The relevant provisions of the MAA
11 Section 52(3) provided:
"If a claimant commences proceedings in respect of a claim more than 12 months after the date on which the claim must be made in accordance with section 43, the claimant must provide a full and satisfactory explanation to the court for the delay."
12 Section 52(4) provides:
"A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after the date on which the claim must be made in accordance with section 43 except with the leave of the court in which the proceedings are to be taken."
13 Aside from the court adjudications, which are beyond dispute, the plaintiff's version of events differs from those of her solicitor. In particular, at odds, is the plaintiff's state of knowledge of the progress of her claim and the level of contract maintained between the two. These differences now cannot be reconciled because the plaintiff is now deceased.
14 The plaintiff deposed that in October 1990 she contacted Mr Baker by telephone on a number of occasions to enquire as to the progress of her matter. According to the plaintiff, on each occasion Mr Baker informed the plaintiff that the matter was going to court and he advised her that he would let her know when a court date was obtained. It was at time that the plaintiff became dissatisfied with Mr Baker. In November 1990 the plaintiff saw North & Badgery Solicitors in Dubbo and instructed them to obtain her file from Mr Baker. Mr Baker would not release the file to North & Badgery and as she did not have the money available to pay his fees the plaintiff reluctantly decided to reinstruct Mr Baker on or about 2 April 1991.
15 In early 1990 the plaintiff's medical condition worsened in that she began having fits. In about June 1990 she had a severe fit and suffered loss of consciousness. Medical reports were obtained in 1991, 1992, 1993 and 1994. The report of Geoffrey Fox, a clinical neuropsychologist, dated March 1993, paints an alarming picture of the plaintiff he states (at 3):
"Mrs Stanley is quite grossly limited. I believe I have evidence which indicates a very significant cognitive impairment. In particular her performance on the Middlesex Elderly Assessment was so bad that one would be tempted to describe the condition as bordering on dementia. Naturally, one cannot make such a serious diagnosis on one assessment. If this serious deficiency were to persist over a period of 6 to 12 months, and was confirmed in a second assessment, then one could be more confident in pointing to a serious impairment in intelligence. Other evidence which I gathered indicated to me that this is likely to be an acquired deficit, and did not pre-exist her injury."
16 There is no neurological report available which links the severe fits with the injuries suffered in the motor vehicle accident.
17 The plaintiff deposed that she was never informed by Mr Baker of the orders striking out the statement of claim made by Wood J on 15 October 1993. Nor was she aware of a letter dated 10 January 1994 from Mr Baker to the defendant's solicitors informing them that she would declare herself bankrupt rather than pay their costs. She did not give authority or instructions for this letter to be sent. On 22 February 1994 the plaintiff signed a further claim form.
18 On 30 December 1994 a further statement of claim was filed in the Supreme Court at Dubbo. The plaintiff was not told of this event. From 1989, Mr Baker had employed a solicitor Mr Glen Turner, whom he thought was familiar with the provisions of the MAA. Mr Baker had handed the file to Mr Turner to take whatever steps were necessary. Mr Baker personally did not take any steps to notify the plaintiff of the provisions of the MAA nor did he check on the progress of the file. Mr Baker cannot give any explanation for the delay in taking proceedings except to say that there was a shortfall in the practice. The plaintiff was not informed of the orders made by Master Greenwood on 13 June 1995. It is interesting to note that the plaintiff in her affidavit did not make any reference to the involvement of Mr Turner in her proceedings.
19 In February 1995 the plaintiff's solicitor, Mr Baker, moved his legal practice from Dubbo to Wellington. In June 1995 he wrote letters to all the clients of the practice and notified them of the changes that were about to occur. He requested that they advise him whether they wished him to continue to act for them. He heard nothing from the plaintiff. In June 1995 Mr Baker took all the inactive files and stored them in his shearing shed on his property in Wongarbon. These files were later destroyed.
20 Around October 1995 the solicitors for the defendant wrote to their client insurer and advised them that they had heard nothing further from the plaintiff's solicitor, and recommended they close their file. The defendant's then solicitors closed their file. That file has since been destroyed. The insurer still had its file.
21 The plaintiff deposed that from 1995 to about 1999 the plaintiff contacted Mr Baker to enquire of the status of her matter. Each time Mr Baker ensured her that the matter was fine. The plaintiff further deposed that Mr Baker never informed her that her matter was inactive.
22 In 1999 the plaintiff says that she saw Mr Baker in Wellington and was told "I want it finalised too because I have money tied up in it too… I will look into the matter and get back to you". The plaintiff deposed that she heard nothing more from Mr Baker. However Mr Baker deposed that he has no recall of any conversation with Mrs Stanley from June 1995 to about 2001.
23 On 15 July 2003 the plaintiff and a friend attended Mr Baker's office in Wellington where they were informed that the matter went to court in about 1994 or 1995 and it was "squashed". According to the plaintiff, Mr Baker also informed them that he was unable to find the file and thought it was destroyed as it was over seven years old. He stated that he would get information on the files and contact the plaintiff the week after.
24 Mr Baker says that it was in 2001 or 2002 that the plaintiff came to see him. He says that the plaintiff came to his office with her father and said, "What's going on in my matter?" He replied in words to the effect that he would have to find the file and he could not remember what had happened to it. Mr Baker then searched his shearing shed and concluded that he could not find it but did not advise the plaintiff of this fact. Then in 2003, the plaintiff attended his office in Wellington and again asked, "What happened to my matter?" and he replied that he did look for the file but he could not locate it.
25 On 12 August 2003 Vicki Howarth, on behalf of the plaintiff contacted Mr Baker. She was told that he was unaware what year the matter went to court and he would look into it. Shortly after, the plaintiff enquired what date the matter went to court and Mr Baker stated that he did not know. On about 23 September 2003 the plaintiff contacted Mr Firth and instructed him in the matter. On 14 October 2004 the motion to reactivate the s 52(4) application was filed.