APPEALED FROM: Norris v McGeachy [2009] TASSC 110

Appeal and New Trial - Appeal - General principles - Interference with discretion of court below - In general - General principles - Functions of appellate court - Generally - Exercise of broad judicial discretion - Where no error of principle - Refusal of application to extend time.

Supreme Court Civil Procedure Act 1932 (Tas), s45(1).

Marr v Green (1993) 14 Tas R 317; Hill v Iluka Corporation Ltd [2002] TASSC 113, distinguished.

Limitation of Actions - Extension or postponement of limitation periods - Extension of time in personal injuries matters - Principles upon which discretion exercised - Writ filed out of time - Delay in applying for extension of time - Whether relevant.

Limitation Act 1974 (Tas), s5(3).

Judgment Number: [2010] TASFC 4

1 I agree with the reasons for judgment prepared by Blow J and would also dismiss the appeal.

2 This is an appeal from an order refusing an extension of time for the bringing of an action for damages for personal injuries. The appellant, Mr Norris, went drinking in Launceston on the night of Wednesday 3 November 2004. The night did not go well for him. He had an argument with his partner. In the early hours of Thursday 4 November he decided to walk back alone to her home in Trevallyn. He was walking on the roadway of the West Tamar Highway at about 3.30am when he was hit by a car driven by the respondent. He suffered serious injuries. The limitation period for the bringing of an action against the respondent for damages for those injuries was three years: Limitation Act 1974, s5(1). That limitation period expired in November 2007. The appellant sued for such damages by a writ that was filed on 2 October 2008. He subsequently applied under the Limitation Act, s5(3), for an order extending the time for the bringing of his action to the date of the filing of the writ. Crawford CJ heard that application and dismissed it: Norris v McGeachy [2009] TASSC 110. This is an appeal from that decision.

3 There are six grounds of appeal. Ground 2 involves a contention to the effect that the learned Chief Justice took into account an irrelevant consideration. The other grounds all involve contentions that his Honour attached too much or too little weight to various relevant matters. As is usual in such cases, his Honour considered the evidence before him as to the strength of the applicant's case, the reasons for his delay, and possible prejudice to the respondent. Before I address the grounds of appeal, it is appropriate to say a little about those matters.

4 The appellant suffered head injuries as a result of the collision. According to the evidence, he has no memory of it. The evidence as to what happened was contained in witness statements obtained by police officers. The learned Chief Justice concluded, on the basis of those statements, that the appellant had a prima facie case for damages based on negligent driving, but that contributory negligence was likely to be attributed to him. Those conclusions are not challenged in this appeal. I therefore need not say much about the circumstances of the collision. The respondent told the police that she was travelling in the left hand lane, in fifth gear, at about 60 - 65 kilometres per hour, with her lights on low beam, looking ahead, with a good view and a clear road, when something white hit the left side of her windscreen and she realised it was a pedestrian. The appellant said in an affidavit that he was tipsy. There is evidence that there was a footpath to his left side of the highway.

5 As I have said, the accident occurred on 4 November 2004. Some eight months later, on 21 July 2005, the appellant saw a legal practitioner, John Pedder, who was employed by a Launceston legal firm, Archer Bushby. He gave Mr Pedder instructions as to what he drank on the night in question, where he was going, his injuries, his surgical treatment, his employment before the accident, and the impact of his injuries. Over the next few months, Mr Pedder took a number of routine steps by way of investigating and preparing a claim for damages for personal injuries. These were catalogued by the learned Chief Justice in his reasons for judgment, and I see no need to descend into detail as to what was done. The Motor Accidents Insurance Board ("the Board") instructed the legal firm Dobson Mitchell & Allport to act for it in relation to the matter. There were discussions between the Board's solicitor and Mr Pedder. The Board's solicitor made a without prejudice offer to settle for $5,000. The acceptance of such an offer extinguishes any right to the payment of further scheduled benefits: Motor Accidents (Liabilities and Compensation) Act 1973, s27(3).

6 On 2 November 2005 Mr Pedder wrote to the appellant about his claim and the offer of settlement. He made some serious mistakes in the advice that he provided. It appears that the Board had paid a total of $156,142.51 by way of scheduled benefits at that point, comprising $150,650.81 for medical expenses and the like, and $5,501.70 as a disability allowance in consequence of the appellant's incapacity for work. As to the likely outcome of a damages claim, it was necessary to take into account the payments made by way of scheduled benefits and the likely impact of a finding of contributory negligence. When scheduled benefits have been paid, a finding of contributory negligence has been made, and damages are assessed, the judge must first assess damages as if all medical expenses and the like had been paid by the plaintiff, not the Board; then make a reduction to allow for contributory negligence; and then deduct the amount paid by the Board by way of scheduled benefits. If the balance after the reduction for contributory negligence is less than the amount paid by way of scheduled benefits, then the plaintiff will recover nothing, but will not have to pay any money to the Board by way of reimbursement. The Motor Accidents (Liabilities and Compensation) Act, s27(1), provides only that the payment of a scheduled benefit is to be taken to be a payment in or towards the discharge of a liability for damages. However Mr Pedder suggested in his letter that the appellant could end up owing the Board $26,588 if there was a 40 per cent reduction for contributory negligence, or $4,994 if there was a 30 per cent reduction. He also neglected to add in the expenditure paid by the Board in the first stage of his calculations. In his letter, he canvassed the possibility of further investigating the impact of the appellant's injuries on his capacity to earn an income, and the likelihood of future medical treatment. He concluded by saying, "... we would appreciate your advice as to whether you wish to proceed with this matter and obtain further medical evidence or consider the Board's offer."

7 On 4 November 2005 the appellant made two phone calls to a secretary in Mr Pedder's office. In the second of those calls he told her that he had decided to reject the offer of $5,000, not to issue proceedings, to have further medical assessments done, and to leave open the option of claiming further medical expenses by way of scheduled benefits. The learned Chief Justice made a finding that the appellant made a decision not to sue. That finding is not challenged in these proceedings.

8 The appellant was asked to confirm his instructions in writing, first by Mr Pedder's secretary in a phone call on 29 November 2005, and then by Mr Pedder in a letter of 2 December 2005. Mr Pedder wrote to the Board's solicitors on 27 January 2006 advising that the appellant did not wish to pursue a damages claim. The Board instructed its solicitors to close their file. They did that on 31 January 2006.

9 The appellant evidently did not ask Archer Bushby to do anything further for him. He did not pay their account. During 2007 they placed the account with a collection service, obtained a judgment, and commenced garnishee proceedings, but they recovered nothing.

10 The learned Chief Justice made a finding that Mr Pedder told the appellant during the attendance on 21 July 2005 that there was a basic three year limitation period, but commented that the appellant might have forgotten over the next two or three years that there was a primary limitation period of precisely three years.

11 The appellant first saw his present solicitor on 25 August 2008. There was no evidence explaining the delay between the decision not to commence proceedings in late 2005 and the date of that first consultation.

12 After the appellant saw his new solicitor on 25 August 2008, the following steps were taken:

•

Some five weeks later, on 2 October 2008, the writ was filed.

•

A statement of claim was filed on 13 October 2008.

•

A defence was filed on 27 October 2008. Not surprisingly, a defence under the Limitation Act, s5(1), was pleaded.

•

Over four months later, on 5 March 2009, the appellant's solicitors filed an application for an order extending time to the date of the filing of the writ. It was defective, in that it sought only an extension of time to serve the writ, not an extension of time for the filing of the writ.

•

On 4 May 2009 an amended interlocutory application was filed, seeking an extension of time for the filing of the writ.

13 On the morning of the accident, a police officer took a written statement from a motorist named Jesse Kim Harvie, who had been driving immediately behind the respondent. In March 2009 the Board's solicitors engaged a firm of enquiry agents to locate and speak to the witnesses. There was evidence that they tried to find Mr Harvie, and were unsuccessful. The learned Chief Justice took into account the fact that he could not be located. There was no other basis for the respondent to claim "specific prejudice".

14 His Honour also took into account the fact that, five years after the accident, the memories of witnesses had no doubt dimmed, and that there was a possibility of "indeterminable prejudice". He referred to Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 551.

Ground 1 - Delay before and after expiry of limitation period

"1 The learned Chief Justice erred in law by failing to differentiate the importance between delay occurring within the primary limitation period and delay occurring after the expiry of the primary limitation period."

16 Counsel for the appellant relied on comments made in Marr v Green (1993) 14 Tas R 317. In that case, Green CJ said the following at 319:

"Delay following the expiration of the limitation period is plainly more significant than such delay before the limitation period has expired. Further the primary enquiry relating to the period before the limitation period has expired should be directed to the specific issue of the reason for the applicant's failure to take proceedings in time - Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 435 - rather than the general issue of how diligently he pursued his claim during that period. The general issue of how diligently the applicant pursued his claim during the period before the limitation period expired would of course often be relevant to the determination of the issue of why proceedings were not commenced in time and may also be relevant to the issue of what notice the respondent had of the claim which in turn is relevant to the issue of prejudice but its relevance per se is limited."

"... I think that delay occurring after the expiration of any statutory time limit is likely to be of greater significance in most cases."

18 Underwood J (as he then was) dissented, without making any comment as to the relative significance of delay before the expiry of a limitation period and delay thereafter.

19 In this case the learned Chief Justice did not refer to Marr v Green, nor to the proposition that delay after the expiry of a limitation period is ordinarily more significant than delay beforehand. However it does not follow that he made any sort of error. He took into account the whole of the delay and the evidence, such as it was, as to the reasons for the delay. He observed in par[2] of his reasons that "the writ was filed about 11 months too late". There is no reason to think that he attached undue weight to the delay prior to the expiry of the limitation period. It is not necessary, whenever an application for an extension of time is determined, for the judge to recite, like a mantra, that delay following the expiration of the limitation period is ordinarily more significant than delay before the limitation period has expired. Ground 1 has no merit at all.

"2 The learned Chief Justice erred in law by taking into account delay between the commencement of the proceedings and the filing of an interlocutory application to extend time."

21 The learned Chief Justice listed seven reasons for concluding that the justice of the case required the refusal of the application for an extension of time. The sixth of those reasons read as follows:

"Although of little weight in all the circumstances of the case, no explanation was given for the delay between first instructing his [the appellant's] new legal practitioner on 25 August 2008 and making the application to extend time on 5 March 2009."

22 In his submissions relating to this ground, counsel for the appellant stated a number of uncontroversial propositions. A writ filed after the expiry of a limitation period is not a nullity. A defendant may choose not to plead a limitation defence. Such a defence is not available unless and until it is pleaded. See Robertson v Hobart Police & Citizens' Youth Club Inc [1982] Tas R 102. The availability of a limitation defence may be determined at the trial of the action: Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514. There is nothing inappropriate about filing a writ and seeking an extension of time by means of an interlocutory application, rather than seeking an extension of time by means of an originating application prior to the filing of a writ: Scott v Hazelwood [2001] TASSC 45; (2001) 10 Tas R 67. However it does not follow that a delay after the filing of a writ is irrelevant to the question of whether time should be extended.

23 It should be noted that the Limitation Act, s5(3), requires a judge, when determining an application for extension of time, to take into account "all the circumstances of the case". The subsection reads as follows:

"(3) Notwithstanding anything in the foregoing provisions of this section, upon application being made by the person claiming the damages referred to therein a judge, after hearing such of the persons likely to be affected by that application as he may think fit, may, if he thinks that in all the circumstances of the case it is just and reasonable so to do, extend the period limited for the bringing of the action for such period as he thinks necessary, but so that the period within which the action may be brought does not exceed a period of 6 years from the date on which the cause of action accrued."

24 Delays of several months between the filing of a writ and the filing or hearing of an application under s5(3) are most uncommon. Sometimes applications under s5(3) are made by means of originating applications. In such a case, a writ is often not filed unless and until time has been extended. When an interlocutory application is used to seek an extension of time, it is usually filed with the writ, and it is most uncommon for any significant delay to be incurred in preparing the application for hearing and having it determined. Counsel were unable to refer us to any authorities as to the relevance or irrelevance of a delay in applying for an extension of time after the filing of a writ.

25 The longer the disposition of a claim for damages is delayed, the less likely it is that the defendant will receive a fair trial. In Brisbane South Regional Health Authority v Taylor (above) at 553, McHugh J said the following (omitting references):

"It [a limitation period] represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. ... A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision ... is 'to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced'. But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action."

26 Delay between the filing of a writ and the making of an application for an extension of time could delay the disposition of a damages claim, and could therefore possibly cause or contribute to the sort of injustice that limitation provisions are intended to prevent. It must therefore be a relevant circumstance for the purposes of s5(3). Ground 2 must therefore fail.

Grounds 3 to 6 - Weight given to relevant factors

"3 The learned Chief Justice erred in law in giving the weight that he did to the possibility of prejudice to the respondent in that he found that both specific and indeterminable prejudice to the respondent was a possibility, however, made no finding that such prejudice constituted significant prejudice to the respondent nor that the respondent would be denied a fair trial by reason of such prejudice if an extension of time was granted.

4 The learned Chief Justice erred in law in giving the weight that he did to the appellant's failure to adequately explain the delay in commencing proceedings.

5 The learned Chief Justice erred in law in giving the weight that he did to the appellant's conscious decision not to sue and the communication of that fact to the respondent's solicitors, in that the learned Chief Justice failed to take into account or attribute appropriate weight to the fact that such decision was not a deliberate and informed decision by the appellant to allow the limitation period expire [sic].

6 The learned Chief Justice erred in law in failing to undertake a proper weighing and balancing process of the arguable case, delay, the reasons for the delay and prejudice to the respondent in order to determine if, in the circumstances, he was satisfied that it was just and reasonable to extend time for the appellant to bring the proceedings."

28 A decision to grant or refuse an extension of time under s5(3) is a discretionary decision. The circumstances in which appeals from discretionary decisions can succeed are limited by the Supreme Court Civil Procedure Act 1932, s45(1). That subsection reads as follows:

"(1) A Full Court, on the hearing of any appeal from any judgment, order, or other determination (whether final or otherwise) of a judge, shall not reverse or vary any adjudication of the judge which is, or purports to be, only the exercise of a discretion which the judge was entitled by law to exercise, unless it appears to the Full Court that -

(a) the judge has, in fact, declined or failed to exercise the discretion;

(b) the judge has proceeded on a wrong principle or otherwise contrary to law, or on irrelevant or insufficient materials, or has misapprehended the facts or has failed to consider any material fact;

(c) the adjudication is founded wholly or in part on an erroneous finding of fact or an erroneous determination in point of law; or

(d) by reason of further evidence received by the Full Court in exercise of the powers conferred by section 48, or some special circumstance, the adjudication should be reversed or varied."

29 Section 45(1) does not confer a general discretion to reverse a discretionary decision on the basis of the Full Court's views as to what is reasonable and just, nor to do so whenever the Full Court concludes that undue weight or insufficient weight has been given to a particular factor.

30 Counsel for the appellant submitted that a failure to undertake a proper weighing and balancing process is a legitimate ground of appeal that can lead to the Full Court finding appealable error. He relied for that proposition on Marr v Green (above) and Hill v Iluka Corporation Ltd [2002] TASSC 113. However those were both cases in which the Full Court identified errors within the scope of s45(1). For the reasons which follow, I think they must both be distinguished from the present case.

31 The appellant in Marr v Green contended that the primary judge in that case had afforded undue weight to the question of delay. At par[36] Wright J observed that the primary judge had said, "I consider the major consideration in exercising my discretion to be the question of delay." At par[41], his Honour concluded:

"In my opinion, notwithstanding his acknowledgement that delay is only one of the factors relevant to the exercise of discretion, the learned trial judge elevated it to a place of pre-eminence in his consideration of the case before him to the almost total exclusion of the other important elements which he needed to consider. In doing this, in my opinion, he fell into reviewable error and this Court should set aside the order which he made."

32 It is possible for a judge to attach so much weight, or so little weight, to a particular factor that he or she proceeds "on a wrong principle" within the meaning of s45(1)(b). In my view Marr v Green should be treated as a case in which the primary judge proceeded on a wrong principle by attaching undue weight to the delay on the part of the applicant.

33 The other member of the majority in that case, Green CJ, delivered a brief judgment in which he did not mention s45(1). At par[5], he said:

"With great respect I have concluded that the learned judge placed undue weight on the delays to which he had regard ... and that the exercise of the discretion should be set aside."

34 In my view that comment should be treated as a conclusion that the primary judge had gone so far in attaching undue weight to the delays that he had proceeded on a wrong principle.

35 Hill v Iluka Corporation was an appeal from a decision refusing an extension of time. It succeeded on a ground that alleged a failure "to undertake a weighing and balancing process of the arguable case, delay and prejudice ...". However it appears from the judgment of the Full Court, (Underwood and Evans JJ, and myself) that that ground of appeal succeeded because the court identified two errors within the scope of s45(1).

36 The primary judge in that case concluded that he was not persuaded that the delay on the part of the applicant had been satisfactorily explained. The Full Court considered the evidence and, at par[25], disagreed with that conclusion. At par[36] we said:

"We have come to the conclusion that the likelihood is that the learned primary judge placed too much weight upon the appellant's delay in commencing proceedings by categorising it as not satisfactorily explained with the consequential result that the exercise of the discretion miscarried."

37 The question whether the delay was satisfactorily explained involved a value judgment, but the primary judge's conclusion to the effect that it had not been satisfactorily explained amounted to a finding of fact. Since the Full Court came to the opposite conclusion, the conclusion of the primary judge should be regarded as "an erroneous finding of fact" within the meaning of s45(1)(c).

38 The Full Court in that case, at par[39], also identified an error within the scope of s45(1)(b). Paragraph [39] reads as follows:

"It appears that the learned primary judge did not consider the fact that all the matters of prejudice relied upon by the respondents were matters that arose well before 2000 when the appellant's medical condition worsened to a stage that made him decide to claim damages. His Honour thereby failed to consider a material fact, within the meaning of the Supreme Court Civil Procedure Act, s45(1)(b)."

39 The ground of appeal relating to the proper undertaking of the required balancing process succeeded only because (a) an erroneous finding of fact led to the primary judge attaching undue weight to the appellant's delay, and (b) the primary judge's failure to consider a material fact led him to attach undue weight to the prejudice suffered by the respondents as a result of the delay.

40 It is worth mentioning another recent case in which it was held that a judge proceeded on a wrong principle by attaching too little weight to particular matters, namely Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57. That case concerned an interlocutory injunction granted by a judge of this Court to restrain the publication of material that was alleged to be defamatory. Although the judges of the High Court did not focus on s45(1), the wording of the conclusions in the majority judgments is significant. At par[34] Gleeson CJ and Crennan J said:

"The primary judge, and the majority in the Full Court, erred in principle in two respects in their approach to the exercise of the discretionary power to grant an interlocutory injunction in the special circumstances of a defamation case. They failed to take proper account of the significance of the value of free speech in considering the question of prior restraint of publication, and they failed to take proper account of the possibility that, if publication occurred and was found to involve actionable defamation, only nominal damages might be awarded."

41 After reaching similar conclusions, Gummow and Hayne JJ said at par[90]:

"The upshot is that the majority of the Full Court erred in upholding the decision of the primary judge. That decision proceeded upon wrong principle."

42 In an appeal from a discretionary decision to which s45(1) applies, a ground of appeal asserting that a judge attached too much or too little weight to a particular factor or factors, or failed to undertake a proper weighing and balancing process, can only succeed if an error within the scope of s45(1) is identified. Such an error will occur if a judge attaches so much weight, or so little weight, to a particular factor or factors that it can be said that he or she has proceeded on a wrong principle within the meaning of s45(1)(b). It is also possible that the giving of too much or too little weight might be the result of some other identifiable s45(1) error, such as failing to consider a matter of fact. But, unless an error within the scope of s45(1) can be identified, the attaching of too much or too little weight to a particular factor or factors will not be a sufficient basis for a ground of appeal to succeed.

43 In this case, the learned Chief Justice undertook a thorough analysis of all the relevant facts. Grounds 3 to 6 do not involve any suggestion that he proceeded on irrelevant or insufficient materials, that he misapprehended the facts, that he failed to consider any material fact, that he made any erroneous finding of fact or determination in point of law, or that there is any special circumstance. In my view it cannot be said that he declined or failed to exercise the discretion conferred by s5(3), nor that he "proceeded on a wrong principle or otherwise contrary to law".

44 As I have said, his Honour listed seven reasons for concluding that the justice of the case required the appellant's application to be refused. Those seven reasons read as follows:

"1 He was made aware of the time limits in July 2005.

2 He made a conscious decision not to sue and on 4 November 2005 he communicated that decision to his legal practitioner.

3 On 27 January 2006, his legal practitioner formally advised the legal practitioner for the Board, which stood in the shoes of the defendant, that he had decided not to pursue a damages claim. The Board's legal practitioner then closed his file.

4 I infer that relying on that advice, nothing further was done by the Board or its legal practitioner to investigate or consider the plaintiff's common law claim until after his new legal practitioner wrote to the Board's legal practitioner on 15 September 2008 giving notice that there would be an investigation into 'a potential common law claim for damages'. By that time, the primary limitation period had expired about 10 months' earlier.

5 No explanation has been given by the plaintiff for the passage of time that elapsed between instructing his legal practitioner on 4 November 2005 that he would not sue and consulting another legal practitioner nearly three years' later, notwithstanding that he was aware of time limits.

6 Although of little weight in all the circumstances of the case, no explanation was given for the delay between first instructing his new legal practitioner on 25 August 2008 and making the application to extend time on 5 March 2009.

7 There is a possibility that the defendant has suffered prejudice because the witness, Jesse Harvie, cannot be located, and other indeterminable prejudice because of the passage of time."

45 Clearly the learned Chief Justice did not elevate any factor to a position of pre-eminence and thus proceed upon a wrong principle. Nor did he attach insufficient weight to any particular factor and thereby proceed upon a wrong principle.

46 Ground 3 contains a complaint as to the weight given to "the possibility of prejudice to the respondent". It relates to item 7 in the list of reasons quoted above. Ground 3 correctly observes that his Honour "made no finding that such prejudice constituted significant prejudice to the respondent nor that the respondent would be denied a fair trial by reason of such prejudice". There was no reason for the possibility of prejudice to be ignored altogether. His Honour was obliged by s5(3) to take into account "all the circumstances of the case", and one of those circumstances was a possibility of prejudice. It has not been demonstrated that he made any error within the scope of s45(1) in the weight that he gave to the possibility of prejudice.

47 Ground 4 involves a complaint as to the weight given to the appellant's failure to adequately explain his delay in commencing proceedings. No error within the scope of s45(1) has been demonstrated as to that.

48 Ground 5 concerns the appellant's decision not to sue. Counsel for the appellant made submissions to the effect that the learned Chief Justice should have given that decision less weight than he did because the decision was based on erroneous and inadequate advice, because it was made without a full appreciation of all the relevant evidence and circumstances, and because the appellant did not need to make a final decision whether or not to sue at that time, and remained entitled to commence proceedings until the three-year limitation period expired. Once again, there is no reason to think that the learned Chief Justice made any error as to the facts, and there is no reason to conclude that he proceeded upon a wrong principle.

49 Ground 6 relates to the weighing and balancing process as a whole. Once again, it has not been demonstrated that the learned Chief Justice proceeded upon a wrong principle, nor that he made any error within the scope of s45(1).

50 For the reasons stated above, I would dismiss the appeal.

51 I have had the opportunity to read the draft reasons of Blow J. I agree with those reasons and would also dismiss the appeal.