Ward v Wiltshire Australia P/L & Anor

SUPREME COURT OF QUEENSLAND

CITATION: Ward v Wiltshire Australia P/L & Anor [2008] QCA 93

PARTIES: HELEN LOUISE WARD (appellant) v WILTSHIRE AUSTRALIA PTY LTD ACN 062 820 062 (first respondent) SUNCORP METWAY INSURANCE LIMITED ACN 075 695 966 (second respondent)

FILE NO/S: Appeal No 5611 of 2007 / SC No 4081 of 2007

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 18 April 2008

DELIVERED AT: Brisbane

HEARING DATE: 20 February 2008

JUDGES: McMurdo P, Fraser JA and Mackenzie AJA / Separate reasons for judgment of each member of the Court, Fraser JA and Mackenzie AJA concurring as to the order made, McMurdo P dissenting

ORDER: Appeal dismissed with costs

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – PARTICULAR CASES – OTHER CASES – where s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) gave the court a discretion to grant leave to bring a proceeding based on a motor vehicle accident claim notwithstanding the expiry of the limitation period – where the trial judge restricted the favourable exercise of the discretion to cases where the delay was caused by attempts by the appellant to comply with the Act – whether the trial judge acted on a wrong principle by holding that in order to be granted leave it was necessary for the appellant to demonstrate that her delay was occasioned by attempts to comply with the Act / INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – OTHER CASES – QUEENSLAND – where s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) gave the court a discretion to grant leave to bring a proceeding based on a motor vehicle accident claim notwithstanding the expiry of the limitation period – where the trial judge had acted on wrong principle – where it was necessary to exercise the discretion afresh – where there had been a significant delay in the proceedings – where the plaintiff had relied upon her solicitor to progress her claim – where the delay was largely attributable to the inaction of the appellant’s solicitor who was mentally incapacitated – where the appellant retained new solicitors – where the solicitors pursued the appellant’s former solicitor and not the respondents – where the appellant’s new solicitors later sought to progress the claim against the respondents – analysis of the enquiry to be made and of the factors relevant to exercising the discretion conferred by s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) / Limitation of Actions Act 1974 (Qld), s 31 / Motor Accident Insurance Act 1994 (Qld), s 3(a), s 3(aa), s 3(c), s 3(d), s 3(f), s 37, s 37A, s 41, s 41(2), s 45, s 46A, s 47, s 51A, s 51B, s 51C, s 51C(6), s 57, s 57(2)(b) / Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, cited / Carrier v Bonham [2002] 1 Qd R 474; [2001] QCA 234, cited / FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268; [1988] HCA 13, cited / Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36, referred to / Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28, cited / Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378; [2004] QCA 480, followed / The Owners of “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54, cited / Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34, cited / Sophron v The Nominal Defendant (1957) 96 CLR 469; [1957] HCA 27, cited / Spencer v Nominal Defendant [2007] QCA 254, followed / Ward v Wiltshire Australia P/L & Anor [2007] QSC 144, varied / Watts v Rake (1960) 108 CLR 158; [1960] HCA 58, cited / Winters v Doyle & Anor [2006] 2 Qd R 285; [2006] QCA 110, followed

COUNSEL: K F Holyoak for the appellant / S C Williams QC and J O McClymont for the first and second respondents

SOLICITORS: Anderson Brady for the appellant / Quinlan Miller and Treston for the first and second respondents

McMURDO P: Fraser JA has set out the bulk of the relevant facts, issues, legislative provisions and pertinent case law so that my reasons for allowing the appeal can be briefly stated.

The appellant, Helen Louise Ward, was 26 years old when she was involved in a two car accident on 8 March 2001. The collision occurred when the driver of the other car failed to stop at a red light. A few days later Ms Ward retained a solicitor to progress her action for damages against the first respondent (the owner of the other vehicle) and the second respondent (the insurer of the other vehicle) ("Suncorp"). Ms Ward changed solicitors in August or September 2004. Her present solicitors filed an application in the Supreme Court on 11 May 2007 under s 57(2)(b) Motor Accident Insurance Act 1994 (Qld) ("the MAIA") to be allowed to commence proceedings against the respondents and for other related orders. The learned primary judge refused Ms Ward's application with costs. Ms Ward appeals from that order.

I agree with Fraser JA's reasons for concluding that the learned primary judge erred in determining the legal principles applicable to the exercise of discretion under s 57(2)(b). The judge considered that, in order to invoke a favourable exercise of that discretion, Ms Ward had to demonstrate that the delay in progressing her claim was associated with compliance with the requirements of the MAIA.¹ If demonstrated, that is a factor in favour of granting an application under s 57(2)(b). But it is not an essential prerequisite to the making of such an order. I also agree with Fraser JA that this error influenced the primary judge's exercise of discretion under s 57(2)(b) so that this Court must exercise that discretion afresh. It is in the re-exercising of that discretion that I have reached a different conclusion.

Ms Ward has the onus of showing why the discretion under s 57(2)(b) should be exercised in her favour.² Factors relevant to the present application include the length of the delay; the reason for the delay before the expiration of the limitation period; the reason for the subsequent delay; the strength of Ms Ward's claim; whether the respondents would be prejudiced by the granting of the application and the related question of whether a fair trial will be possible; as well as the legislative intent evident from s 57(2)(b) in its legislative context. The overriding consideration is the interests of justice.³

I consider the following evidence pertinent. Ms Ward relied on the expertise of her original solicitor, retained a few days after the accident, to act in her best interests in progressing her action for damages. He sent a detailed notice of accident claim form to Suncorp on 11 April 2001, about a month after the accident; it is common ground that this was a complying notice of accident claim under s 37 of the MAIA. The notice of claim records that Ms Ward was then in full time employment with Hungry Jacks Pty Ltd and earning a gross weekly income of $595. On 13 September 2001 Suncorp admitted full liability for the accident. Ms Ward's quantum claim was then pursued in a reasonably timely way by her original solicitor until about September 2002.

At this time, the solicitor's general practitioner diagnosed him with depression and prescribed antidepressants. He had been suffering symptoms of depression since mid-2002. Despite the September diagnosis, he continued to make some progress with Ms Ward's claim. He made appointments for her to see a psychiatrist and an orthopaedic surgeon in late September 2002. He received their reports in October and November 2002. He also obtained copies of her WorkCover file from Suncorp in November 2002. In December he sent to Suncorp her income tax returns and group certificates from 1998 to 2002.

The solicitor then did nothing to progress the claim until, at the earliest, 10 November 2003 when he swore he forwarded an offer to settle to Suncorp. An officer from Suncorp denied receiving any such offer until the following February.

The solicitor had meanwhile consulted his general practitioner about ongoing depression in May and July 2003. In January 2004 the treatment for his diabetes, originally diagnosed in March 2002, was changed from tablets to insulin injections. At that stage, he was extremely depressed and had suicidal thoughts.

It is common ground that at least by 14 February 2004 Ms Ward's solicitor had forwarded an offer to settle to Suncorp. Suncorp responded by advising that it required her to be examined by an orthopaedic surgeon of its choice. But for this request, Ms Ward could have complied with the pre-litigation requirements of the MAIA and issued proceedings within the statutory time limit. Her solicitor and Suncorp agreed that the limitation period be extended to 8 June 2004 to enable Suncorp to have Ms Ward reviewed by its chosen orthopaedic surgeon. Both Ms Ward and Suncorp agreed to comply with the remaining pre-litigation requirements of Div 5A of the MAIA by 8 June 2004. Ms Ward attended upon Suncorp's selected medical practitioner on 7 May 2004. Her solicitor received the resulting medical report on 24 May 2004.

In June 2004 the solicitor's general practitioner found him to be extremely depressed and immediately referred him to a psychiatrist. The agreed extended limitation period expired on 8 June 2004. Neither Ms Ward nor Suncorp had satisfied their agreement to comply with the requirements of Div 5A of the MAIA by that date.

On 28 June 2004 the solicitor's psychiatrist diagnosed him as suffering from major depression. Between 23 July and 26 July 2004 he twice attempted suicide. On 27 July 2004 he was admitted to a psychiatric clinic where he remained until 8 September 2004. He did not return to his former legal practice.

In early August 2004 a solicitor was employed as a locum tenens to manage the original solicitor's files. Suncorp forwarded a HIC notice of past benefits on 31 August 2004. It took no issue at that time about the expiration of the agreed extended limitation period. The locum solicitor realised that the proceedings against the respondents had not been commenced within the agreed extended limitation period. Suncorp refused his request to agree to a further extension. He recommended to Ms Ward that she seek independent legal advice.

She retained her present solicitors in August or September 2004. They commenced proceedings against her original firm of solicitors claiming damages for the lost opportunity to claim damages against Suncorp for her injuries arising from the accident.

As noted, her present solicitor filed this application on 11 May 2007. He deposed that, although Ms Ward first consulted him in September 2004, three months after the expiry of the extended limitation period, he did not become aware of the severity of the original solicitor's illness until shortly before bringing the present application.

This evidence demonstrates that at least from the beginning of 2003 Ms Ward's original solicitor did not pursue her claim in a timely fashion. He has recently deposed that Ms Ward was a co-operative client who was keen to have her claim resolved promptly and was totally reliant on him to progress her claim. I accept that Ms Ward reasonably relied on his expertise in the conduct of her action and that the delay was not contributed to by Ms Ward. The explanation for his delay, which would otherwise be unprofessional behaviour, is that he was suffering the debilitating effect of serious depression, a significant psychiatric illness. The evidence does not suggest that Suncorp did anything to progress or encourage the speedy resolution of Ms Ward's claim. Once it exercised its entitlement to require her to be examined by its medical practitioner, it became impossible for Ms Ward to comply with the MAIA within the unextended limitation period.

I am satisfied that the explanation for the delay prior to the expiration of the agreed extended limitation period was occasioned in part by a requirement to comply with the MAIA, in small part by Suncorp's own tardiness, but for the most part by the inability of Ms Ward's original solicitor to act in her best interests in progressing her claim in a timely way because of his debilitating psychiatric illness. Ms Ward was a 26 year old full time employee of Hungry Jacks Pty Ltd earning less than $600 gross per week. She relied on her original solicitor to protect her legal interests. In those circumstances, the responsibility for the delay in progressing her claim prior to September 2004 should not be personally attributed to Ms Ward.

The lengthy delay of three years after the expiry of the agreed extended limitation period, at least once Ms Ward retained her present solicitors in August or September 2004, is less immediately understandable. There was a two year eight month delay between their retainer and the bringing of this application. The evidence capable of providing an explanation for this delay is sparse.

Ms Ward was by then 30 years old but the evidence does not suggest she had improved her position in life since the time of the accident when she was employed full time by Hungry Jacks Pty Ltd and earning less than $600 a week gross. Her present solicitor deposed that he became aware of the seriousness of the original solicitor's illness only shortly before bringing this application last May. This leads me to infer that this information was the catalyst for Ms Ward's present solicitor advising her and her instructing him to bring the present application.

On this evidence, I find it improbable that Ms Ward made a decision not to pursue her statute barred claim against Suncorp independently of the advice she received from her present solicitor. I also infer that the advice he initially gave to Ms Ward was based on his misapprehension of the nature and extent of the original solicitor's illness and resulting incapacity at the time of the expiry of the agreed extended limitation period. In my view, the preferable inference from the very limited evidence before the Court on this issue is that when Ms Ward retained her present solicitors she again acted on their expertise in protecting her legal interests and that she accepted their initial advice to pursue an action for damages against her original firm of solicitors rather than to bring an application under s 57(2)(b). This advice was based on a misapprehension as to the seriousness of the original solicitor's mental illness at the expiry of the agreed extended limitation period. When her present solicitor became aware of the true facts, he changed his advice. Ms Ward acted on this new advice to bring the present application. Whilst the explanation from Ms Ward's present solicitor for the delay in bringing this application is lacking detail, he was right to consider that its prospects of a success were considerably improved if the delay prior to the expiry of the agreed extended limitation period was attributable to her original solicitor's debilitating serious mental illness rather than incompetence. I accept on balance that, in the unusual combination of circumstances here, the long delay in bringing this application after Ms Ward retained her present solicitors was not personally attributable to her.

The respondents have admitted liability. Ms Ward has been examined by expert medical practitioners who apparently support her claim. The evidence does not suggest she is unlikely to obtain an award of damages if her application under s 57(2)(b) is granted.

When considering the question of prejudice to the respondents, it is of great significance that Suncorp admitted liability at an early stage and has had the benefit of an early and detailed complying notice of claim from Ms Ward as well as timely medical reports, including one from its chosen orthopaedic surgeon. Suncorp does not point to any specific prejudice it might suffer if this application were granted. It does contend that the very lengthy delay of more than six years means that it will inevitably suffer general prejudice in any subsequent trial, especially as it may be difficult for it to establish that Ms Ward's present injuries were caused by something other than the accident. The risk of such prejudice to the respondents is real but not on its own so significant as to require Ms Ward's application to be refused. The issue of general prejudice is one which will also apply to Ms Ward. On the other hand, the passage of time may actually clarify some issues relating to the quantum of damages.

By contrast to the theoretical possibility of some minor general prejudice to Suncorp were Ms Ward's present application granted, its refusal would close her out of her claim against the respondents in circumstances where they have admitted liability and only quantum remains in issue.

In light of the admission of liability and the early identification of the issues to be determined, I am satisfied that the granting of this application is not likely to result in a trial which is unfair to the respondents.

The final matter relevant in this case is whether parliament's intention evident from s 57(2)(b) in its statutory context requires the refusal of Ms Ward's application. The terms of s 57(2)(b) are wide and unfettered but must be interpreted in statutory context. It provides a discretion which must be exercised judicially, taking into account all relevant factors, which will often vary from case to case.

The long title of the MAIA is "[a]n Act to provide for a compulsory third-party insurance scheme covering liability for personal injury arising out of motor vehicle accidents, and for other purposes".

Some of the objects of the Act, set out in s 3, are relevant in interpreting s 57(2)(b). The refusal of Ms Ward's application might "encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents" (s 3(c)) by closing her out of her claim even though the insurer had admitted liability, but it would do nothing "to continue and improve the system of compulsory third-party motor vehicle insurance" (s 3(a)) or "to establish a basis for assessing the affordability of insurance under the statutory insurance scheme …" (s 3(aa)) or "to promote and encourage, as far as practicable, the rehabilitation of claimants who sustain personal injury because of motor vehicle accidents" (s 3(d)) or "to promote measures directed at eliminating or reducing causes of motor vehicle accidents and mitigating their results" (s 3(f)). Section 57 in its terms makes plain that parliament intended judges to have a discretion to extend the time in which a claimant may bring a court proceeding based on a claim under the Act even though the period of limitation has expired. Section 57(2)(b) contains no temporal limits. I am unpersuaded that the parliamentary intent evident from the MAIA necessitates the refusal of this application solely because of the delay of over six years since the accident.

In my assessment, a consideration of the relevant competing factors favours the granting of Ms Ward's application. Liability has been admitted. The delay, though regrettably lengthy, has been through a series of misadventures, none of which were Ms Ward's personal fault. The respondents will suffer no obvious prejudice and it seems entirely possible to have a fair trial of the remaining quantum issues between the parties. The overriding consideration of the interests of justice favours the granting of the application. In the absence of demonstrated prejudice to the respondents, the fairest outcome is surely that the original tortfeasor who directly caused Ms Ward's injuries should bear the resulting loss.

I would allow the appeal with costs, set aside the orders of 4 June 2007 and instead I would give the orders sought by the appellant at first instance.

FRASER JA: The appellant appeals against the refusal of her application under s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) ("the MAIA") to be allowed to bring a proceeding based on a motor vehicle accident claim notwithstanding the expiry of the limitation period.

Statutory Background

Section 57 provides (so far as is presently relevant):

"57Alteration of period of limitation|

(1)If notice of a motor vehicle accident claim is given under division 3, or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.

(2)However, the proceeding may only be brought after the end of the period of limitation if it is brought within—

(a)6 months after the notice is given or leave to bring the proceeding is granted; or

(b)a longer period allowed by the court."

Section 57 appears in Division 6 of Part IV of the MAIA, immediately following provisions in earlier divisions which set up a scheme compliance with which might, in some cases, render it impracticable or difficult for a plaintiff to commence proceedings in court within the limitation period.

The objects of the MAIA and the scheme were summarised in Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378; [2004] QCA 480; in the judgment of McMurdo P in the following terms:

"[4]The objects of the Act include the continuing improvement of the system of compulsory third party motor vehicle insurance and of the scheme of statutory insurance for uninsured and unidentified vehicles operating in Queensland;⁴ to establish a basis for assessing the affordability of insurance under the statutory insurance scheme and to keep the costs of insurance at a level the average motorist can afford;⁵ to encourage the speedy resolution of personal injuries claims resulting from motor vehicle accidents;⁶ to promote and encourage as far as practicable the rehabilitation of claimants who sustain personal injury because of motor vehicle accidents;⁷ and to promote measures directed at eliminating or reducing causes of motor vehicle accidents and mitigating their results.⁸

[5] The Act establishes a scheme which required the claimants here to give written notice of their motor vehicle accident claims to their insurers under Pt 4 Div 3 of the Act before bringing their actions in a court.⁹ Unless the insurer waives compliance with the notice provisions under the Act¹⁰ or the insurer is presumed to be satisfied notice has been given under the Act,¹¹ a claimant who has failed 'to give notice of a motor vehicle accident claim as required under' Pt 4 Div 3 of the Act is prevented from proceeding further with the claim unless the claimant successfully applies to the court for a declaration 'that the claimant has remedied the noncompliance'¹² or 'authorises further proceedings based on the claim despite the noncompliance'.¹³

[6] The scheme next provides that the insurer is obliged to take steps to resolve the claim within six months after receiving notice of it under Pt 4 Div 3¹⁴ and is taken to receive that notice either when the insurer waives compliance with any requirement that has not been met or is satisfied the claimant has taken reasonable action to remedy the non-compliance¹⁵ or when the court makes a declaration or gives leave¹⁶ in the terms set out in the previous paragraph. The notices in the appeal and applications were all considered by the insurers to be notices which complied with the relevant provisions of the Act.

[7] Since the 2000 amendments to the Act¹⁷ in addition to the notice requirements, (also amended at that time), a claimant is required before bringing the action in court to comply with Pt 4 Div 5A of the Act. This requires the claimant and the insurer to have a compulsory conference within six months after the claimant gives notice of the claim¹⁸ or, if that date has passed, at a reasonable time and place nominated by the party calling the conference.¹⁹ The parties may for good reason agree to dispense with the compulsory conference or may apply to a court for an order either fixing the time and place for it or dispensing with it for good reason and for other appropriate orders.²⁰ By the time of the compulsory conference each party is expected to be ready for trial, to have prepared a certificate of readiness to that effect²¹ and to have supplied the other party with all material relevant to the claim and its costs.²² The parties are to exchange mandatory final offers if the claim is not settled at the conference²³ although the court may on application dispense with that obligation.²⁴ An action for damages is to be started in court within 60 days after the compulsory conference²⁵ or within a further period agreed by the parties within that 60 day period²⁶ or fixed by the court on the claimant's application within that period.²⁷ Failure to commence the action within that time does not prevent the claimant from starting an action²⁸ unless the court makes an order fixing a time limit within which the action must be started.²⁹"

This statutory context provides guidance as to the factors relevant to the exercise of the discretion conferred by s 57(2)(b). In Winters v Doyle & Anor [2006] 2 Qd R 285; [2006] QCA 110, Keane JA said:

"[24]It can be seen that each member of this Court in Morrison-Gardiner v Car Choice Pty Ltd identified, as a consideration of central relevance to the proper exercise of the discretion conferred by s 57(2)(b) of the MAI Act, the relationship between the delay which has occasioned the need to seek relief from the operation of the statutory time bar and the plaintiff's attempts to comply with the requirements of the MAI Act. A plaintiff will usually be able to show good reason for the favourable exercise of the discretion conferred by s 57(2)(b) only if he or she can show that the delay which occurred was occasioned by a 'conscientious effort to comply' with the MAI Act.

[25]The Court also identified the possibility that the defendant would be unfairly prejudiced by the granting of the application as a consideration relevant to the exercise of this discretion. That this is so is explicit in the reasons of Williams JA, and it is apparent by inference from the reasons of McMurdo P by reason of her Honour's reference to the reasons of McHugh J in Brisbane South Regional Health Authority v Taylor which make that point. Further, there can be no doubt that, when Chesterman J spoke of the evident purpose of s 57(2)(b) as being to enable 'justice to be done', his Honour had in mind the doing of justice by a fair trial on the merits of the case.

[26]It should be emphasised that an explanation for delay which shows that the delay was associated with the plaintiff's attempts to comply with the requirements of the MAI Act, and evidence negativing of the possibility of unfair prejudice to the defendant, are not conditions precedent to the enlivening of the power conferred by s 57(2)(b) of the MAI Act. Rather, they are considerations relevant to the proper exercise of that power . . .."

Fryberg J recorded his agreement that the power conferred by s 57(2)(b) of the MAIA was unfettered by any condition precedent and said, at [56]:

"The discretion is at large. Considerations relevant to the exercise of the discretion are well-known and there is no challenge in this application to the decision in Morrison-Gardiner. They include whether the delay was occasioned by the need to comply with the Act. That is an important, but not a dominating consideration. Its existence favours an extension of time. Its absence is by no means fatal to such an extension."

Factual Background

The appellant sustained personal injuries in a motor vehicle accident on 8 March 2001.

On 13 March 2001, the appellant consulted her solicitor in relation to a possible claim for damages arising out of that accident.

On 11 April 2001, the solicitor sent a "notice of accident claim" to the second respondent, the relevant third party insurer. It is common ground that this notice complied with the requirements of Division 3 of Part IV of the MAIA.

In that notice, the appellant attributed liability for the accident solely to the driver of another vehicle who, the appellant claimed, collided with the appellant's stationary vehicle after driving through a red traffic light. The claim form identified the names and contact details of two witnesses to the accident and the name of a police officer who was said to have attended. It attached a medical certificate completed by the appellant's treating doctor which described the appellant's injuries and certified that they were consistent with the circumstances of the accident described to the doctor.

Some five months later, on 13 September 2001, the second respondent wrote to the appellant's solicitor noting that the second respondent had informed itself of the circumstances of the motor vehicle accident and admitting liability in full.

There was then a long period of delay. No step was taken to progress the appellant's claim between September 2001 and September 2002, save that the appellant’s solicitor obtained a copy of the appellant’s doctor’s report and other records on 25 March 2002 and 24 June 2002 respectively.

In late September 2002, the appellant's solicitor returned to the matter. He gathered the evidence which he considered necessary to support the appellant's quantum claim, including a report from an orthopaedic surgeon (which he received on 22 October 2002) and a report from a psychiatrist (which he received on 15 November 2002). The appellant's solicitor had made appointments for the appellant for those doctors in September 2002. The respondents accepted in this appeal that it should be inferred that this material was provided to the second respondent.

After that burst of activity, no step was taken to progress the appellant's claim between late 2002 and at least 10 November 2003 (when the appellant's solicitor deposed that he forwarded to the second respondent an offer of settlement, which the second respondent's relevant employee denied receiving).

On 14 February 2004, the appellant’s solicitor sent an offer of settlement (or, on his evidence, a further offer) to the second respondent. There was no response to that offer, but on 24 February 2004, the second respondent required the appellant to undergo a medical examination by an orthopaedic surgeon.

It then became clear that the requirements of Division 5A of Part IV of the MAIA could not be complied with before expiry of the limitation period on 8 March 2004, with the result that on 3 March 2004 the second respondent agreed to extend the limitation period. That agreement is recorded in a letter from the second respondent to the appellant's solicitor of 3 March 2004 in the following terms:

"The limitation period in respect of your client's claim expires on 8 March 2004. The requirements of Division 5A have not been complied with and are unlikely to be complied with prior to 8 March 2004.

Suncorp agree to extend the limitation period until 8 June 2004 in which time both parties agree to comply with the requirements of Division 5A."

By the letter, the second respondent also sought further particulars of the appellant's employment history and other information relevant to the quantum of the appellant's claim. There is no evidence that this material was provided to the second respondent, but it was accepted on behalf of the respondents during argument in the appeal that the appellant’s omission to supply this material to the second respondent would not result in actual prejudice if the limitation period were extended.

There was some unavoidable delay in the required medical examination, with the result that the doctor's report was not received by the appellant's solicitor until 24 May 2004. That report appears to have been the last step towards progressing the appellant’s claim against the second respondent.

Despite the 3 March 2004 agreement quoted above, it is common ground that neither party attempted to arrange a compulsory conference under s 51A of the MAIA before the expiry of the "extended" limitation period on 8 June 2004. It is common ground that it would not have been practicable to hold that conference and fulfil the statutory obligation under s 51C to exchange mandatory final offers before the expiry of the "extended" limitation period.

On 31 August 2004, the second respondent sent to the appellant's solicitor a "notice of past benefits dated 15/05/2004". The letter described the notice as having been sent pursuant to s 47 of the MAIA, a provision which obliges insurers to co-operate with claimants. It is curious that this occurred after expiry of the "extended" limitation period, but there is no suggestion that the appellant was aware of this letter or acted in reliance on it.

There was no challenge by the second respondent to the evidence which established that a reason for some of the appellant’s delay in progressing her claim was that her solicitor was debilitated by diabetes (for which he was diagnosed in March 2002) and also by a serious psychiatric illness which was likely to have commenced in mid-2002, well before the expiry of the "extended" limitation period on 8 June 2004.

Despite the dilatory conduct of the appellant's claim, there was no challenge to the evidence that the failure to commence proceedings before that time was not caused by any personal default by the appellant. She was considered by her solicitor to be a co-operative client and keen to have her claim resolved. She responded appropriately to all requests for information. The evidence was to the effect that in that period the appellant relied entirely on her solicitor and had no personal responsibility for his failure to take the appropriate steps within the extended limitation period.

The appellant was first told that there was a problem with her claim when she was asked to attend the office of her solicitor in or about late August 2004. At that time she was told by a different solicitor representing the same firm that the time for instituting her proceedings had passed without proceedings being commenced. She was also told that the second respondent had refused to extend the limitation date.

In about August or September 2004,³⁰ the appellant instructed her current solicitor to act for her. He later caused proceedings to be brought against the appellant’s former solicitor claiming damages for the lost opportunity to claim damages against the second respondent.

The appellant took no further step to pursue her former claim against the respondents until, on 11 May 2007, the plaintiff filed an application for orders pursuant to s 57(2)(b) of the Act allowing her to commence proceedings against the respondents within 60 days after one of the following events, namely, the holding of a conference under ss 51A and 51B of the MAIA, the parties agreeing to dispense with that conference pursuant to s 51A, or the Court making an order pursuant to s 51A(5)(b) to dispense with the holding of the conference.

The appellant's current solicitor deposed in his affidavit sworn on 22 May 2007 that although he learned in August 2004 that the appellant's former solicitor had had "a breakdown" he did not become aware of the severity of that illness "until recently".

The judgment

After summarising the background to the application and relevant provisions of the MAIA, her Honour, under the heading "The principles relevant to s 57(2)(b)", said:

"[20]The discretion conferred by s 57(2)(b) was considered by the Court of Appeal in Morrison-Gardiner v Car Choice Pty Ltd & Anor [1] and Winters v Doyle & Anor [2].

[21]The following principles may be drawn from those cases:

It is necessary for the applicant to demonstrate that the delay in the claim was occasioned by attempts to comply with the MAIA. As enunciated by Keane JA in Winters v Doyle & Anor [3].

'A plaintiff will usually be able to show good reason for the favourable exercise of the discretion conferred by s. 57(2)(b) only if he or she can show that the delay which occurred was occasioned by a ‘conscientious effort to comply’ with the MAI Act.'

and [4].

'It is to be emphasised that the issue ... is not whether the plaintiff may reasonably be excused for having relied upon his solicitor to comply with the requirements of the MAI Act. The issue is whether the delay which occurred was related to compliance with the MAI Act.'

In that case, proceedings were not instituted because of a failure on the part of the plaintiff's solicitor to diarise the limitation date. In those circumstances, his Honour found [5].

'One must conclude that the delay which led to, and followed, the expiration of the limitation period was not materially affected by the need to comply with the procedural requirements of the MAI Act or any mistake by the plaintiff or his solicitors in that regard. As a result, one cannot say that the plaintiff's attempts to comply with the MAI Act in relation to his claim afford a reason for the favourable exercise of the discretion in s. 57(2)(b) of the MAI Act.'

The applicant bears the onus of showing that the discretion to permit the matter to proceed to trial should be exercised in his favour: Brisbane South Regional Health Authority v Taylor [6] cited by Keane JA in Winters v Doyle & Anor [7].

It is relevant to consider whether, due to the lapse of time, the insurer has suffered prejudice."

Her Honour summarised the appellant's submissions and then expressed her Honour's reasons for refusing the application in the following terms:

"Should the discretion be exercised?

[33]It should be noted that there were significant periods of delay within the limitation period. In particular from September 2001 to September 2002 and from December 2002 to November 2003. Clearly there has been a delay of two years within the three year limitation period.

[34] There has also been no real explanation for the period of delay from August 2004 to the filing of this application on 14 May 2007, a period of almost three years. That delay does not involve any connection with the requirements of the MAIA. The claim has in fact lain dormant for three years.

[35] I accept that in this case the second respondent cannot point to any significant prejudice given the fact that liability was admitted and the applicant had been independently examined. In a similar situation which arose in the decision of Paterson v Kurcharzynk [9] Wilson DCJ held:

'More than three years have passed since the applicant first complained of these symptoms to his solicitors. This aspect of the delay is inordinate, and exacerbates the reasonable concern that the insurer may not, now, be able to conduct useful investigations. At best for the applicant it can only be said that the nature and extent of the difficulties confronting the insurer, consequent upon the delay, are unclear.

The delay since the expiry of the limitation period is not referrable to any difficulties associated with the procedural requirements of the MAIA and is solely rather the product of inaction.'

[36] It has to be said that in the present case the delay of three years is similarly the product of inaction and is not referrable to any difficulties with the procedural requirements of the MAIA.

[37] In the present case, as has been set out above, the onus is on the applicant to demonstrate that the two year delay during the limitation period and the three year delay since the limitation period expired was due to the applicant’s attempts to comply with the MAIA. Furthermore the attempts to comply must show a 'conscientious effort'.

[38] Furthermore as Keane JA said in Winters v Doyle & Anor[10]:

'It should be emphasised that an explanation for delay which shows that the delay was associated with the plaintiff’s attempts to comply with the requirements of the MAI Act, and the evidence negativing of the possibility of unfair prejudice to the defendant, are not conditions precedent to the enlivening of the power conferred by s 57(2) (b) of the MAI Act. Rather, they are considerations relevant to the proper exercise of that power.'

[39] As Chesterman J held in Morrison – Gardiner v Car Choice Pty Ltd [11]:

'The discretion is likely to be exercised favourably only in those cases where a claimant’s circumstances make it difficult to comply with the requirements of the Act, and commence proceedings within three years or where, despite making conscientious efforts to comply with the requirements of the Act, a claimant nevertheless does not do so within three years of the accident…Claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them are unlikely to obtain an extension of time though, of course, each case must be decided on its individual merits.'

[40] Whilst there is an argument that within the limitation period that delay was referable to attempts to comply with the MAIA, the applicant has failed to satisfactorily explain the delay in the last three years."

Error in the exercise of the discretion

The appellant contends that the learned primary judge erred by treating as necessary for a favourable exercise of the discretion an explanation for the delay after expiry of the limitation period that attributed it to attempts by the appellant to comply with the MAIA.

It appears that the absence of a satisfactory explanation for delay in bringing the application after expiry of the limitation period motivated the primary judge to dismiss the application.

The primary judge considered that the appellant’s explanation for that delay was unsatisfactory for two, related reasons: first, it was the product of inaction and, secondly, it was not related to attempts to comply with the MAIA: see paragraphs [34] and [36] of her Honour's reasons.

I respectfully agree that the delay was not satisfactorily explained. If that were simply one of the matters given weight in her Honour’s decision to reject the application, then it would not provide a basis for this Court’s intervention in this discretionary decision. The appellant’s submission, however, was to the effect that her Honour acted on the view that the second of those two reasons necessarily demanded rejection of the application. In my respectful opinion, that submission must be accepted.

In the first sentence of paragraph [21] of the judgment of the primary judge, under the heading "The principles relevant to s 57(2)(b)", her Honour held that one of the principles to be drawn from Morrison-Gardiner v Car Choice and Winters v Doyle & Anor was that it is "necessary" for the applicant to demonstrate that the delay in the claim was occasioned by attempts to comply with the MAIA.

The primary judge referred back to this view when her Honour observed, in paragraph [37] of the judgment, that "as has been set out above" the onus was on the appellant to demonstrate that the periods of delay during the limitation period and after the expiry of the limitation period were due to the appellant's attempts to comply with the MAIA.

The respondent submitted that the passages quoted in paragraphs [38] and [39] of the judgment show that her Honour appreciated that her discretion was not confined by any such requirement. The better view is to the contrary. Although it is arguable that her Honour’s view earlier expressed in paragraph [21] was contradicted in the quoted passages, no such contradiction was acknowledged in the judgment. There is nothing in her Honour’s reasons to displace the unambiguous expression of view in paragraph [21].

The appellant’s submission must therefore be accepted that the primary judge dismissed the application by applying her Honour's view that for the appellant to succeed it was necessary for her to demonstrate that her delay was occasioned by attempts to comply with the MAIA.

The primary judge thereby acted on a wrong principle, in my respectful opinion.

Winters v Doyle & Anor establishes that the relationship between any delay in commencing proceedings and attempts to comply with the statutory scheme is a relevant and important matter for the Court’s consideration; it may in a particular case be a decisive consideration in favour of exercising the discretion under s 57(2)(b) to extend time.

On the other hand, it is equally clear that proof of such a relationship cannot be regarded as indispensable to the favourable exercise of discretion. There are other potentially relevant considerations, the significance of which will depend on the facts of each case.

For example, the MAIA contemplates that ordinarily, before any claim is brought in a court, the claimant will have given a notice to the insurer that, coupled perhaps with further information later sought by the insurer (the production of which can be compelled), will enable the insurer to complete its investigations and make a reasonable estimate of the claimant’s potential damages claim: ss 37, 37A, 41, 45, 46A. The Act contemplates that the insurer ordinarily will be able to decide if it should admit liability within six months of its receipt of the notice under s 37: s 41.

Compliance by a claimant with those provisions is apt also to ameliorate prejudice that otherwise might flow from an extension of the limitation period under s 57(2)(b). Section 57 provides that the fact that such a notice of claim has been given before expiry of the limitation period is a basis upon which a claimant may rely to justify suing after expiry of the limitation period. Whilst the strength of this consideration as a discretionary factor might vary from case to case, it is plainly one of the relevant considerations in favour of the exercise of the discretion to extend time: Morrison-Gardiner v Car Choice Pty Ltd per Williams JA at [31]; per Chesterman J at [78].

To elevate any one such consideration to a position of decisive importance in all cases would be to confine the discretion. A remedial discretion conferred in general terms upon a court it is not readily to be confined by the implication of a limitation not expressed in the grant of the discretion: FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, 283, 286, 290,[1988] HCA 13; Knight v FP Special Assets Ltd (1992) 174 CLR 178, 205, [1992] HCA 28; The Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404, 421, [1994] HCA 54.

There is here no basis for making any implication in s 57 which would confine the discretion. So much was confirmed by this Court’s decision in Spencer v Nominal Defendant [2007] QCA 254. Of direct relevance to this appeal is the holding in Spencer that proof of a relationship between compliance with the MAIA and the relevant delay is not necessary for a favourable exercise of the discretion. Keane JA (with whose reasons de Jersey CJ and Mullins J agreed) said, at [15] - [16]:

"[15]The final observation to be made here is that, with all respect to the learned primary judge, it is undesirable to attempt to put a gloss upon the decisions of this Court in Morrison-Gardiner v Car Choice Pty Ltd or Winters v Doyle & Anor by elevating the discretionary consideration whether 'the delay which occurred was related to compliance with the Act' to a consideration which is regarded as 'crucial' or as 'necessary' for the favourable exercise of the discretion conferred by s 57(2)(b) of the Act.

[16] As the decisions of this Court confirm, the reason for delay is one, albeit an important one, of the considerations bearing upon the determination of whether good reason has been shown to exercise the discretion conferred by s 57(2)(b) in favour of the grant of an extension of time. That discretion is conferred to ensure that the need to comply with the Act does not prevent a claimant with a good case from having that case fairly tried. In the light of this appreciation of the purpose of s 57(2)(b), the considerations which bear upon the proper exercise of the discretion can be fairly readily discerned. Considerations other than the need to comply with the Act which will usually be relevant in this regard are the length of delay, whether there has been a general lack of diligence in the prosecution of the claim, whether the prospects of a fair trial of the claim have been diminished, and the circumstance that the exercise of the discretion is apt to deny the respondent a complete defence to the claim. The weight to be accorded to these considerations in any particular case is a matter for discretionary assessment."

The primary judge therefore misdirected herself by holding that it was necessary for the applicant to demonstrate that the delay in the claim was occasioned by attempts to comply with the MAIA. For the reasons I have given, I think the better view is that this error influenced the primary judge’s decision. Accordingly, this Court is obliged to exercise the discretion afresh.

Exercise of the discretion

The fact that the exercise of the discretion in the appellant’s favour would destroy the respondent’s existing defence to the appellant’s claim under the Limitation of Actions Act 1974 (Qld) is significant: Winters v Doyle & Anor at [34]. I do not accept the appellant’s contention that, in this case, the significance of this consideration is diminished by the presence of the power to extend time in s 57 of the Act. The power is premised on the continuing operation of the general provision of the Limitation of Actions Act 1974 (Qld). It, like the power in s 31 of the Limitation of Actions Act 1974 (Qld), is not to be treated as having a standing equal to the general limitation provision: c.f. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, at 553 per McHugh J (Dawson J agreeing); [1996] HCA 25.

The appellant’s counsel justified the contention by reliance upon an observation of Chesterman J in Morrison-Gardiner v Car Choice Pty Ltd:

"[80]In reality the provisions of the Act have superseded the operation of the Limitation of Actions Act 1974 as it applies to claims for damages for personal injuries caused by motor vehicle accidents. The statutory obligation to commence such actions within three years is an additional requirement to those imposed by the Act. It is the Act which imposes more, and more immediate, limitations on the times within which a claimant must make a claim for damages and proceed with that claim. It is not surprising that Parliament should, as part of the legislative scheme governing the processes for making a motor vehicle accident claim, confer power on the court to extend the period imposed by the Limitation of Actions Act whose application to the claim has been largely supplanted."

The appellant’s submission divorces his Honour’s observation from its context. In that case, unlike in this one, the applicant applied for an extension promptly after the expiry of the limitation period. The only question (which was answered affirmatively) was whether s 57 empowered the court to extend time where the applicant had not complied with Division 5A in time to institute proceedings within three years. I would not construe his Honour’s observation as meaning that where, as here, an applicant has neglected both to sue within the limitation period and to apply for an extension of time until years after expiry of the limitation period, the Limitation of Actions Act 1974 (Qld), or the rationale underlying it, has been displaced by the enactment of MAIA.

The onus remains on the applicant to establish grounds for the favourable exercise of the discretion: Winters v Doyle & Anor at [43], applying Brisbane South Regional Health Authority v Taylor, at 544 per Dawson J, at 547 per Toohey and Gummow JJ and at 551 and 553-554 per McHugh J.

Plainly the second respondent’s late requirement for an independent medical examination was a material cause of the appellant’s need for an extension. It produced a situation in which it was impossible both to hold the compulsory conference (under s 51A) and to obey the 14 day moratorium of proceedings for consideration of the compulsory final offers (under s 51C(6)) before expiry of the limitation period.

That was not the only reason for the appellant's predicament, however. Dilatory conduct of the appellant’s proceedings also substantially contributed to the same result. The appellant’s claim was virtually dormant for nearly two of the three years after she gave notice of claim and until the original limitation period expired.

On the evidence, the appellant was not personally responsible for any of this delay. Her evidence and her solicitor’s evidence, which was unchallenged, establish that she reasonably relied on her then solicitor to sue in time. This is a relevant consideration in her favour: Sophron v The Nominal Defendant (1957) 96 CLR 469, 474, [1957] HCA 27; Morrison-Gardiner v Car Choice Pty Ltd at [16], per McMurdo P; Winters v Doyle & Anor at [34], per Keane JA.

In addition, the second respondent must bear some responsibility for the delay prior to the expiry of the limitation period. As Chesterman J pointed out in Morrison-Gardiner v Car Choice Pty Ltd at [79], the MAIA gives the insurer a statutory right "to force the pace": under ss 45 and 46A, claimants are obliged to cooperate with the insurer and to undergo reasonably required medical examinations.

I would add that the second respondent was obliged by s 41(2) of the MAIA to make a fair and reasonable estimate of the damages and make a written offer of settlement to the appellant as soon as practicable after receipt of the notice of claim. The proposition advanced on the second respondent’s behalf that an insurer is entitled, for reasons of "practicality" or "practice", to wait for the compulsory conference before making a rational offer to settle the clam should be rejected, in my view. It is contradicted by the expressed objects and terms of the legislation.

In the result, the appellant has established that the necessity to comply with the MAIA contributed to her inability to sue in time. That is important. Her delay of some two years in pursuing the processes required by the MAIA weighs against her claim for an extension under s 57 of that Act, but for the reasons I have given I would attribute less weight to that factor.

Significantly, the appellant gave an early and detailed notice of claim; she provided medical reports and other relevant information; liability was admitted after investigation; and the appellant was independently examined promptly or, at least, as promptly as the second respondent apparently wished. The second respondent, who controls the litigation for the respondents, accepted the appellant's claim so that the issue concerns quantum only. The second respondent also accepted that it had not demonstrated by evidence that any significant prejudice would result from the claimed extension. It seems likely that a fair trial may still be held, despite the lapse of time.

In Brisbane South Regional Health Authority v Taylor, Toohey and Gummow JJ treated the question whether a fair trial was still likely as being the real question there in issue. Their Honours observed, at 550, that if the delay has not made the chances of a fair trial unlikely there was no reason why the discretion should not be exercised; and see also per McHugh J (Dawson J agreeing) at 555. This consideration supports the appellant’s application.

Nevertheless, I am not persuaded that the discretion should be exercised in the appellant’s favour.

Whilst there was no demonstrated prejudice to the respondents and a fair trial is likely if an extension is granted, there remains the possibility of prejudice created by the appellant’s apparent decision to abandon her claim against the second respondent in favour of proceedings against her former solicitor.

As was submitted for the second respondent, one example of the possible prejudice concerns the possibility that the appellant might now make a larger claim on the premise that her incapacity has increased beyond that reported in the early medical reports. The second respondent might be held liable for such a claim if it could not introduce evidence that showed that the appellant’s additional incapacity was attributable to some cause other than the accident: Watts v Rake; (1960) 108 CLR 158, 160, 164; [1960] HCA 58; Purkess v Crittenden; (1965) 114 CLR 164, 167-168, 171; [1965] HCA 34. The second respondent might in such a case be prejudiced by the appellant’s delay in pursuing her claim, because it might be difficult for it now to obtain such evidence.

The possibility of prejudice on this basis is speculative; but it has that character partly because the appellant’s evidence did not explain, as it easily might have done, whether or not the damages she now wishes to claim are of the order originally sought and whether or not her claim would be premised upon the nature and extent of whatever incapacity is described in the original medical reports. This is one example of the unsatisfactory nature of the evidence adduced by the appellant in this application.

It is also relevant that the observations of Toohey and Gummow JJ in Brisbane South Regional Health Authority v Taylor mentioned earlier were made in a different factual and statutory context. They concerned the correct approach to the exercise of the discretion in an application under s 31 of the Limitation of Actions Act 1974 (Qld) after the pre-conditions for its exercise had been satisfied. Here, regard must be had also to the objects of the MAIA.

Those objects of the MAIA include, significantly, the encouragement of the speedy resolution of personal injuries claims resulting from motor vehicle accidents. Delay is, of course, a relevant consideration in an application under s 31 of the Limitation of Actions Act 1974 (Qld), but its importance in the present context is emphasised by the MAIA. True it is that s 57(2)(b) assumes the prior expiry of the limitation period (and, indeed, that it might have expired 6 months before the application), but nevertheless this expressed object of the statutory scheme is not to be overlooked. It is an important consideration in the exercise of the discretion under s 57(2)(b): Morrison-Gardiner at [81], per Chesterman J; Spencer v Nominal Defendant at [11], [16].

Some of the rationales for the enactment of limitation periods identified by McHugh J in Brisbane South Regional Health Authority v Taylor at 551-553, remain relevant here even though a fair trial is probably still possible. The public interest requires that disputes be settled as quickly as possible and people (and insurance companies) should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. These are relevant considerations when an applicant seeks to displace the defence under the statute: Brisbane South Regional Health Authority v Taylor, per McHugh J at 554.

I would also reject the appellant’s contention that her inordinate delay was explained by reference to the appellant's current solicitor being unaware, until recently, why no step had been taken to protect the interest of the appellant during the agreed limitation period.

The only evidence on that topic was a statement in the current solicitor’s affidavit that, although he was advised in August 2004 that the appellant’s former solicitor had had "a breakdown", "I was not aware of the severity of his illness until recently." The reference to a "breakdown" left uncertain the period during which the former solicitor was adversely affected and the severity of that effect. If anything relevant was added by the more recent acquisition of knowledge about the severity of the illness causing the breakdown it was not revealed by the evidence. There was no evidence which suggested that the reason why the application was not earlier brought was because of a deficiency in the extent of the appellant's knowledge, or her current solicitor’s knowledge, about the severity of her former solicitor’s illness.

Contrary to the submission for the appellant, no inference to that effect should be drawn in the appellant’s favour. In Winters v Doyle & Anor, Keane JA said, at [34], that "it will often be the case that the nature and extent of a client's reliance upon his or her solicitor, and the plaintiff's lack of personal responsibility for the delay which has occurred, can be satisfactorily explained only if the evidence includes an affidavit from the client." Here, both the client and the solicitor swore an affidavit but neither of them explained why the appellant had waited for nearly three years before bringing the application. That omission stands in marked contrast to their evidence about the delay in the earlier period.

In the absence of evidence on the topic from the appellant and her current solicitor, I accept the submission made for the second respondent that the application should be assessed on the premise that the appellant might have made a conscious decision, informed by legal advice from her current solicitor, not to seek to pursue her statute barred claim against the second respondent.

In Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36, a question arose in an analogous context concerning the relative responsibilities of a plaintiff and the plaintiff’s solicitor for failure to sue in time. Barwick CJ said, at 435:

"A conscious decision by a litigant to take a particular course after appreciating the relevant evidence and considerations in the light of which a decision is to be taken may very well in some circumstances lead directly to the conclusion that it would not be just to allow him to resile and to have an extension of time in which to sue; or at any rate provide no reason for entertaining the application to extend the time."

In my view there would be an element of injustice in permitting the appellant now to resile from a decision not to sue the second respondent, and thereby to displace its defence to her claim, when so far as can be ascertained from her own evidence, she might have made a conscious and informed decision not to apply for an extension of time.

In these circumstances, the appellant’s failure to offer any explanation for her delay of some three years in applying for an extension after she took her last step to progress her claim is a consideration that weighs against her application: Sophron v The Nominal Defendant at 475 – 476.

Importantly, the appellant cannot reconcile the extension of time she seeks with the object of the MAIA that claims be resolved promptly, because her lengthy and unexplained delay after she took the last step to progress her claim in May 2004 was not a product of attempts to comply with the MAIA itself.

Having regard to that consideration and the other factors I have mentioned, I am not persuaded that it would be just to grant the extension sought by the appellant.

Orders

I would dismiss the appeal with costs.

MACKENZIE AJA: I agree with the orders proposed by Fraser JA. The sections of Fraser JA’s judgment concerning the statutory background and the factual background accurately summarise those matters. I also agree with his analysis of the reasons for judgment below and the conclusion that this Court must exercise the discretion afresh, for the reasons given by him.

Winters v Doyle & Anor [2006] 2 Qd R 285 establishes that explanation of delay by showing that it was associated with the plaintiff’s attempts to comply with the requirements of the Motor Accident Insurance Act 1994 (Qld) (“the MAIA”) and evidence negativing the possibility of unfair prejudice to the defendant are considerations relevant to the exercise of the power conferred by s 57(2)(b), not conditions precedent to enlivening it.

I generally agree with his approach to the proper re-exercise of the discretion. However, since there is a divergence of opinion as to the appropriate outcome, I will briefly enlarge on some factors that have reinforced me in that conclusion.

When the application was heard in the Trial Division there was an affidavit from the applicant which informed that, in about late August 2004, she received a message from the firm of solicitors representing her. As a result of that call, she consulted a locum at the office who informed her that the solicitor who had been dealing with the matter:

“...was away (and he told me why) and that he was acting for him”.

He also told her that the extended time for instituting proceedings had passed and that he had an unsuccessful discussion with the second respondent about a further extension of time. He recommended she seek independent legal advice, which she did. She appears to have done that promptly. In due course, her present solicitors commenced proceedings for professional negligence against the previous solicitors.

The affidavit from the solicitor who now acts for the applicant, sworn on 22 May 2007, is very brief. It informs only that the applicant consulted his firm in September 2004 and that although he had been told by the locum at the previous firm that the solicitor originally handling the matter:

“...had had what he termed a ‘breakdown’, I was not aware of the severity of the illness until recently.”

Medical evidence obtained in the first half of May 2007 showed that the original solicitor had been suffering from a major depressive illness of marked severity and that he would have been significantly depressed during the period when the matter went out of time. Although there is nothing in the evidence from the current solicitors about the progress of the action for professional negligence against the original solicitors, it is not unreasonable to infer that it had got to a point, at least, that it was considered worthwhile to attempt to re-enliven the MAIA proceedings, using that word to include preliminary steps as well. Possible uncertainty about the prospects of success in the professional negligence action, and the fact that only quantum would be in issue in the MAIA proceedings may objectively be thought to be factors in the equation for an advisor. A passing reference in one of the psychiatric reports may hint at this.

Having said that, and accepting that the solicitor was suffering from a serious mental illness at relevant times, there are two observations to be made. One is to what extent mental illness would play a part if that action went to trial (Carrier v Bonham [2002] 1 Qd R 474). The other is that there is a vacuum in the evidence itself as to whether there was a concern that the action in professional negligence might not be viable.

The most likely inference from the evidence (or lack of it) is that after the new solicitors become involved, a conscious decision was taken to treat the MAIA proceedings as a lost cause and to pursue the professional negligence proceedings. That raises, in my view, a different issue from entrusting the conduct of MAIA proceedings to a solicitor who for some reason allows the matter to run out of time. In that situation, provided the client is guilty of no significant personal default, the failings of the solicitor are not fatal to the client. A case where a conscious decision is made to pursue one kind of action and effectively, if not formally, abandon another is, in my view, of a different character from that, even if it is done on legal advice.

The case is not without difficulty. It carries with it the unfortunate possibility that unless the applicant succeeds in one or other of the proceedings presently on foot or perhaps in a third action, she will not recover damages she may otherwise have recovered. On the other hand, there is the uncertainty, not allayed by evidence, whether the second respondent may be prejudiced by deterioration in her condition due to additional supervening factors which the second respondent cannot practically disentangle from the consequences of the accident.

I agree with Fraser JA as to the critical issues with regard to the re-exercise of the discretion. I am satisfied that it would not be appropriate, in the very unusual circumstances of this case, to give leave to the applicant to resume prosecution of the proceedings under the MAIA. Leave to bring a proceeding after the end of the limitation period should be refused and the appeal should be dismissed with costs.

Footnotes

1. See Ward v Wiltshire Australia P/L & Anor [2007] QSC 144; BS No 4081 of 2007, 4 June 2007 at [21], [37] and [40]. ↩

2. Winters v Doyle & Anor [2006] 2 Qd R 285; [2006] QCA 110 at 296 [43]; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544 (Dawson J), 547 (Toohey and Gummow JJ) and 551 (McHugh J). ↩

3. See, by analogy, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544 (Dawson J) and 553 (McHugh J) cf at 550 (Toohey and Gummow JJ). ↩

4. Section 3(a) of the Act. ↩

5. Section 3(aa) of the Act. ↩

6. Section 3(c) of the Act. ↩

7. Section 3(d) of the Act. ↩

8. Section 3(f) of the Act. ↩

9. Section 37 of the Act. ↩

10. Section 39(1) of the Act. ↩

11. Section 39(3) of the Act. ↩

12. Section 39(5)(c)(i) of the Act. ↩