vehicle.

The draft statement of claim naming the three parties, including the Nominal Defendant, bears on its face certain alterations. The Nominal Defendant was replaced by "Govt Insurance Office" (sic). Various changes were made in handwriting to the typewritten draft of the pleading. The fact that the pleader knew that the offending vehicle was an interstate vehicle is made clear because the draft contains a statement to that effect. Whether the handwritten amendments were made by the solicitors or by counsel when he "settled" the draft is undisclosed by the evidence. It appears that the draft was never filed in the District Court.

A typewritten variation of the draft naming Scott's, Mr Brown and the Government Insurance Office of New South Wales was produced on an unknown date but presumably in 1989 as the space is left in the draft for the assignment of a 1989 District Court file number. This draft was a further amended version of the draft last referred to. It contains the averment: "As all natural times (sic) the said vehicle RI 3213 was an insured vehicle within the meaning of the Motor Vehicles Third Party Insurance Act 1942."

The confusion in the mind of the drafter is shown by the fact that, although the Government Insurance Office is named as the first defendant, para2 of the draft avers:

"The third defendant is a Nominal Defendant pursuant to the Motor Vehicles Third Party Insurance Amendment Act 1984."

The draft repeats the assertion that the offending vehicle had a South Australian registered number. It does not appear that this draft was ever filed in the District Court.

Possibly for want of satisfaction in the pursuit of his apparently straightforward entitlements, the respondent changed his solicitors for a third time. He engaged Mr Gerald Keefe of Keefe and Co. On 26 October 1989 Mr Keefe wrote to Messrs McDonald Eggerton and Watts announcing his retainer and requesting the file of papers. The latter wrote to the respondent on 16 November 1989 stating (apparently incorrectly):

"We have now filed a statement of claim joining three defendants being:

Scott's Transport Industries Pty Ltd, being the owner of the motor vehicle;

Lionel William Brown, the driver of the vehicle; and

The Government Insurance Office of New South Wales, the Nominal Defendant in matters where a vehicle is uninsured in New South Wales although normally resident here.

The complication in your matter is that the first defendant is in liquidation. We therefore would be required to obtain permission from the Supreme Court to proceed with this defendant. Further the GIO will no doubt deny liability on the basis that they are not the appropriate defendant claiming the vehicle is not normally resident in NSW."

Mr Keefe then produced the version of the statement of claim which was actually filed in the District Court. It has a number of peculiarities. On the backsheet only two parties are named, viz the respondent as plaintiff and "William Brown" as defendant. However, on the coversheet the only nominated defendant is "Government Insurance Office of 91 York Street, Sydney". The pleading does not differentiate between the foregoing nominated defendants.

"2. At all material times the defendant drove the vehicle registered RI 3213 when such vehicle collided with the plaintiffs vehicle.

At all material times the said William Brown so negligently drove, managed and controlled the said motor vehicle that it cam (sic) into collision with the plaintiff to vehicle causing injury to the plaintiff.

It is alleged that the said William Brown was guilty of negligence in that... [there follow eight particulars of negligence]"

On 8 August 1990 Mr Keefe wrote to the Government Insurance Office enclosing copy of the statement of claim by way of service. On 27 August 1990 the Government Insurance Office wrote to Mr Keefe with the same advice as had been previously given:

"T would advise that as your client is the driver of one of the vehicles involved his only course of action (sic) is against the other vehicle. In this instance the other vehicle is registered and insured for compulsory third party in South Australia.

Iam enclosing the relevant statement of claim and would suggest you amend same as this office will not be the defendant in this matter."

This letter carried the same reference number as the letter written two years earlier. Despite the repeated insistence that the wrong defendant had been named, Mr Keefe took no action to amend his statement of claim within time. Indeed, Mr Keefe appears to have taken very little action whatsoever.

Eventually, the unfortunate respondent left his third solicitor and retained the present solicitors, Messrs Taylor and Scott. They, for the first time, in November 1994, appreciated the legal problem of pursuing the Government Insurance Office (by then replaced by the New South Wales Insurance Ministerial Corporation). They took proceedings by motion in the District Court for an order that the respondent's statement of claim be amended by substituting "Lionel William Brown for Government Insurance Office of 91 York Street, Sydney, 2000 on the front page thereof". This motion was resisted by Mr Brown. Had the respondent first sued him in November 1994, ie eight years after the accident, Mr Brown would have been entitled to plead a defence under the Limitation Act 1969. In these circumstances, as he claimed that he had not previously been sued by the respondent, he objected to the amendment sought.

Mr Keefe threw no light on the reasons for the mistake in naming the Government Insurance Office in his process. The evidence discloses that, although the file papers were made available to Mr Keefe, he did not, or could not, assist. Mr Keefe is bankrupt, reportedly overseas and his name has been removed from the Roll of Solicitors.

The foregoing chronicle is truly discouraging. In due course I will propose that something be done about it for it is left to the courts, ultimately, to uphold proper professional standards and to protect persons who consult lawyers from the mistakes and neglect which appear to have characterised the conduct of this case until it came into the hands of the present representatives of the respondent.

To secure the amendment sought by his motion, the respondent relied upon Pt17 R4 DCR. That rule appears in a part of the rules which is concerned with amendment. It contains a general provision (Pt!7 Rl DCR) giving the District Court broad powers at any stage in proceedings, on terms, to amend documents filed in the court. The broad application of the amendment power in modern circumstances has been noted many times. See eg Longhurst-Saunders v Cooper and Ors (1956) 73 WN (NSW) 455. However, amendments which affect the rights of parties otherwise entitled to plead a limitation bar, have traditionally been regarded as having a special quality. This is because the whole point of the limitation bar is to protect persons from stale claims and to entitle them, after the limitation period, to order their affairs upon an assumption that they will not be exposed to litigation. The relevant rule provides:

4(1) Where any relevant period of limitation expires after the date offering of a statement of claim and after that expiry an application is made under rule I for leave to amend the statement of claim by making the amendment mentioned... the Court may in the circumstances mentioned in that subrule make an order granting leave accordingly, notwithstanding that that period has expired.

(3) Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party."

Kennedy-Smith A-DCJ recounted the principal facts. He referred to various decisions of the High Court of Australia, this Court and English courts. He then stated his conclusion:

"In my view it is plain that the party sought to be sued was always, in the document filed, the actual tort feasor, William Brown and by mistake or misadventure or something more incomprehensible the words 'Government Insurance Office of 91 York Street, Sydney' were inscribed as the defendant, notwithstanding the fact William Brown's name appears on the backsheet and elsewhere in the body of the statement of claim.

[Counsel] submits that the fact that the law at the time required when suing somebody driving a vehicle registered in New South Wales in the name of the Government Insurance Office, requires me to find that it is a mistake of law and not a mistake of fact and that the section (sic) should not apply. In my view, the surrounding circumstances of the drafts leading up to the filing of the present document and on the face of the present document draw me to the conclusion that it was an inadvertence rather than a deliberate decision to sue the Government Insurance Office in the character in which he had to be sued at that time.

It may be, in any event, that if the Government Insurance Office were intended to be sued in that interest namely as the insurer of the driver; then the remarks of Handley JA in Smith v Nominal Defendant would be of some aid to the applicant, because the GIO being shown to be in the same interest as the defendant, to admit the amendment (sic)."

His Honour also dealt with the suggested prejudice which would be occasioned if the amendment were allowed. On this, he referred to the existence of the police report and of prior proceedings in respect of other occupants of vehicles in, or parties to, this collision. Their claims have long since been disposed of. His Honour concluded:

"[S]o it seems that those representing Mr Brown's interests have had notice of the occurrence for a significant period of time".

Kennedy-Smith A-DCJ therefore made an order pursuant to Pt!7 R4(3) DCR granting leave to the respondent to amend the name of the defendant by deleting the words "Government Insurance Office" and inserting Mr Brown's name in its place. He ordered costs and provided for service of the amended statement of claim.

It is against the foregoing orders that Mr Brown has appealed to this Court. Leave to appeal was granted on 6 February 1995. The only matter agitated in the appeal has been the order made under Pt!7 R4 DCR Three issues were argued in the appeal, namely:

Whether, in the circumstances disclosed, a "mistake" in the name of a party of the kind envisaged by the rule was shown authorising the order;

If so, whether the mistake was, within the rule, "not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party"; and

Whether in the exercise of the District Court's discretion, having regard to the prejudice to Mr Brown, the order ought to have been made.

There is a long established rule of the common law that a court should not, except in special circumstances as provided by or under legislation, permit a person to be added or substituted as a defendant to proceedings at a time when that person, if sued, could rely on a period of limitation barring the other from bringing fresh proceedings. See Braniff v Holland and Hannen and Cubitts (Southern) Ltd and Anor [1969] 1 WLR 1533 (CA); Liff v Peasley and Anor [1980] 1 WLR 781 (CA). Before the provision of rules, of which Pt!17 R4 DCR is an example, the courts had held that an amendment to cure a misnomer of a

part would not be allowed. See Weldon v Neal (1887) 19 QBD 394. It was to overcome the perceived injustice of that holding and to substitute a general discretion to allow an amendment, notwithstanding that it raises a statute-barred cause of action against the nominated part, where justice so requires, that rules of this kind were made. See McGee v Yeomans [1977] 1 NSWLR 273 (CA);

There is a tension between rules such as Ptl7 R4 DCR and the provisions of the Limitation Act 1969. However, it has been held that rules of this kind are not ultra vires the rule-making power as being inconsistent with the provisions of the lastmentioned Act (s63). See Chappell v Laming and Ors [1981] 2 NSWLR 765 (SC). The validity of the rule was not disputed in this case;

The mistake enlivening the discretion under the rule must be a mistake as to the name of the party. In cases of misnomer, misdescription or clerical error affecting the name of the party the amendment power certainly exists. See Attorney-General for England v Sorati [1969] VR 88; Hubbard Association of Scientologists International v Attorney-General for Victoria [1976] VR 119; Evans Constructions Co Ltd v Charrington and Co Ltd and Anor [1983] 1 QB 810 (CA), 816. But the rule does not provide a broad discretion to overcome or circumvent the provisions of the Limitation Act;

Nevertheless, the preconditions for its application being established, the rule must be given a broad construction compatible with its beneficial purposes. See Bridge Shipping Pty Ltd v Grand Shipping SA and Anor (1991) 173 CLR 231,
In that case, writing of the rule of the Victorian Supreme Court, McHugh J explained its scope. He said:

"[The rule]... is a remedial rule and should be given a beneficial interpretation. It is proper to give it the widest interpretation which its language will permit... It should be interpreted to cover not only cases of misnomer, clerical error and misdescription but also cases where the plaintiff; intending to sue a person he or she identifies by a particular description, was mistaken as to the name of the person who answers that description...

The rule imposes three limitations on a person's right to amend. First, there must be a mistake. Secondly, the mistake must be 'in the name of a party'. Thirdly, the Court may only make the order where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his or claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise."

Because the concern of the first question is to identify whether there has been a mistake, it is normal for the court to consider evidence of the intention of the solicitor or other person who filed the supposedly mistaken document. Thus the court will ordinarily examine an affidavit from the solicitor who, if necessary, will be submitted to questioning as to the supposed mistake. However, where, as here, the solicitor is unavailable, the court is not without power. It can examine the suggested mistake from the point of view of the solicitor's file, the solicitor's correspondence and other surrounding circumstances from which inferences may be drawn. Because Mr Keefe was not available to give evidence in the instant case, Kennedy-Smith A-DCJ was obliged to consider the existence and apparent quality of the mistake from the objective facts available to him;

The objective facts must be viewed as a whole. This is because it is the duty of the Court to exercise a discretion having regard to all relevant facts presented to it. Of course, the determination that a mistake has occurred, and that it is one that attracts the rule, will sometimes strike different judges in different ways. So it was in Evans Constructions where Waller LJ dissented. So it was in Smith v

The Nominal Defendant and Anor, Court of Appeal, unreported, 17 February 1994; [1994] NSWJB 10, where I dissented. But in every case, it is necessary for the decision-maker to view the totality of the evidence before approaching the task of characterisation required by the rule. Cf Lloyd Steel Co (Aust) Pty Ltd and Anor v Jade Shipping SA and Anor (1985) 1 NSWLR 212 (SC), 217f;

Characterising the mistake may lead the Court to a conclusion that the pleader's error concerns the legal effect of a rule of the common law or of statute by which one person rather than another is liable. If that is the conclusion of the Court the mistake is not in the "name" of the party. True, an incorrect party will have been named. But the misnomer is not the character of the mistake. It is its result. In such a case, the court must dismiss the application. See Smith, above, per Handley JA 7. Confusion as to who was, in law, the proper party is not a foundation for the application of the rule. That application is limited to the case where a mistake has occurred in the naming of the party. See Price v Ferris (1994) 34 NSWLR 704 (CA), 709. Where such mistakes of law occur on the part of the legal advisers of a party, that party will normally not be without redress. Part, at least, of the claim may be recovered in a negligence action against the lawyer responsible for the mistake of law; and

The requirement that the mistake was not misleading nor such as to cause reasonable doubts as to the identity of the person intended to be made a party, is designed to reinforce the characterisation of the "mistake" which qualifies for the application of the rule. But it also qualifies the cases where such a "mistake" will attract a favourable exercise of the court's discretion. That discretion remains to be exercised ("the Court may make an order') by reference to relevant considerations. These will include consideration of any prejudice which, by evidence or inference, the court considers the new party to suffer by reason of the making of the order substituting it for the party originally named.

The appellant contested that the "mistake" in the present case was to be classified as one in identifying the "name" of the party to be sued. Viewed against the background of the evidence extracted from Mr Keefe's file, it was suggested that the proper inference which this Court would draw (and which the primary judge ought to have drawn) was that any "mistake" was simply one of the legal operation of the Act to the case of the liability of the driver of a motor vehicle registered (and insured) outside New South Wales:

A sequence of draft statements of claim indicate that the predecessors to Mr Keefe were in a state of confusion and uncertainty as to the identity of the defendant, in law, liable in the present case;

The nomination of the Government Insurance Office as the defendant, by Mr Keefe in the statement of claim which he eventually filed, was correct if the tortfeasor's motor vehicle was registered and insured in New South Wales. The mistake of law which occurred was to assume that this liability extended equally to the owner and driver of a motor vehicle registered (and insured) elsewhere;

Wherever else the name of Mr Brown appeared, specifically or by reference in the filed statement of claim, the nomination of "Government Insurance Office" appeared in that part of the document which identified the defendant being sued. This showed that Mr Keefe, on behalf of the respondent, intended to sue the Government Insurance Office. All else may have been mistaken. But the nomination of the defendant was not; and

That this was Mr Keefe's intention was shown by his subsequent action in sending the process to the Government Insurance Office and not to Mr Brown. That this was done, and persisted in, despite the earlier and later warning by the Government Insurance Office that it was not in law liable proved that Mr Keefe's problem was not the name of the defendant but the identity of the person who was, in law, liable to the respondent in the premises. So went the argument for Mr Brown.

Whilst acknowledging the force of these submissions, I do not accept that they demonstrate error on the part of Kennedy-Smith A-DCJ. True it is that the Government Insurance Office is nominated as the defendant on the coversheet. But all of the details of the way in which the cause of the respondent was pleaded makes it tolerably plain that the document was intended as the pleading of a case against Mr Brown:

Thus in para2 it is averred that "the defendant drove the vehicle". That is not an apt reference to any way in which the Government Insurance Office could be liable. It is not sanctioned by the terms of s14(3) of the Act;

In para3 Mr Brown is specifically mentioned when it is alleged that "the said William Brown so negligently drove the said motor vehicle";

So in para4 it is averred that "the said William Brown was guilty of negligence";

The reference to the "said" is not an apt reference to the defendant nominated on the front of the statement of claim. This would therefore suggest to the reader that that defendant so nominated was incorrectly named;

No averment is included as to how, in any way, the Government Insurance Office could be liable. There is not the usual paragraph pleading its liability as arising under the Act; and

On the coversheet of the statement of claim, bearing the stamp of the District Court the name "William Brown" appears as "defendant".

Thus, everything in the body of the statement of claim and on its backsheet is consistent with the defendant being William Brown. Nothing in it is really consistent with the defendant being the defendant named in the front page as "Government Insurance Office".

These facts warranted Kennedy-Smith A-DCJ concluding that the characterisation of the "mistake" in this case was one as to the "name" of the defendant. I would reject the appellant's submissions to the contrary.

The next question is whether the mistake so identified was misleading or "such as to cause reasonable doubt". This must be judged by the response of the reasonable reader to receiving the document containing the "mistake".

This point was not specifically argued before Kennedy-Smith A-DCJ. However, it was agreed for the respondent that it was a matter of law upon which no additional evidence would have been relevant. Accordingly, it could be raised in this Court. See Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1, 7f.

The reasonable reader of the entirety of the document filed as the respondent's statement of claim in the District Court would certainly have been puzzled by the nomination of the Government Insurance Office as the defendant named on the front sheet. If, however, the reader read the entirety of the document, including the backsheet and the way in which the cause of action was pleaded, he or she would be left in no real doubt that the person intended to be sued was the said "William Brown". I take that to be the same person as the present appellant, Mr Lionel William Brown. No submission to the contrary was put.

Accordingly, the mistake was such as to qualify for the exercise of the District Court's discretion.

The appellant complained that Kennedy-Smith A-DCJ had failed adequately to take into account the matters of prejudice which were raised in resistance to the provision of the order. These included:

(i) The sheer lapse of time occasioning the erosion of memory and the difficulty of contesting a claim which happened nearly a decade ago;

(ii) The destruction of police notebooks and other documents (if any) in the custody of police which might have been secured if the claim had been made within time; and

(iii) The ordinary difficulties that would be experienced in checking the respondent's injuries and disabilities years after the accident and without prior contact with the case.

As against these considerations, it was, I believe, open to the primary judge to take into account a number of matters which tended to reduce the prejudice complained of:

(a) The accident report made by the police is available and was placed before the Court in these proceedings. The suggestion of the appellant that it would constitute a contempt of court to use documents obtained in one proceedings, by subpoena or discovery, in prosecuting or defending another cause is without substance. Even if the majority view in Harman v Secretary of State for the Home Dept [1983] 1 AC 280 (HL) is correct, it does not prevent the legitimate use by the appellant of the information contained in the police report. That information can be followed up to provide new evidence which would be available to the appellant in defending the respondent's claim;

(b) The evidence disclosed that at least one other plaintiff had correctly brought proceedings against Mr Brown. Those proceedings were determined long ago by McLachlan DU. Thus, Mr Brown cannot really argue with conviction that the opening of the present respondent's claim against him brings to his notice for the first time, years after the event, the risk of his being sued for damages as a result of the collision. By reason of the earlier proceedings, the appellant (and his insurer) were on notice. Doubtless the circumstances of the collision were explored for the earlier proceedings. That exploration would be available for the defence of the present proceedings; and

(c) Whilst the complaint about the delay in securing a medical examination of the respondent is a reasonable one, it was not voiced at the trial. It raises a factual issue which was therefore not explored at first instance. I do not believe that this Court can consider that factor now without working a procedural unfairness upon the respondent.

Although the case is finely balanced and there is certainly prejudice to the appellant, I am not convinced that such an error has occurred as would warrant this Court's disturbing the discretionary decision of Kennedy-Smith A-DCJ. That decision should therefore stand.

In view of the discouraging history of delay and mistakes recounted in these reasons, in what was otherwise an apparently simple and straightforward damages case, I will direct that the papers be referred to the Law Society for investigation. The Court must do this when such cases arise, as a protection to the members of the public who trust that the legal profession is a skilled and learned profession. Of course, Mr Keefe's name has been removed from the Roll. The direction involves no prejudgment of the other solicitors concerned. They have

not been heard. It will be for the Law Society - and later, if relevant, the Bar Association - to decide whether any action is proper in the circumstances. The further delay since they were involved would be a consideration relevant to any action by the professional bodies. 5 Orders The appeal should be dismissed with costs.

Sheller JA I agree with Kirby P. Appeal dismissed with costs.

Counsel for the claimant: BW Collins QC/SW Climpson 15 Solicitors for the claimant: Windeyer Dibbs

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