Case v Colchester GR Pty Limited

CATCHWORDS : Appeal - Evidence -reliability LEGISLATION CITED : Workers Compensation Act 1987 Case v Colchester GR Pty Limited [2001] NSWSC 528; House v The King (1936) 55 CLR 499; CASES CITED : Ipex Graphics Pty Ltd v Elliott (2002) 54 NSWLR 207; Parsons v Doukas (2001) 52 NSWLR 162; Salido v Nominal Defendant (1993) 32 NSWLR 524; PARTIES : Maryanne Case - Applicant Colchester GR Pty Limited - Respondent FILE NUMBER(S) : SC 10296 of 2001 COUNSEL : Mr J Young -Applicant Mr D Brogan -Respondent SOLICITORS : Marsdens Solicitors -Applicant Bartier Perry - Respondent

LOWER COURT Supreme Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Master Harrison JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 Shaw J: This is an appeal against a decision of Master Harrison to decline leave to the plaintiff to commence court proceedings out of time in respect of injuries suffered as a result of an accident which occurred on 15 November 1997: [2001] NSWSC 528. 2 The application for leave to file a statement of claim outside of the ordinary limitation period of three years is brought under s 151D of the Workers Compensation Act 1987 (NSW). Section 151D of that Act requires that common law proceedings be brought within three years of the accident, and so proceedings should have been commenced before 15 November 2001. Section 151D of the Act states: 151D. Time limit for commencement of court proceedings against employer for damages (1) (Repealed) (2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken. (3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies. (4) This section does not apply to the commencement of court proceedings in respect of a claim within the meaning of Part 5 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999 . 3 In the present case the proceedings were commenced on 2 February 2002 and the applicant was therefore eleven weeks out of time. Despite this relatively modest disparity between the limitation period and the time at which proceedings were commenced, the Master, in the exercise of her discretion, thought that there should not be leave granted to commence the proceedings beyond the limitation period.

4 My reading of the judgment at first instance indicates that it was a lack of reliability of the applicant's evidence in support of the application for an extension of time which prompted the decision to decline leave. 5 The Master identified discrepancies in the applicant's evidence, some of which were regarded as 'critical' in relation to her claim. One discrepancy was the claim in the affidavit filed by the applicant that she did not understand the consequences of making a common law claim, as opposed to pursuing an action under the workers' compensation legislation. However, during cross examination the applicant was asked about the legal advice that she had been given and affirmed that she had an understanding of the decision not to take common law proceedings at that point. The Master said that she could not reconcile contradictory evidence and could not attribute the inaccuracies to the level of drugs that the applicant had been taking as was asserted by the applicant in cross examination. It followed that if the applicant's evidence was unreliable on an important issue on the leave application, it was said, 'it cannot be expected that at trial she would be any more reliable'. 6 Although there is not an unequivocal finding about the credibility of the applicant in the Master's decision, it seems to me that the decision was based upon the unreliability of the applicant as a witness. 7 There is no doubt that the substance of the reasoning at first instance to decline to extend the period of limitation is the performance of Ms Case in the witness box. The Master had difficulty in understanding and accepting her evidence and noted that the applicant found it difficult to give accurate answers to the questions due to the 'clouding of her mind' as a result of the medication she was taking in relation to her condition. It was said that the lack of accuracy of the applicant's evidence makes it difficult for the respondent to prepare for trial and in these circumstances there was identified 'actual prejudice' to the respondent.

8 The critical question in the exercise of the court's discretion is whether the unreliability of the evidence of the applicant at first instance, and this is a finding that I must pay due deference to, is sufficient to exclude the claim because it is out of time. In my opinion, it is relevant that, as the Master recorded, there was medical evidence that since the end of 2000, the applicant's level of functioning has been dramatically affected because she has been pre-occupied with the breakdown of her marriage and has a sense of loss together with a depressive disturbance. As the Master said 'in particular, the plaintiff's concentration and memory have been impaired'. 9 It follows that any adverse findings about the applicant's evidence and its reliability need to be assessed against that background. 10 The leading case is Salido v Nominal Defendant (1993) 32 NSWLR 524. That case concerned the Motor Accidents Act 1988 (NSW) although counsel for the applicant made the salient point that under that Act there is an express provision requiring an applicant for an extension of time to provide a 'full and satisfactory explanation' to the court for the delay. Under the present legislative regime there is no such express obligation. Nonetheless, Salido decides a number of things that are relevant to the determination of the present application, in particular, that:

(a) there is no obligation on the applicant to demonstrate something that is special or extraordinary;

(b) there are cases where it is fair and just to grant a dispensation from the legislative time limitation period;

(c) there is no obligation upon the applicant to bear an onus of an additional nature in relation to such an application for dispensation;

(e) the court has ' a very large discretion ' (to use the words of Kirby P at 536) to permit proceedings to be taken outside the statutory time limitation; and

(f) the test ultimately is whether it was ' fair and just ' that leave be granted. 11 In Parsons v Doukas (2001) 52 NSWLR 162 Powell JA (with whom Sheller JA agreed) noted at 191 that any discretion to grant leave remains one of leave and at no point becomes a discretion to refuse leave: …an applicant must satisfy the Court that grounds exist for the exercise of the discretion in his or her favour, the ultimate onus of satisfying the Court that time should be extended remaining on the applicant throughout. 12 In Parsons, Sheller JA stated that where an unexplained delay does not result in prejudice to the defendant the discretion would be properly exercised in favour of the plaintiff but considered that the Court would not be bound to do so. The question, for his Honour, was whether the delay had made the chances of a fair trial unlikely (see also Ipex Graphics Pty Ltd v Elliott (2002) 54 NSWLR 207 at 210). 13 However, in Ipex Graphics, Ipp JA said that a deliberate decision of the applicant to allow a limitation period to expire could be grounds for the Court to refuse leave. His Honour described this consideration as a 'powerful factor against the grant of leave' (at 225). However, I do not understand Ipex Graphics to be an authority for the proposition that either an unexplained delay in taking an action or a decision not to undertake action within time to be, of itself, grounds to refuse the application. 14 To the extent that the Master focused upon the latter consideration this excluded from the exercise of her discretion other equally powerful considerations on the fairness or unfairness of allowing the extension. In my opinion, too much weight was given to questions of credibility at an interlocutory stage of the proceedings, and insufficient weight was given to the prima facie right of a citizen to bring an application to the courts, albeit out of time. Such questions of credibility and the reliability of the applicant as a witness can be more adequately dealt with at the trial. 15 It seems to me that there is an evidentiary basis to find that the applicant was in no fit state to act upon advice that she received from her solicitors on 14 September 2000 about her rights to take common law proceedings. As a result of marital problems, medication and drugs there were difficulties imposed on the applicant in understanding precisely what she should do within the legal system in relation to what she says are her rights. 16 Accepting the relevance of House v The King (1936) 55 CLR 499 principles, it is my view, with great respect to the Master, that too much weight has been given to the question of the reliability of the applicant as a witness, and insufficient weight or relevance has been given to the importance of the applicant being allowed to advance her claim in the judicial system so as to vindicate what she claims are her rights. House v The King allows a judge on appeal to take the view that the where the result is unreasonable the court may infer that there has been a failure to properly exercise the discretion, that is, that a substantial wrong has occurred (per Dixon, Evatt and McTeirnan JJ at 505). 17 I do not believe that the respondent has been able to articulate with any precision or persuasiveness a tangible prejudice that it suffers by reason of the prosecution of this claim, eleven weeks out of time. The respondent is in a position to identify, if it can, any prejudice to its position in relation to a claim brought marginally out of time. But I do not believe that it has successfully done so before this court. As counsel for the applicant says: the respondent and the insurer were on notice of the occurrence of the accident one month after it happened and there has been an ongoing involvement in treatment and rehabilitation since that time. 18 To the extent that the respondent says that the applicant was an unsatisfactory witness before the Master, then presumably it has material for the cross examination of the applicant at trial. The respondent does not submit that the claim is hopeless or frivolous. I am unable to see any basis upon which it could be said that a fair trial would be impossible or even unlikely. 19 What has occurred is a relatively modest infringement of the limitation period, which I believe, in all of the circumstances, should be excused in the interests of justice. If the ultimate test is, as the authorities indicate, whether it is 'fair and just' to grant an extension of the statutory time limitation period, I believe this is an appropriate case for doing so. 20 Accordingly, the orders of the Court are:

1. Appeal allowed;
2. Set aside the decision of Master Harrison of 27 June 2001;
3. Grant leave to the applicant to commence the proceedings out of time. 21 It is my view that, subject to any further argument, the costs of this application should be costs in the cause.

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