GRANT v. RAFFERTY [2001] NSWCA 244

COUNSEL : N.J. Polin/Ms. J. Fredman (Appellant) W.R. Ward (Respondent) SOLICITORS : Sparke Helmore (Appellant) Doran Roberts & Co., (Liverpool) (Respondent) CATCHWORDS : LIMITATION OF ACTIONS - Motor vehicle accident - Leave to commence proceedings out of time - Application for - Repeated applications for - Four applications dismissed - Fifth application based on same evidence as third and fourth application - Abuse of processs D DECISION : Appeal upheld; Order for leave set aside

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40759/99 DC 4869/99 POWELL JA FOSTER AJA

JUDGMENT 1 POWELL JA: The Appellant appeals, by leave, from a Judgment delivered, and an Order made, by Christie DCJ in the District Court at Sydney on 8 September 1999. 2 On that day his Honour, on the application of the Respondent, ordered that leave be granted to file a Statement of Claim seeking to recover from the Appellant damages in respect of injuries which he claimed to have sustained in a motor accident which occurred on 5 December 1993 when the motor vehicle driven by the then Respondent collided with the motor cycle then being ridden by the then applicant. 3 The need for leave to be granted for the filing of that Statement of Claim was brought about by the provisions of s 52(4) of the Motor Accidents Act 1988 ("the Act") as they were in 1993. That section, it is to be recalled, provided that no proceedings might be commenced more than three years after the expiration of the period for giving a notice of claim in respect of such an accident, that period then being six months after the date of the accident, it following that the time for commencing proceedings without leave had expired in early June 1997. 4 The ground upon which the present appeal is brought is, effectively, that Christie DCJ misdirected himself as to the approach that it was proper to be taken to the application which was then before him. The basis upon which that ground is supported is best illustrated by the history of what had occurred after the accident. 5 The Respondent, sought legal advice on 31 January 1994 from a Mr Roberts, whose firm then carried on practice at Liverpool. For some reason - apparently because Mr Roberts thought at the time that the Respondent's injuries were not such as would carry him past the threshold provided for in the Act - no notice of claim was given within the six months following the accident; in fact, no notice of the claim was given to the Appellant's insurers until 9 February 1995. 6 In late April 1995 the Respondent was examined by medical practitioners retained on behalf of the Appellant's insurer and, on 8 June 1995, the Appellant's insurer advised Mr Roberts that the insurer admitted, on behalf of the Appellant, a breach of duty leading to the accident in question. 7 Apparently because Mr Roberts hoped to enter into negotiations to settle the Respondent's claim, nothing further seems to have been done until 14 March 1996 when counsel was briefed on behalf of the Respondent to advise and to draft a Statement of Claim for filing in the District Court - that Statement of Claim was received by Mr Roberts on 30 April 1996. 8 Nothing further was done to prosecute the Respondent's claim for the better part of two years thereafter, that inaction, so it now appears (Affidavit D.P. Roberts sworn 7 October 1998 - CAB 59-60) was due to the fact that, as the result of rearrangements which had taken place within Mr Roberts' office, the file had become mislaid, a fact which apparently was not noticed at all for the better part of that two years. 9 On 5 March 1997, that is, three months prior to the expiration of the time within which proceedings could have been commenced without leave on behalf of the Respondent, the Appellant's insurer wrote to Mr Roberts noting that there had been action taken and advising that as it appeared that the Respondent no longer intended to pursue his claim the insurer had closed its file - Mr. Roberts seems to suggest either that the letter was never received, or that it was misfiled, in his office, but that, in any event, it was never brought to his attention. 10 The file in Mr Roberts' office appears to have come to the attention of Mr Roberts in January 1998. After that occured, and after Mr Roberts had communicated with the Respondent with a view to ascertaining whether he wished to pursue his claim, on 17 February 1998 there was filed in the District Court at Parramatta, a Notice of Motion (CAB 24) made returnable before the court on 27 April 1998, seeking leave to commence proceedings against the Appellant. 11 The only material filed in support of that Notice of Motion was a very brief, and not very informative Affidavit sworn by Mr Roberts, the only explanation for any delay being given being found in two paragraphs of that Affidavit which were as follows (CAB 25): "4. My office sought the filing fee from the plaintiff and unfortunately in this process the file was misplaced within the office.

5. That file has only recently come to light and the critical date for section 52 of the Motor Accidents Act expired late last year." 12 It is hardly surprising that when that Notice of Motion came before Robison DCJ, the then judge appointed to hear civil matters at Parramatta, on 27 April 1998, his Honour expressed the view, particularly in the light of an affidavit which had been filed on behalf of the Appellant's insurer, that the material was thoroughly inadequate, an observation which led counsel then appearing for the Respondent to seek leave to withdraw the Notice of Motion, to which application his Honour acceded and ordered that the Respondent pay the Appellant's costs of the motion. 13 A further Notice of Motion (CAB 38) was filed on 14 August 1998, that Notice of Motion being made returnable on 28 September 1998. 14 On this occasion there were filed two Affidavits, a short Affidavit by the Respondent (CAB 40) in which he indicated that although it had always been his wish that the proceedings be prosecuted he had had financial difficulties in funding the proceedings until then comparatively recently, and a further Affidavit by Mr Roberts, which Affidavit contained rather more extensive material than had been filed on the previous occasion and provided a little, but not much more, information as to the reasons for the delay. Thus, that Affidavit contained the following (CAB 44): "12. In September 1996, there were letters sent to the treating doctors of the plaintiff and it would seem that about this time the file was misplaced within our office.

13. Early this year the file was brought to my attention and I immediately sought the advice of counsel on what steps should be taken. A Motion was filed on 17 February 1998 for hearing on 27 April 1998.

14. On 27 April 1998 counsel withdrew the Motion as he had reached the view that the affidavit material therein did not provide a full and satisfactory explanation within the meaning of the Motor Accidents Act." 15 The Notice of Motion came before Robison DCJ on 28 September 1998, on which day his Honour delivered a Judgment in which he expressed the view that there was still not an adequate explanation for the delay which had occurred and, having done so dismissed the Motion with costs. 16 Yet a further Notice of Motion (CAB 52) was filed on behalf of the Respondent on 16 October 1998, that Notice of Motion being made returnable on 9 November 1998. 17 That Notice of Motion was supported by a further Affidavit by the Respondent and a more detailed Affidavit by Mr Roberts in which Affidavit he set out in some eight paragraphs (CAB 59-60) what had occurred in the second half of 1996 which led ultimately to the file being misplaced and what it was which, in early 1998, led to the file being rediscovered. 18 That application came Judge Robison DCJ on 9 November 1998, as also did some form of counter Notice of Motion which had been filed on behalf of the Appellant. His Honour delivered a Judgment in the course of which he said (CAB 65): "Again, having considered all of this, the view that I have formed is that on the affidavit material relied upon in this application, I accept that there is further information and detail concerning the circumstances of the loss of the file. I accept that that is now evidence before me. I also accept that the plaintiff wishes to proceed with his claim, but it would appear to me, having regard to all of the documents, that the test of a material change of circumstances on this information has not been made out. And accordingly, the application filed by the plaintiff must fail."

That being so, his Honour dismissed the application and made the order or orders sought in the Notice of Motion that had been filed on behalf of the Appellant. 19 It may be argued that the approach taken by Robison DCJ on that occasion was in error. However, no application for leave to appeal from his Honour's judgment was then made. That, so we have been informed today by Mr W.R. Ward, who appears for the Respondent, was due to the Respondent's financial position and his inability to meet the cost of mounting in this Court an application for leave to appeal and, if leave to appeal be granted, an appeal from Robison DCJ's judgment. 20 Instead of an appeal being lodged yet a further Notice of Motion was filed in the District Court on 3 March 1999, that notice of motion being made returnable on 29 March 1999. 21 On the latter day, the Notice of Motion came before Gibb DCJ, who seems at the time, to have been taking the civil list in Parramatta. The material that was before her Honour was effectively the material that had been before Robison DCJ on the previous occasion, with some small amount of updating material. 22 It is clear from her Honour's observations in the course of the hearing before her that her Honour was concerned that the application which had been made was inappropriate. That this was so appears from the transcript of the proceedings on that day where her Honour said (T.1): "Why am I not, in effect, sitting as an appeal court from the decision by his Honour Judge Robison to refuse leave?"

and, later, during the course of her reading the Affidavits which had been provided, where she said (T.3): "Yes thank you I am reading it Mr Woods (sic). I'm trying to find out how it helps me dealing with an application which has been dealt with on precisely the same material by a previous judge of this Court. I see nothing in the facts before me that have changed."

23 In the result, her Honour decided that it was quite inappropriate for her to entertain the application and made the following Orders (CAB 23): 1. Dismiss the applicant's motion. 2. Order the applicant to pay the Respondent's costs of the motion on an indemnity basis. 3. Stay the costs order for 28 days. 4. Direct that the transcript of proceedings of today + copies of affidavits + be referred to the President of the Law Society for disciplinary investigation of conduct of proceedings by the former solicitor, Mr. Dai Peter Roberts. As disclosed in his affidavit dated 17 February 1997." 24 Undeterred, however, the new solicitors who were then retained by the Respondent, on 26 June 1999 filed a further Notice of Motion - but on this occasion in the Sydney registry rather than in the Parramatta registry of the Court - seeking orders of the type which had been sought in each of the previous Notices of Motion which had been filed in Parramatta. That Notice of Motion was supported by Affidavits which were virtually identical with those which had been filed in respect of the application last dealt with by Robison DCJ and that thereafter dealt with by Gibb DCJ. 25 Although Mr. Ward sought to persuade us that the filing of this Notice of Motion in the Sydney registry of the Court did not involve an attempt at "Judge - Shopping", enough was said to make it tolerably plain that the Respondent's then advisers appreciated that if the Notice of Motion had been filed in the Parramatta registry of the Court, the prospects of its succeeding would have been remote, indeed. 26 As I have earlier recorded, the application came before Christie DCJ on 8 September 1999. It is clear from his judgment that, when it did so, objection was taken on behalf of the Appellant to his Honour dealing with the application for, at the outset of his Honour's Judgment, he said (RAB 12): "... my attention was drawn to a number of decisions as to what view a court should take in exercising its discretion in favour of an applicant who has previously been unsuccessful and those decisions, to which I shall shortly briefly refer, really confirm no more than that which is well known that to succeed on an application or a subsequent application it is at least usual to be in a position to advance something that was not perhaps before the previous judges who dealt with it."

27 This notwithstanding, as I read his Judgment, his Honour did not proceed upon that basis. His Honour appears to have taken the view that each of Robison DCJ and Gibb DCJ erred in not acceding to the application, in the case of Robison DCJ, which he dealt with in November 1998, and, in the case of Gibb DCJ, which she had dealt with, and that having been so it was open to him, notwithstanding the views expressed by each of Robison DCJ and Gibb DCJ, to exercise his discretion based on his independent view of the materials which had earlier been dealt with by them. Thus, his Honour said (RAB 19-20): "I do not say it is the best explanation in the world but I am marginally satisfied - and I realise that I do not actually have a reputation for being satisfied too easily - I am marginally satisfied that the plaintiff is entitled to an exercise of discretion.

I am mildly surprised that that discretion was not exercised by Robison J in November but I do not know for what reasons his Honour rejected it. It may be that he rejected it because it could have been available on the first application. I acknowledge that it could have been. But in these circumstances I propose to exercise my discretion and to forgive, if that be the correct expression, that particular aspect of the matter.

In my view, the plaintiff ought be granted leave pursuant to s 42(4) (sic) provided that the Statement of Claim be filed and served within fourteen days from today's date."

28 With respect, it seems to me that Christie DCJ misdirected himself. This was a case such as was adverted to in the recent decision of this Court in Nominal Defendant v Manning ((2000) 50 NSWLR 139, that is, a case in which the repeated applications, made on the basis of identical material, constituted, an abuse of process, it following that the application should have been dismissed. 29 This is a conclusion which I have come to with some regret. One appreciates the difficulties which face a litigant whose financial position is not strong but such difficulties as do justify the making of repeated applications which constitute an abuse of process instead of what would have been the appropriate remedy, namely, an application for leave to appeal from the Judgment of Robison DCJ in November 1998 or the Judgment of Gibb DCJ in March 1999, and, if that leave had been granted, an appeal. 30 I would propose that the appeal be upheld, the orders made by Christie DCJ set aside, the application dealt with by Christie DCJ dismissed with costs, and the Respondent ordered to pay the Appellant's costs of the appeal but, if qualified, to have a certificate under the Suitor's Fund Act.

31 FOSTER AJA: I agree. I simply add the following. The case of Nominal Defendant v Manning, which was decided by this Court after the decision of Judge Christie, now the subject of this appeal, provides, in my view, no warrant at all for the bringing of multiple interlocutory applications based upon the same facts. 32 In my view, it decides no more than that it is not necessarily an abuse of process to bring a second interlocutory application where a previous one has failed in circumstances where the second application is supported by evidence which could have been included in the first application if due diligence had been exercised. 33 The case does not provide in any way retrospective authority for the course taken by his Honour Judge Christie in the present case. 34 I agree with the orders proposed.

35 POWELL AJA: The orders of the Court are thus those that are proposed. **********

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