Smith v. Morton [2004] NSWCA 84

Court of Appeal (NSW)|2004-03-11|Before: Giles JA, Hodgson JA, Handley JA

CITATION : Smith v. Morton [2004] NSWCA 84 revised - 26/03/2004 HEARING DATE(S) : 11 March 2004 JUDGMENT DATE : 25 March 2004

JUDGMENT OF : Giles JA at 1; Hodgson JA at 8; Stein AJA at 52 DECISION : 1. Leave to appeal granted. 2. Claimant to file Notice of Appeal within 14 days. 3. Appeal allowed. 4.Judgment below set aside, and leave under s.52(4) refused, with costs. 5. Opponent to pay claimant's costs of the application and appeal, and to have a certificate under the Suitors Fund Act if otherwise qualified.

CATCHWORDS : LIMITATION OF ACTIONS - Motor accidents - Extension of time - Loss of evidence - Whether fair trial likely - Onus of proof - Relevance of prima facie weakness of plaintiff's case - Relevance of alternative remedy LEGISLATION CITED : Motor Accidents Act 1988 s.52(4) Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541 Henricks v. Agnew (1997) 26 MVR 277 Holt v. Wynter (2000) 49 NSWLR 128 CASES CITED : House v. The King (1936) 55 CLR 499 McLean v. Sydney Water Corporation [2001] NSWCA 122 Salido v. Nominal Defendant (1993) 32 NSWLR 524 Sieb v. Morton [2000] NSWCA 139 PARTIES : Trevor George Smith - claimant Graham William Morton - opponent FILE NUMBER(S) : CA 40101/03 COUNSEL : Mr. A.C. Bridge SC with Mr. P. Gow for claimant Ms. A. Katzman SC with Ms. S. Thode for opponent SOLICITORS : Hunt & Hunt, Sydney for claimant Gary Robb & Associates for opponent

LOWER COURT District Court JURISDICTION : LOWER COURT DC 8297/00 FILE NUMBER(S) : LOWER COURT O'Reilly DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40101/03 DC 8297/00

GILES JA HODGSON JA STEIN AJA

Thursday 25 March 2004 SMITH V. MORTON Judgment 1 GILES JA: I have had the advantage of reading the reasons of Hodgson JA in draft. Subject to what follows, I agree with them. 2 I respectfully differ from Hodgson JA's opinion that material error is not indicated by what the judge said concerning the alterations to the truck. 3 The alterations to the truck, in fact to the trailer also in that it was stripped of usable parts and left standing derelict in a paddock, plainly prejudiced the claimant in depriving him of the ability to lead expert evidence as to the occurrence of mechanical failure. Evidence to the effect that the claimant once was able, but thereafter was not able, to lead material expert evidence was not required in the application. The judge's response was only that the tow ball, which he described as "obviously fractured" was still available and could be subject to metallurgical testing. First, mechanical failure was not confined to the metallurgy of the tow ball. Secondly, although photographs of the tow ball make the judge's description understandable there was evidence that the tow ball had been "cut from the draw bar by an acetylene torch", underlining that mechanical failure was not confined to the metallurgy of the tow ball. The judge's response was inadequate, and amounted to proceeding on a wrong view of the facts. 4 Although the alterations to the truck had probably occurred within months of the accident, the prejudice to the claimant was nonetheless to be taken into account in determining whether there could be a fair trial. See Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 548-9, 554-5, and as an illustration Henricks v Agnew (1997) 26 MVR 277 in which the lost opportunity to medically examine the plaintiff before further injury some eight months later was the foundation for inability to have a fair trial. The observation by Handley JA in Seib v Morton [2000] NSWCA 139 at [52], that the loss of an opportunity to have the medical issues investigated at a comparatively early stage within the limitation period "cannot fairly be treated as prejudice flowing from an extension of the period", is not to the contrary of this, his Honour's point being that the defendant had had and exercised that opportunity. 5 The alterations to the truck, in the present context of extension of an expired limitation period, were material to whether there could be a fair trial and weighed against the opponent. 6 The opponent's case is very weak. The claimant, in reality his insurer, will in my view be significantly prejudiced in the conduct of his defence. The prejudice is not diminished by the weakness of the opponent's case. I recognise that the opponent commenced proceedings about six months before the expiry of the limitation period, and lost the benefit of those proceedings for what could be seen as a procedural error. There was nonetheless a window of some weeks in which the opponent could have commenced his fresh proceedings within time, and he allowed himself to fall into the position in which he required a favourable exercise of discretion to extend the limitation period. In re-exercising the discretion, I am not persuaded that it would be fair and just to extend the limitation period. 7 I agree with the orders proposed by Hodgson JA. 8 HODGSON JA: On 10 February 2003, pursuant to s.52(4) of the Motor Accidents Act 1988, O'Reilly DCJ granted leave to the opponent to commence proceedings against the claimant. The claimant seeks leave to appeal from that decision. The leave application has been argued on the basis that, if leave is granted, the appeal will be determined without further argument.

CIRCUMSTANCES 9 The opponent's claim arises from an accident that occurred on 9 November 1998, in which a truck he was driving on the Hume Highway at Catherine Hill turned over, together with the trailer it was pulling. 10 The opponent was taken to hospital by ambulance, and later the same day, at the hospital, gave the following account to a police constable: … stated that he was travelling north when he started come upon the rear of a utility which was travelling at a slower speed than himself. He has pulled out from lane 1 into lane 2 to pass the utility, but has noticed that the handling of the rear of his truck was not right. It felt like the trailer was being pulled long (sic) by only the two safety chains. The driver has then pulled the vehicle back into lane 1 and started to slow when he has felt the trailer force the rear of his vehicle around so he tried to counter steer. The truck has then crossed over lane 2 at about 45 degree angle and onto the grass area between the north and south bound lanes. He felt the rear of the truck lift off the ground and start to roll over. 11 In the police computer entry concerning the accident, the claimant is referred to as a witness. He was interviewed by police at the scene, and the note of that interview in the police notebook was as follows: At about 5am I was travelling north along the Hume Highway. I was about 100 hundred metres in front of the truck. I heard a screech of brakes and tyres along with the sound of metal. I looked in my rear vision mirror and saw the truck's lights rolling over a number of times. We were doing about 80 kph. The truck was originally in the left lane. I saw the whole truck heading in a cross direction over the lanes towards the centre. It was drizzling at the time. 12 It appears that, within six months of the accident, the opponent served a claim under the Motor Accidents Act on NRMA Insurance, as insurer for the Nominal Defendant. This claim was not put into evidence before the primary judge, or before us. However, the basis for a claim of negligence against the nominal defendant may be as set out in a letter dated 7 May 1999 from the opponent's solicitors to the police department referring to: An unidentified motor vehicle travelling at a low speed in the same lane in which our client was travelling, without tail lights on, thereby causing our client to come upon the vehicle suddenly and having to brake to avoid a collision. 13 On 20 October 2000, a Statement of Claim was filed in the District Court by the opponent against the Nominal Defendant and the claimant, presumably on the basis that the opponent's vehicle might be the vehicle alleged to have caused the accident in the manner set out in the letter to the police department. There is no copy of that Statement of Claim placed before us. 14 This Statement of Claim was apparently served on NRMA Insurance, but not at that time on the claimant or his insurers. Solicitors for NRMA Insurance retained an investigator to interview the claimant, and such an interview took place on 10 April 2001, and was audio-taped. This investigator included a report of this interview in his report to the solicitors for NRMA Insurance dated 4 May 2001. In that interview, the claimant denied inter alia that he was travelling at a low speed at the time and denied that he did not have his tail lights on. 15 It appears that, until about May 2001, the opponent and his solicitors had difficulty identifying the claimant's vehicle, because of the way its registration number had been recorded in the police notebook. However, on 18 May 2001, the opponent's solicitors obtained the correct registration number of the claimant's vehicle, and they apparently also became satisfied that there was no unidentified vehicle involved in the accident. 16 It appears that, about this time, the claimant's insurers were served with the Statement of Claim, and the proceedings were subsequently discontinued against the Nominal Defendant on 2 July 2001. 17 It seems that the claimant's solicitors received instructions in June 2001. They made a detailed request for particulars on 26 and 27 July 2001, to which the opponent's solicitors responded on 22 August 2001. The claimant's solicitors obtained the file concerning the matter from the Nominal Defendant's solicitors in about September 2001. 18 On 20 October 2001, the claimant's solicitors filed a Notice of Motion seeking orders striking out or dismissing the proceedings for non-compliance with s.50A of the Motor Accidents Act, that being a section which requires certain particulars of damage to be supplied prior to the commencement of proceedings. 19 The three-year limitation period prescribed by s.52 of the Motor Accidents Act expired on 10 November 2001, before the Notice of Motion was heard. The Notice of Motion was in fact heard by Acting Judge Bowden on 7 February 2002, and he dismissed the proceedings by reason of s.50A of the Motor Accidents Act. 20 Shortly afterwards, the opponent's solicitors gave notice to the claimant's solicitors that they would be applying for an extension of time to bring the proceedings pursuant to s.52(4) of the Motor Accidents Act. 21 The claimant's solicitors then undertook some enquiries concerning evidence in the case. They sought to have the opponent's truck examined on 24 April 2002. They ascertained that it had been written off after the accident, and then repaired. The tow ball by which the trailer had been attached was still available. 22 In July 2002, the claimant's solicitors attempted to contact the claimant, and were unsuccessful. Since then there have been attempts by the opponent's solicitors to locate the claimant, and they too have been unsuccessful. 23 The Notice of Motion seeking the extension of time was filed in Court on 12 September 2002, but apparently had been served some time prior to that, because the matter then proceeded as a defended matter on that day. It was part-heard on that day and the hearing concluded on 3 February 2003. As mentioned earlier, judgment was given on 10 February 2003.

PRIMARY JUDGE'S DECISION 24 The question of extension of time was governed by s.52 of the Motor Accidents Act 1988, which is as follows: 52 Time limitations on commencement of court proceedings (1) The objects of this section are: (a) to encourage and facilitate the investigation, assessment and negotiation of a claim for damages without the commencement of court proceedings, and (b) to impose a limitation period of 3 years for the commencement of legal proceedings for damages under this Act and to enable the extension of that period only if: (i) the claimant can explain the reasons for the delay in not commencing the proceedings within the 3-year period, and (ii) the claim is likely to result in an award of substantial damages, or in the circumstances described in subsection (4A).

(1A) A claimant is not entitled to commence court proceedings against another person in respect of a claim until: (a) 6 months have elapsed since notice of the claim was given to the other person and (if required by section 43 (4)) to the other person's insurer, or (b) 90 days have elapsed since the details required by section 50A were given to the other person's insurer, or (c) if the other person's insurer has made an offer of settlement to the claimant before the claimant commences court proceedings, 28 days have elapsed from the date on which the claimant's response to the offer is communicated to the other person's insurer, whichever is the later or latest.

(1B) Subsection (1A) (c) applies only to the first offer made by the other person's insurer and not to any subsequent offer.

(2) If notice is given to the other person's third-party insurer then despite subsection (1A) the claimant is entitled to commence court proceedings if any of the following occurs: (a) the insurer denies all liability in respect of the claim, (b) the insurer admits partial liability in respect of the claim but the claimant is dissatisfied with the extent to which liability is admitted, (c) in the case of a late claim within the meaning of section 43A, the insurer rejects the claimant's explanation for delay in making the claim or rejects the claim on the ground that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are less than 10% of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident.

(4) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after: (a) the date of the motor accident to which the claim relates, or (b) if the claim is made in respect of the death of a person, the date of death, except with the leave of the court in which the proceedings are to be taken.

(4A) However, if at the end of the 3-year period referred to in subsection (4), the claimant has complied with section 50A but is unable to commence court proceedings because of the effect of subsection (1A) (b) or (c), the claimant may commence court proceedings within 28 days after the period under subsection (1A) (b) or (c), or the later of those periods, has elapsed.

(4B) The leave of the court must not be granted unless: (a) the claimant provides a full and satisfactory explanation to the court for the delay, and (b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25 per cent of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident.

(4C) Subsection (4B) (b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity.

(5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim. 25 The primary judge held that the opponent's injuries were sufficient to satisfy the requirements of s.52(4B)(b); and there is no challenge to that aspect of his decision. The primary judge also found that the opponent had given a full and satisfactory explanation for the delay, as required by s.52(4B)(a), and there is no challenge to that aspect of the decision. 26 On the question whether it was fair and just to grant the extension of time, the primary judge said this: The issue that has been debated (at some length) is whether the delay has so prejudiced the prospective Defendant that a fair trial can no longer be possible. The prejudice pointed to by Mr. Gow, Counsel for the prospective Defendant, is three-fold.

Firstly, he points to the apparent inability to be in a position to call Mr. Smith, the driver.

Secondly, although the re-constituted truck and some parts are available (see Annexure A to the Affidavit of Mr. Rees, 27 August 2002), the opportunity has been lost to inspect chains and the like which may have been subject to mechanical failure. The tow ball (obviously fractured) is still available.

Thirdly, he says that prompt enquiry may have permitted a cross-claim against those who maintained the truck.

Ms. Thode, Counsel for the Applicant-Plaintiff, points to the inspections which have already taken place of the tip truck and trailer. She also gives an undertaking that, on a trial, no objection would be taken to the tender pursuant to Section 63 of the Evidence Act of Mr. Smith's very detailed statement.

In this respect, Mr. Gow submits that the Defendant should not be forced to rely only on a paper version of the facts. Plaintiff's Counsel would be submitting that the sworn evidence should be preferred.

Messrs. Hunt & Hunt came into the matter for the Insurer in early July 2001. The strike out application was filed in October 2001 and the Statute of Limitations came into operation on 9 November 2001.

The Registry file indicates that the matter was mentioned on a number of occasions before ultimately being dismissed on 7 February 2002.

There is no doubt that the Plaintiff has a very difficult case on liability. In a sense, it could be said that it would be futile to extend time.

On the other hand, it is clear that he suffered serious and permanent injury.

It seems to me to be unfair if he is to lose the opportunity of his day in court because of the poor handwriting in a police officer's notebook.

I hear what Mr. Gow says as to the added advantage of sworn evidence over and above the detailed statement of Mr. Smith but I bear in mind that this statement is in accordance with the police information. I note also that the tow ball is still available and therefore could be subject to metallurgical testing.

In my opinion, the Plaintiff has given a full and satisfactory explanation for the delay. I do not believe that material prejudice to the Defendant has been demonstrated and in my opinion it is fair and just to grant the extension.

GROUNDS OF APPEAL 27 The claimant seeks leave to appeal on the following grounds: 1. That his Honour erred in granting leave to the respondent pursuant to section 52(4) of the Motor Accidents Act 1988 to issue proceedings out of time.

That his Honour erred in not finding material prejudice to the appellant had been demonstrated.

That his Honour erred in finding it was fair and just to grant the extension of time.

That his Honour erred in taking into account unfairness that would be occasioned to the respondent by not granting leave.

That his Honour erred in weighing prejudice between the parties.

That his Honour erred in taking into account the "blamelessness" of the respondent for the delay.

SUBMISSIONS 28 Mr. Bridge SC for the claimant referred to Holt v. Wynter (2000) 49 NSWLR 128, and particularly to the test as stated by Priestley JA at [84], and Sheller JA at [119]. He submitted that the primary judge was in error in that he had not properly weighed or taken into account in determining whether a fair trial was shown to be likely the disappearance of the claimant, and the ability of the representatives of the claimant to properly investigate the role of possible mechanical failure in the causation of the accident. He submitted that also, in saying "I do not believe that material prejudice to the Defendant has been demonstrated", the primary judge reversed the onus of proof. 29 Ms. Katzman SC for the opponent submitted that leave to appeal should be refused, because the case raised no point of general importance and involved merely a complaint about factual findings. Ms. Katzman also referred to the discretionary consideration that a Statement of Claim had been brought against the opponent well within the limitation period, and the particulars required under s.50A had in fact been provided three months before the expiry of the limitation period; and the opponent required leave only because this Statement of Claim had been struck out on the technical ground that these particulars had been supplied after rather than before the commencement of proceedings. Furthermore, she submitted, the grounds of the appeal were insufficient in any event to satisfy the requirements of House v. The King (1936) 55 CLR 499. 30 Ms. Katzman submitted that the purpose of s.52 was to promote the early settlement of cases, and to discourage litigation; and not to confer a "litigious windfall" upon a defendant: see Salido v. Nominal Defendant (1993) 32 NSWLR 524 at 538. 31 Ms. Katzman submitted that the primary judge had correctly stated the test to be applied as set out in Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541. She submitted that error was not shown in the primary judge's treatment of the prejudice alleged to follow from the unavailability of the claimant: she submitted that the claimant had been available at the time of the accident, and also in April 2001, and that the circumstances that an unsuccessful attempt to locate the claimant was made by the claimant's insurer in July 2002, and that the opponent had not located the claimant, did not show that the claimant would not be available to give evidence at a trial. Furthermore, the unavailability of the claimant meant that the opponent could not cross-examine him, and thus the disadvantage to the opponent was greater than any disadvantage to the claimant. 32 Ms. Katzman submitted that no error was shown in the primary judge's treatment of the question of lost opportunity to have the opponent's truck examined. What was done to the truck was done well within the first six months after the accident, and the opponent was in no worse position now than then. There was no expert evidence to suggest that the claimant was in a worse position now by reason of any delay by the opponent: cf. Henricks v. Agnew (1997) 26 MVR 277 at 286. Ms. Katzman pointed out that records of the maintenance of the vehicle both before and after the accident had been produced to the Court. 33 Ms. Katzman referred to McLean v. Sydney Water Corporation [2001] NSWCA 122 at [27], where Giles JA pointed out that, for a trial to be fair it need not be perfect or ideal. Ms. Katzman also referred to Seib v. Morton [2000] NSWCA 139 at [52], where it was pointed out that the loss of an opportunity to have medical issues examined earlier could not fairly be treated as a prejudice flowing from an extension of the limitation period. Ms. Katzman submitted that this was in no way inconsistent with what was said in Taylor at 548, 549 and 554-5. 34 Ms. Katzman submitted that the sentence in the judgment of the primary judge which was criticised as reversing the onus was simply a shorthand way of dealing with the question whether delay had rendered a fair trial unlikely, and did not indicate error. 35 Finally, Ms. Katzman submitted that, if this Court were to find error and exercise the discretion for itself, it would find that the claimant would have a fair trial, because he could rely on the contemporary documents as supporting his case, and would have the benefit of cross-examination of the opponent, whereas the opponent would not have the benefit of cross-examination of the claimant. The person who maintained and repaired the truck was available. The claimant was in no different position than if the opponent had commenced proceedings in time: indeed, the opponent had commenced proceedings in time, and the claimant had notice of these proceedings well before the expiry of the limitation period, but these proceedings had been struck out.

DECISION 36 On the question of whether leave should be granted, in my opinion it is pertinent that, assuming damages would exceed $100,000.00, the claimant is entitled to have an appellate ruling on the question raised by the proposed appeal. It would appear that, at least in theory, that right could be availed of if leave is refused and a trial of the proceedings proceeds to finality, and results in a decision in favour of the opponent. In an appeal from that decision, it appears that the claimant could rely on the ground that the primary judge who granted leave under s.52(4) of the Motor Traffic Act was in error in doing so. However, that would raise precisely the same question as proposed to be raised in the appeal for which leave is now sought; and if the claimant is correct on this, it seems undesirable that both parties should be put to the expense of a full trial of the proceedings. Accordingly, it seems to me appropriate to consider if there is substance in the claimant's challenge; and if there is, it seems to me likely that it would be appropriate to grant leave. 37 Turning to the substantive issues, I note that the legislature has, by its limitation legislation, drawn a line between cases that can be pursued to finality notwithstanding vicissitudes that may affect the availability of evidence, and those that can be pursued to finality only if a court is affirmatively satisfied that it is fair to the defendant to permit this. In the former class of cases, the death of a witness or loss of material evidence may raise difficulties for one or both parties; but this is generally entirely irrelevant to whether the case can be pursued to finality. In one sense, the loss of evidence through no fault of a party may make a trial unfair for that party; but in a broader sense, the trial is fair because the loss of evidence is simply the realisation of a vicissitude which could equally have affected either party, in the context of proceedings brought within the time prescribed by the legislature. 38 It is different where the loss of evidence has occurred by the time when a plaintiff seeks leave to commence proceedings after the expiry of a limitation period: in that circumstance, the loss of the evidence is not merely a realisation of a vicissitude that could equally have affected both parties to litigation proceeding in the normal way, but is a reality existing at a time when the plaintiff has a positive burden of showing that the trial would be fair to the defendant. 39 It is in my opinion consistent with that approach that, in considering applications for extensions of limitation periods, the Court does not look just at the prejudice caused by the passage of time from the expiry of the limitation period to the hearing of the application for extension, but at all prejudice caused by all delay from the time of the events under consideration: see Taylor at 548-9, 554-5. However, it is also consistent with this approach that the Court gives greatest weight to prejudice occurring after the expiry of the limitation period, and gives greater weight to prejudice arising towards the end of the limitation period than to prejudice arising earlier, which would have been suffered even if the proceedings had been commenced very promptly. 40 Also, I think it is consistent with this approach that the loss of evidence which could disadvantage the plaintiff, as well as the defendant, may still be regarded as a prejudice preventing a fair trial for the defendant. A loss of evidence which could disadvantage either party increases the risk of a decision which is not in accordance with the facts as they actually occurred: a plaintiff bringing proceedings out of time may choose to subject himself or herself to this increased risk of a wrong decision, but it can still be considered unfair to the defendant, who is sued outside the limitation period, to have this risk imposed on him or her: cf. McLean at [35]. 41 The first question in relation to the decision of the primary judge, then, is whether what he said about the disappearance of the claimant and/or about alteration to the truck amounts to an appealable error of law. As shown by House v. The King, it is insufficient that this Court would disagree with the conclusion: there must be an appealable error shown by an application of wrong principle, or error in lack of reasons, or a result so unreasonable that it must have been infected by error. 42 Looking first at the single sentence in which the primary judge dealt with the apparent disappearance of the claimant and his unavailability to give evidence, the primary judge appears to be saying that there is no prejudice to the claimant because the statement he gave to the investigator is admissible and "in accordance with police information". In my opinion, if that is what he was saying, this would be an error of law. It is correct that there may be advantages to the claimant's case if the claimant is not available to give evidence, because the claimant could not be cross-examined, but there may also be serious disadvantages: the opponent would presumably make adverse comment on possible inconsistencies between the claimant's statement to the police and later statement to the investigator (for example, in the former he said he was travelling at about 80 kph, in the latter he said he overtook the opponent's vehicle travelling at about 100 kph) and on what might be regarded as "gilding the lily" concerning checking that his tail lights were working before setting off on the journey; and all the sworn evidence would go the one way. It is not appropriate to say that, because there may be advantages to a defendant in the unavailability of a witness, this can cancel out the disadvantages that this may occasion. The substantial possibility of disadvantage is a prejudice to a defendant; and the question in this case was whether the opponent had shown in all the circumstances that a fair trial was not unlikely. There is no indication that, in dealing with the unavailability of the claimant, the primary judge squarely addressed that question. 43 Turning to the sentence concerning the alteration to the truck, again the primary judge appears to say that there is no prejudice because the tow ball is still available for inspection. However, plainly the claimant is in a far worse position to lead expert evidence on the role, if any, of mechanical failure in causing the accident than he would have been in if an inspection could have taken place before repair and alteration. I do not think expert evidence was required to discharge the evidentiary onus on the claimant to show that there was a problem about this, so as to leave an ultimate onus on the opponent to show that a fair trial was not unlikely. However, the evidence shows that an insurance claim in respect of the vehicle was paid on 20 November 1998, just eleven days after the accident; and it seems likely that the repairs and alterations were made within a short time of the accident. In those circumstances, I do not think it can be said that the delay in this case could be considered to have affected the fairness of the trial in this respect, and I do not think that this consideration stood in the way of the opponent showing that a fair trial was not unlikely. I do not think material error is indicated by what the primary judge said on this matter. 44 The statement of the primary judge "I do not believe that material prejudice to the Defendant has been demonstrated" could be taken as referring only to the evidentiary onus on the claimant, rather than indicating that the judge did not appreciate that the relevant question was whether the opponent had shown that a fair trial was not unlikely. However, when coupled with the primary judge's treatment of the absence of sworn evidence from the claimant, in my opinion this statement does suggest that the primary judge reversed the onus on this matter. 45 Accordingly, I think there was appealable error by the primary judge in relation to the disappearance of the claimant and the onus of proof; and I think it is appropriate to grant leave to appeal and for this Court to re-exercise the discretion. 46 In exercising the discretion in this matter, there are substantial factors in favour of the opponent. It is significant that the opponent had commenced proceedings within time, and that the claimant's insurer had been served about six months before the expiration of the limitation period. However, after receiving particulars and receiving the file from the Nominal Defendant's insurer, the claimant correctly took the view that the proceedings had been improperly commenced, and applied to strike them out. There does not appear to have been any deliberate delay by the claimant in bringing that application, and the opponent had something over two weeks after the application was brought to recognise that the proceedings had indeed been improperly commenced and to validly commence proceedings within time. The primary judge found that, in these circumstances, a full and satisfactory explanation had been given for not commencing the proceedings within time. However, that history does not mean that the case is other than one where proceedings were not commenced within time, and the onus is squarely on the opponent to show that it is fair to give leave to commence the proceedings. 47 Another factor in the opponent's favour is that he was seriously injured; but in my opinion this factor is to some extent mitigated by the circumstance that the opponent is not otherwise without a remedy. Although the evidence does not show what workers' compensation he has received, it does show that he has received workers' compensation in relation to the accident. 48 It is a factor against the application that prima facie the opponent's case is a very weak one. The version of the accident now relied on by the opponent to make out a case against the claimant is in very substantial respects inconsistent with the version he gave to the police on the day. According to what the opponent said to the police on the day, he did not attempt to slow the vehicle until after he had pulled into the second lane to pass the claimant's utility and then pulled back into the first lane because he noticed that the handling of the rear of the truck was not right. Even then, he does not refer to braking heavily, but only starting to slow. It has been suggested in effect that this prima facie weakness of the opponent's case is a reason for saying that the claimant would get a fair trial; but in my opinion it does not show this, but rather is a reason against granting leave. 49 Because of the inability to locate the claimant, in my opinion the trial would be less than ideally fair to the claimant; although, had all other circumstances been strongly in favour of granting leave, I would have held that the unfairness was not such as altogether to preclude the grant of leave. 50 However, taking account of all the matters I have discussed, I am not satisfied that it is just and fair to grant the extension of time to the opponent.

CONCLUSION 51 For those reasons, I propose the following orders: 1. Leave to appeal granted. 2. Claimant to file Notice of Appeal within 14 days. 3. Appeal allowed. 4. Judgment below set aside, and leave under s.52(4) refused, with costs. 5. Opponent to pay claimant's costs of the application and appeal, and to have a certificate under the Suitors Fund Act if otherwise qualified. 52 STEIN AJA: I agree with the orders proposed by Hodgson JA and with his reasons concerning the disappearance of the claimant. As to the condition of the truck, I respectfully agree with Giles JA. Upon a re-exercise of the discretion I would refuse to extend time for the reasons given by their Honours. **********

Last Modified: 03/30/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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