application for leave to extend time for commencement of proceedings pursuant to s 109 MACA
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Catchwords
application for leave to extend time for commencement of proceedings pursuant to s 109 MACA
Judgment (2 paragraphs)
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Judgment
Following my having indicated the result, the parties stated that they required reasons in short form only.
By summons the plaintiff proceeds for leave to commence proceedings out of time pursuant to s 109(3) Motor Accidents Compensation Act 1999 (NSW) hereafter referred to as 'MACA'. On 10 July 2010 the plaintiff was seriously injured. There is no issue that the injury occurred.
Having been born on 3 September 1949 in Croatia and having emigrated to Australia in 1972, the plaintiff, who was a qualified glazier in his own country, was working as a roofing plumber for Regent Metal Roofing Pty Ltd at the time of his injury. In very short compass so far as is necessary for these short reasons, the plaintiff was working with Mr Dinko Petesic at the time of his injury. Mr Petesic was the owner of the defendant company, the plaintiff's employer. Mr Petesic was driving a large forklift truck. He was conveying a large drill bit on the tines and the plaintiff was working in the vicinity of its front end assisting in the carriage when the large piece on the tines may have moved. The specific circumstances are not particularly relevant.
There is no issue that the plaintiff would, if granted leave, be entitled to proceed under the MACA. In any event, the metal front of the fork lift came into contact with the leg of the plaintiff pushing him over, causing him very serious injuries. He has been unable to work since then. He is now 69 years of age.
The incident came without delay to the notice of the workers compensation insurer. The workers compensation insurer in fact defends these MACA proceedings. Entitlement to bring these proceedings is under s 3B of the MACA.
The plaintiff was discharged from Westmead Hospital on 31 August 2010 and first instructed solicitors, without unreasonable delay, on 24 November 2010. Those solicitors were Messrs Thomas Booler & Co. After Messrs Thomas Booler & Co the plaintiff was represented by Bannister Law. Bannister Law was consumed by Slater and Gordon, which then had carriage of his claim. Most recently the plaintiff moved to his present solicitors, Messrs Firth. In a summary statement the plaintiff has always retained solicitors.
A claim form under the MACA was not lodged until 10 September 2015. A certificate under s 92 of MACA exempting the claim from the CARS regime was issued 27 August 2018. Pursuant to s 108(1)(a) of the MACA it was only then that the plaintiff was entitled to commence court proceedings. The summons, now being determined, was filed 24 September 2018. The time pursuant to which delay is to be measured ceased to run on the lodgement of the CARS 2A application on 6 July 2018. Accordingly the three year limitation period in this case was significantly exceeded. The delay was literally close to eight years, that is, five years beyond time. The defendant properly directs the Court to focus on the fact that it is indeed the whole of that period, not just the five years which is the delay, the subject of the inquiry.
The defendant concedes that there has been no lack of activity in prosecution of the matter by the plaintiff's current solicitors, Messrs Firths, who were first instructed on 26 March 2018. The defendant ultimately conceded no actual prejudice has been caused through the delay. This concession is appropriately made in the circumstances of the claim having been notified and processed through the workers compensation regime since soon after the incident and in circumstances in which Mr Petesic was able to provide a statement. The defendant properly refers to Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 principles of inferred prejudice. No doubt there is prejudice to be inferred in consequence of such a long delay. It is inevitable that some prejudice evolves through the passage of such time. That is said in the circumstances of the claim having been prosecuted through the workers compensation process as I have mentioned and Mr Petesic being available.
Although there might not be as perfect or ideal a trial as had the plaintiff immediately commenced his claim under the MACA, in my view the prejudice inferred is not such as would deny a fair trial. In this regard I refer to the principle as stated by McColl JA in Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 at 183 recently restated in Gower v State of NSW [2018] NSWCA 132 at 191.
The defendant and the plaintiff traversed the issue of full and satisfactory explanation. The defendant cross‑examined the plaintiff. About 1,000 to 1,200 pages of documentation was initially to be read into evidence with affidavits particularly of Mr Firth. The bulk of that documentation was in exhibits SPF1 and exhibit 1 to his affidavits; otherwise the plaintiff relies upon his own affidavit made 21 September 2018.
In my view it is significant in the consideration of the requirement under s 66(2) MACA that the fullness of the explanation provided has included affidavits of all solicitors with significant carriage of the matter from the time of him first instructing Messrs Thomas Booler & Co through to Messrs Firth. In none of that affidavit material is there one word providing evidence that the plaintiff was informed of the three year limitation period for commencing proceedings under MACA. Indeed, it was not until February 2013 that he was even alerted to the opportunity of damages under MACA. Prior to that his solicitors, in whom he placed his trust, had only proceeded on the basis of workers compensation and even after the February 2013 instructions, within Messrs Slater and Gordon it was a further seven months before the MACA claim form was lodged.
The defendant set out properly to test the fullness of that explanation and drew the Court's attention to the recent decision of New South Wales Court of Appeal in Nominal Defendant v Browne [2013] NSWCA 197. In my view this case is to be distinguished from Nominal Defendant v Browne because whereas there a plaintiff had avoided providing evidence of advice given by solicitors and by counsel; here, the plaintiff has produced as exhibits or annexures to affidavits all files of all solicitors who have represented him over the intervening time such as he has been able to acquire through subpoena, or inquiry made by his solicitors Messrs Firths. Indeed in relation to Messrs Thomas Booler & Co, the evidence of Mr Firth is that inquiry had to go so far as to threaten the issue of a warrant on a failure to produce on subpoena.
The defendant has had access to that documentation. On day 2, counsel elected to proceed on the efficient basis that I would be referred specifically the relevant documents. I repeat, there is nothing to which I have been referred which mentions the three year limitation period; nor is there one word to suggest that prior to 13 February 2015 the entitlement to a MACA compensation action had ever been raised with the plaintiff.
I am fortified in this position both by the parties having expressly, ultimately not required me to read any of the documents in exhibit SPF1 or in exhibit 1 to the affidavits of Mr Firth, and by the defendant, with frankness, referring me to paragraph 11 of the affidavit of Mr Firth made 14 November 2018 in which he states that his investigation of the whole of that material found no advice given in regard to the limitation period for the bringing of a MACA claim.
The defendant did not put to the plaintiff in cross‑examination that he had received advice of the three year limitation period. The plaintiff was an unsophisticated witness with an apparently poor recollection. He was unable to recall specifically what he had been advised from time to time. As I say, this case is not like that of the Nominal Defendant v Browne because here the objective evidence of the work performed by those solicitors was available, both by their affidavits and by exposition of the documents in their files.
I did not find the plaintiff to be a witness of immaculate credit. In a very fair and patient cross‑examination the plaintiff presented as an unsophisticated person who appeared to have some difficulty with the level of understanding and use of the English language required for the efficient giving of evidence in a court room.
Counsel for the defendant received repeated answers from the plaintiff of a fashion indicating he had little recollection of the affidavit which he made of 21 September 2018. That evidence caused me to direct some caution to acceptance of the plaintiff's evidence because at the commencement of his evidence‑in‑chief when I asked him if he recognised the affidavit he said that he did. When he was re‑examined by his barrister about it he said everything in it was true. That seemed to be a different level of recollection than that which he gave the benefit of to questions asked in cross‑examination.
It is with the exercise of that caution that I am still satisfied that the explanation was full because the evidence was overwhelming. None of the solicitors who had carriage of his matter were required for cross‑examination. It can be assumed that solicitors with the carriage of his matter over time have given full and frank evidence by affidavit. None of them stated anything about giving advice toward the bringing of the motor accidents compensation claim, or as to time limits in the motor accidents compensation claim other than that to which I have already referred.
Overall the plaintiff's evidence is acceptable on the core issues of full and satisfactory explanation. This is particularly so because of its consistency with that other independent evidence. In particular, I refer to paragraphs 17, 22 and 23 of the plaintiff's affidavit made 21 September 2018, and I accept that it was not until in conference with his solicitor, Mr Firth, that he was alerted to the limitation period of three years under the MACA s 109. He was then advised that his claim form had been lodged over four years late and proceedings should have been commenced nearly five years before.
That brings me to the question of whether or not the explanation was satisfactory within the meaning of MACA s 66(2). As has been most recently stated in the case of Hunter v Roberts [2019] NSWCA 116 when addressing the evaluative judgment of satisfactoriness of the explanation, the Court is to consider the hypothetical reasonable plaintiff. In this case, the circumstances are of an unsophisticated man, not learned in the law; indeed with some significant degree of compromised ability to read which was evident in the witness box when he was shown his affidavit, and in his use of the English language. He was prudent enough as to bring his serious injury to the notice of solicitors who directed him to what appeared to be the very logical course, pursuing workers compensation. It was reasonable for him to understand that his rights were being protected and pursued because his medical treatment was paid for and his workers compensation payments were made until his age of 66 pursuant to that legislation. He put his trust in those solicitors. He has not sat on his hands. The evidence shows that not only by change of firm but also by inquiry of his solicitors, he was an attentive and responsible litigant. He readily conceded that on 13 February 2015 his opportunity to proceed for damages on a motor accident based claim was advised to him by Mr Clarke, an in‑house solicitor and advisor of Messrs Slater and Gordon.
In those circumstances in my view the hypothetical reasonable plaintiff is not expected to be aware of the three year limitation period or that his case was from its outset, if properly prosecuted, not just a workers' compensation claim but a MACA claim. The regimes under these policies of statutory insurance are for the reasonable person complex and are well serviced by competent legal advice. I repeat, the whole of the evidence is that in this case he did not receive the advice and therefore was not aware of the three year limitation period. I consider in the circumstances that to be a full and reasonable explanation. There will be a grant of leave.
I have heard from the parties in relation to costs. I have been critical of both parties for what I considered to be a failure before the commencement of the proceedings to engage in a productive discussion to limit the volume of evidence in documentary form as produced by the solicitors' files and from the course of the workers compensation process in those files. That efficiency of conduct of the application by identification of the truly relevant documentation was not successfully arranged until after the first day of the hearing.
The second day permitted no court time whilst that narrowing of documentation to be considered of the Court was achieved. As I have said; in the end, no documents in exhibit SPF1 being the exhibit to the affidavit of Mr Firth of 18 September 2018, or exhibit 1, to the affidavit of Mr Firth of 14 November 2018, were relied on in evidence. Likewise, very limited documentation, perhaps a page or two annexed to other affidavits, of which there were several, were required to be read. There was some waste of time.
In my view that waste of time, in one sense can be suggested to have fallen from the approach of the defendant in that the defendant raised a question of full explanation even though it had the benefit of the affidavits of solicitors with conduct of the plaintiff's claim for about half a year. In another sense it is the plaintiff who seeks indulgence of the Court by the summons in prosecuting the issue and it is the plaintiff who ought have raised with the defendant and sought for there to be a narrowing of the documentation required to be put into evidence. This does not appear to have occurred until the matter was already before the Court. In particular I have been critical of the parties because of the estimate which they gave the List Judge that this matter would not take as much as three hours when it came before him on Monday 20 May 2019.
In those circumstances I propose to award the plaintiff some costs relief.
The orders I make are:
1. I grant leave pursuant to s 109(1) and (3) of the Motor Accidents Compensation Act (1999) for the plaintiff to commence proceedings out of time by the filing and service of a Statement of Claim in the form of the Proposed Statement of Claim being Exhibit D;
2. One third of the costs of the summons, including preparation of Exhibit SPF1 to the affidavit of Mr Firth made 18 September 2018 and Exhibit 1 to the affidavit of Mr Firth made 14 November 2018, to be the plaintiff's costs in the cause in the principal proceedings;
3. I vacate the admission into evidence of Exhibit SPF1 to the affidavit of Mr Firth made 18 September 2018, and Exhibit 1 to the affidavit of Mr Firth made 14 November 2019; and
4. I return the exhibits.
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Decision last updated: 02 July 2019