Tyson v Morgan [1998] QSC 90

The plaintiff was injured in a motor vehicle accident on 15 July 1992. The Writ of Summons therefore issued two months before the expiration of the limitation period within which action with respect to it might be brought.

A period of nearly five years and nine months has expired between the time the cause of action allegedly arose and the date the application was made to renew the writ.

The plaintiff suffered very significant injury in the motor vehicle collision, although it was agreed upon application that the quantum of damage would probably be within the jurisdiction of the District Court. Presumably if the writ be renewed an application will be made to transfer the action to that Court.

The plaintiff has adduced an enormous amount of material upon this application highlighting the significant injuries she received and the medical treatment obtained for them from a large number of medical practitioners. That material seems to me to have little relevance to the issues upon this renewal application and I do not propose to analyze it.

What does emerge however, is that it was not until 28 January 1996 that the solicitors for the plaintiff took steps to have the Writ of Summons served on the defendant by a process server. By letter from that process server dated 19 April 1996, the plaintiff's solicitors were advised that it had been unable to locate the defendant although neither the extent nor persistence of its enquiries emerges from the terms of that letter.

The plaintiff's solicitors had advised the defendant's motor vehicle insurer of the plaintiff's injury and her intention to hold the defendant responsible by letter of 21 January 1994.

A traffic accident report was procured to which was attached statements relating to the plaintiff's injury taken from four witnesses in July 1992 - within a few days of that injury. The defendant's insurer obtained a copy of this material on 3 May 1994.

By letter dated 9 June 1994, the defendant's insurer advised the solicitors for the plaintiff that it had completed its investigations and believed that the plaintiff was responsible for her injury and therefore denied liability. Included in that letter, was the following observation:-

"Should your client wish to pursue her claim we ask that you issue proceedings effecting service directly upon the defendant and our office."

The solicitors for the plaintiff wrote a letter to the defendant's insurer on 7 June 1994 enclosing a copy of the traffic accident report (which had already been obtained by the insurers) and advising that if the insurer did not admit liability within fourteen days, court proceedings would be taken.

By letter dated 17 January 1996, the solicitors for the plaintiff forwarded to the defendant's insurer a copy of the Writ of Summons issued by the plaintiff on 4 May 1995. The letter advised that their plaintiff did not require an immediate Entry of Appearance and in an attempt to negotiate a settlement, medical, hospital reports etc. were enclosed.

The defendant's insurer replied to the solicitors for the plaintiff by letter of 4 April 1996 advising that its present solicitors would be handling the matter for it.

On 19 July 1996, the insurer's solicitor sent a letter to the plaintiff's solicitor referring to correspondence of 17 and 26 April and specifically requested of the solicitors for the plaintiff:-

"Will you please advise us as to service upon the defendant so that we can take appropriate action on his behalf."

By letter of 6 August 1996, the solicitors for the insurer again requested of the

"Will you please advise as to service upon the defendant. We note that the writ was issued on 4 May 1995 so we assume the defendant had either been served or the writ has been renewed.

We are anxious to consider our client's position and we request your immediate response."

In reply the solicitors for the plaintiff advised the insurer's solicitors that they had not

yet served the defendant with the Writ of Summons but that they had instructions from the plaintiff to make application to the Court to renew the writ and to make application to the Court for substituted service. The plaintiff's solicitors requested that the solicitors for the insurer obtain instructions as to whether they would be prepared to accept service of the writ "on behalf of their insured".

There is no response from the insurer's solicitors to this letter and on 30 October 1996, the plaintiff's solicitors again requested advice immediately as to whether the insurer's solicitor would be prepared to accede to the applications proposed in their letter of 13 August 1996.

By letter of 11 November 1996, the solicitors for the insurer advised the plaintiff's solicitors that in their view the plaintiff had "substantial problems both [on] the issue of liability and procedure". The insurer's solicitor reaffirmed the attitude expressed in the insurer's letter to the plaintiff's solicitors of 9 June 1994.

It is unnecessary for me to examine the facts upon which this attitude was based. They appear in the statements of witnesses appended to the traffic accident report to which I have already referred. It suffices to say that the attitude of the insurer in the light of that material is understandable.

Nothing was done on behalf of the plaintiff to renew the writ or to obtain an order for substituted service until the solicitors for the insurer by letter of 11 April 1997 sought advice as to whether the plaintiff intended to take any further steps in connection with the matter.

It seems that nothing more was heard from the plaintiff's solicitors until by letter of 2 April 1998, they advised the solicitors for the insurer that they were in the process of filing a summons seeking renewal of the writ and that thereafter they proposed to seek to effect service of that summons upon the insurer - presumably by way of obtaining an order for substituted service as intimated in earlier correspondence.

Reference was made to s.4A of the Motor Vehicles Insurance Act 1936. However, the defendant's insurer is not a licensed insurer within the contemplation of the Queensland legislation. It is a motor vehicle insurer in the State of Victoria and it was not suggested in the course of argument that procedures available to licensed insurers within Queensland have any application to the insurer of the defendant in this case. Undoubtedly, there are provisions in the Victorian legislation relating to motor vehicle insurance which are relevant as far as the obligation of the defendant's insurer to indemnify the defendant against legal liability to the plaintiff is concerned. However, that seems not to take the plaintiff very far upon this application.

The plain fact is that although the solicitors for the plaintiffs did serve on the defendant's insurer a copy of the Writ of Summons, and although ultimately as well, it served on the insurer a copy of the traffic accident report and attempted to negotiate a settlement of the plaintiff's claim, the insurer had an election to exercise its rights of subrogation to conduct proceedings on behalf of the defendant but was not obliged to. It could not have been obliged to conduct any defence on behalf of the defendant before he was served.

The case most directly applicable to the issues upon this application, is Jones v Jebras & Hill [1968] 1 Qd.R. 13. and particularly the statements and application of principle relevant to this application to be found at pp.23-24.

On the facts of this case, in my view, reasonable efforts have not been shown to have been made to serve the defendant with the Writ of Summons within twelve months of its issue.

I am unpersuaded from the terms of the couple of documents under the signature of the process server exhibited to the affidavit of the solicitor for the plaintiff that any reasonable efforts were made to locate the defendant. In fact, after this application was made for renewal of the writ, the solicitor for the defendant's insurer seemed to have no difficulty in ascertaining that the defendant was currently residing with his parents at 30 Grange Road, Rye, in the State of Victoria - his address registered as that at which the vehicle driven by him at the time of the plaintiff's injury was kept.

Stated shortly, the plaintiff has not satisfied me that reasonable efforts have ever been made on her behalf to effect personal service on the defendant within the period of twelve months from the date of its issue on 4 May 1995.

I turn then to the other relevant question which is whether there is some good reason why the writ should be renewed in spite of the fact that reasonable efforts have not been made to serve it within twelve months. In considering this question, I have regard to the statements of principle to be found in the following cases -

Borg v Muscat [1972] Qd.R. 253

Dempsey v Dorber [1990] 1 Qd.R. 418

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 C.L.R. 541 and particularly per McHugh J. at pp. 553-554.

In considering this aspect of the application, I have regard not merely to the absence of any explanation for failing to make reasonable efforts to effect service within twelve months of the issue of the writ but also to the following matters:-

(1) The prejudice which would undoubtedly be suffered by the defendant in now being called upon to rely upon the recollection of witnesses relevant to his case - even including his own recollection for that matter - of unusual events that occurred within a very short period of time nearly six years ago.

(2) It emerged on the material and in the course of addresses that it will be the case for the defence if the writ is renewed that the plaintiff at the material time was suffering from significant psychiatric imbalance. She was affected by liquor. She was inferentially on statements of eye witnesses deliberately putting herself at risk by standing in the path of motor vehicles as they travelled between Maroochydore and Noosa Heads in darkness on or in the vicinity of a bridge on a two lane highway.

(3) One witness, a Mrs Hollis, at the relevant time manageress of the motel where at the time of her injury the plaintiff was staying, in fact noted unusual conduct of the plaintiff consistent with a psychiatric disturbance and made notes of various events relating to it. She also checked records she had of telephone calls made by the plaintiff and found that one at least was made to a psychiatric hospital in the district. Eighteen months or so after the plaintiff's injury, these reports were lost and Mrs Hollis has only now been asked to try to recall the events which she may have been able to recall within twelve or eighteen months of the event without the assistance of the notes. She has only recently been located by the solicitors for the defendant's insurer and has advised that she has some recollection of events but unfortunately is unable to recall the name of the particular psychiatric hospital that her inquiries indicated the plaintiff had been in contact with on the night of her injury. Of course there is a vast amount of medical evidence that has been collected on behalf of the plaintiff including psychiatric reports.

It seems to me that the facts of this case are quite different from those in Dempsey v . Dorber (supra) for example, where the insurer was precluded from putting liability in issue should leave be granted in applications made under O.9 r.1 and O.90 r.9.

Comparing the facts of this case with those considered by Gibbs J. in Jones v. Jebras & Hill (supra) I simply observe:-

(1) About 18 months after her injury, the defendant's insurer had been informed by the plaintiff of her intention to issue the writ before it was issued.

(2) The Writ of Summons was served in due time on the insurer who undoubtedly under Victorian legislation is liable ultimately to pay to the plaintiff the amount of any judgment she may obtain against the defendant to the extent that it remains unsatisfied.

(3) Well before the writ issued the plaintiff's solicitor had provided the insurer with a number of reports relating to both liability and quantum.

I am unpersuaded however on the facts of this case that the defendant would not be prejudiced in the conduct of his case by the delay in serving the writ upon him. The evidence does suggest to my mind that the delay, which is really unexplained, will result in evidence either being no longer available or to the extent that it is available, being greatly reduced in value because of the diminishing recollection of the witnesses and the inability of solicitors for the defendant (who in the absence of conflict of interest will most probably be the solicitors for the defendant's insurer on this application) being able to obtain the sort of detailed instructions on matters which would have been more clearly within the recollection of available witnesses two or three years ago than they are at the present time.

In Jones v. Jebras (supra) there had been a delay of about sixteen months from the writ becoming stale before the application for renewal was made and Gibbs J. said that that delay "was not very great".

In the light of the approach of the High Court in Brisbane South Regional Health Authority v. Taylor (supra) - and particularly the observations of McHugh J. at p. 546 and pp. 554-555, I take the view that when considering the question of delay as an aspect of prejudice to a defendant, the better approach is to consider the period of time that has elapsed between the arising of the alleged cause of action and the application made for a discretionary extension of time within which to pursue it rather than to consider the delay that has occurred since the necessity first arose to obtain an extension by leave of the Court. I can see no reason to differentiate between applications to extend the limitation period, and those made under R.S.C. O.90 r.9 and those made under R.S.C. O.9 r.1 in this regard. All three applications involve extending the period of time during which a defendant may be called upon to meet a plaintiff's claim which has become stale by statutory enactment. This approach is supported I think by observations in Birkett v. James (1978) A.C. 297 at 322F-323H per Lord Diplock and at 331 per Lord Salmon and at 334F-335G per Lord Edmund-Davies.

Whilst it is true that the plaintiff may have obtained a renewal of her Writ of Summons without the exercise of judicial discretion any time up until the beginning of May 1996, in determining this application, I consider the period of time which has elapsed, without any real exculpatory explanation being given for that lapse, between the alleged cause of action arising in July 1992 and the application for renewal of the writ in April 1998.

I take into account the fact that without renewal, the Writ of Summons issued so long ago will not permit the plaintiff to proceed against the defendant. If her Writ of Summons is not renewed any fresh action instituted will be defeated by a defence based upon the Statute of Limitations. I give some weight therefore to the effect of the Statute of Limitations which would bar the plaintiff's right to bring action subsequent to 15 July 1995. However, that is only one matter for consideration on an application of this sort, but keeping in mind the observations made in Brisbane South Regional Health Authority v. Taylor (supra) it is one which ought be given due weight in the context of the evidence of prejudice adduced which must be considered when determining whether the plaintiff has shown that "there is other good reason why the writ should be renewed". The only reason advanced on behalf of the plaintiff is the fact that the defendant insurer was provided with the traffic accident report (and witness statements appended to it) within the limitation period. I approach the determination of this question on the basis that the lengthy and really unjustified delay, together with the effect of the limitation legislation which would bar the plaintiff's right now to take proceedings and thus put the defendant at a risk to which he would not otherwise be put are both matters which must be kept in mind when evaluating the various matters to which Gibbs J. referred in Jones v. Jebras (supra).

While I am conscious that the solicitors for the plaintiff put the insurer in possession of much of the basic material available to the plaintiff concerning both liability and quantum at an early stage of negotiations with that insurer, nevertheless there has been a very significant and unjustified delay which will produce all the consequences discussed in Brisbane South Regional Health Authority v. Taylor (supra) by reason of the plaintiff's failure to make reasonable attempts to effect service on the defendant or to renew her writ within twelve months so that her action might become properly constituted and capable of being conducted. At the moment, there is really no action by the plaintiff proceeding. Unless she obtains a renewal of her Writ of Summons she will be in the same position as if she had never issued it. It is unclear just what is the delay in hearing actions presently commenced in the District Court but if the writ is renewed and pleadings etc delivered and all interlocutory steps taken forthwith I should be surprised if from time of commencement they would come on for hearing within two years.

On balance, I am unpersuaded that good reason has been shown to renew the writ. In coming to this conclusion, I give weight to the observations made in Brisbane South Regional Health Authority v. Taylor (supra) in light of the evidence relied upon by the defendant's insurer as to the effect of delay on its ability to conduct its perceived defence of the defendant.

The plaintiff in this case very sensibly made the defendant's insurer a respondent to its application. Undoubtedly, the insurer would exercise its rights of subrogation to conduct whatever defence may be open to the defendant should the writ ever be served on him.

There was no argument about the locus standi of the defendant's insurer to oppose the plaintiff's application for renewal of the writ and argument proceeded on the basis that it did have sufficient locus standi. Accepting that proposition, it seems to me that the ordinary rule as to costs ought apply. Costs ought follow the event and because this application was made on notice to the respondent and because no objection was taken to its opposing the application, it seems to me that it ought have its costs.

I dismiss the application. I order that the plaintiff pay to the respondent its costs of and incidental to the application to be taxed.