SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Keane JA, and there is nothing I wish to add thereto.  I agree with the orders proposed.

[2]  KEANE JA:  Mr Winters (to whom I shall refer as "the plaintiff") applied, pursuant to s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) ("the MAI Act"), for an extension of time within which to commence proceedings for damages against the respondents as a result of personal injuries suffered by the plaintiff in a motor vehicle accident which occurred on 9 February 2001.  That application was refused.

[3] The plaintiff wishes to appeal against the refusal of his application.  Because of the interlocutory nature of the order made below, an appeal to this Court lies only by leave pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld).  Since the effect of the refusal of the plaintiff's application is to prevent him from proceeding with his action for damages, it is convenient to move to a consideration of the substantive merits of the proposed appeal.  To that end, it is necessary first to summarise the factual and statutory background.  One may then address the considerations which bear upon the exercise of the discretion conferred on a court by s 57(2)(b) of the MAI Act, and proceed to a discussion of the judgment below and the plaintiff's arguments that it should be set aside.

Factual background

[4] The plaintiff gave the respondent AAMI a notice of claim pursuant to s 37 of the MAI Act on 31 May 2001.  By letter dated 18 June 2001, AAMI advised the plaintiff that it accepted that the notice of claim complied with the requirements of the MAI Act.  By a letter dated 20 July 2001, AAMI denied liability for the plaintiff's injuries.

[5] On 9 May 2003, the plaintiff's solicitors requested AAMI to waive the necessity for a compulsory conference under the MAI Act.  This request was denied on 20 May 2003.

[6] On 9 February 2004, the limitation period applicable to the plaintiff's claim expired.  On 18 March 2004, AAMI's solicitors wrote to the plaintiff's solicitors advising that the plaintiff's claim was statute-barred.

[7] On 16 June 2004, the plaintiff's solicitors wrote to AAMI's solicitors to bring to their attention the decision at first instance of Morrison-Gardiner v Car Choice Pty Ltd,[1] and to seek AAMI's consent to an order under s 57(2)(b) of the MAI Act allowing proceedings to be brought notwithstanding the expiration of the limitation period.  Thereafter, correspondence ensued in which AAMI's solicitors sought to have the plaintiff refrain from making an application to the court under s 57(2)(b) of the MAI Act until the decision of the Court of Appeal in Morrison-Gardiner v Car Choice Pty Ltd.[2]  That decision was delivered on 17 December 2004. 

[8] The plaintiff's application had been filed on 30 November 2004.  On 22 December 2004, AAMI's solicitors advised the plaintiff's solicitors that they were seeking their client's instructions in relation to the issues arising from the Court of Appeal decision in Morrison-Gardiner.  After some further correspondence, on 5 April 2005, AAMI's solicitors advised the plaintiff's solicitors that they would oppose the plaintiff's application.

[9] On 17 May 2005, the plaintiff's application was listed for hearing on 10 June 2005, but it was adjourned to afford the plaintiff the opportunity to establish the whereabouts of Ms Sasha King, a witness to the accident of 9 February 2001.

[10]  The application was heard on 3 August 2005.  It appears that, at this time, the plaintiff had been unable to locate Ms King.

[11]  The plaintiff's solicitor, Mr Carman, gave evidence by affidavit that in about November 2003 the plaintiff's solicitors moved offices.  At this time there was a failure of the systems within the office of the plaintiff's solicitors to alert them "to the pending limitation date".  Mr Carman deposed that "as a consequence of this failure the solicitors for the [plaintiff] did not obtain the necessary consent orders to allow them to institute proceedings despite non-compliance with the [MAI] Act and no proceedings were commenced within time".

[12]  Mr Carman deposed that the plaintiff "at all times confirmed his desire to maintain his action in regard to the accident".  In this regard, the plaintiff's solicitors obtained a medical report on the plaintiff's injuries from the Gold Coast Hospital on 29 April 2002.  On 3 October 2002, the plaintiff underwent a medico-legal examination by Dr Pentis.  On 6 February 2003, AAMI's solicitors provided the plaintiff's solicitors with a copy of the loss adjuster's report of 12 July 2001 obtained by AAMI.  The plaintiff attended on his solicitors in relation to his claim on 7 February and 24 March 2003.  On 1 April 2003, the plaintiff and his solicitors attended at the accident site, and took photographs and measured relevant distances.  And, as has been mentioned, on 9 May 2003 the plaintiff's solicitors wrote to AAMI requesting that AAMI waive the compulsory conference.  It may be noted that apart from AAMI's communication with the plaintiff's solicitors of 6 February 2003, there was no correspondence between the plaintiff and the respondents between 20 July 2001 and 9 May 2003.

[13]  As to the circumstances of the accident of 9 February 2001, the plaintiff made a statement to police shortly after the accident.  He said:

"I was heading to Lotus Creek Caravan Park.  I was heading south on Government Road and turned left into Whiting Street.  I was following two cars.  A white car in front of a white van.  They were going about 25 kmph in the 50 zone with no acceleration.  The guy in the van was tailgating the guy in the white car.  I then thought about overtaking because they weren't accelerating.  So I pulled out to the side to look for oncoming traffic.  I assumed they saw me.  I was sitting beside him.  I didn’t see an indicator, possibly because of the van or because he didn’t indicate early enough.  Then when I was beside him I saw the indicator and that's when I was hit …"

[14]  In the plaintiff's notice under s 37 of the MAI Act, in answer to the question:  "Who caused the accident and why?", the plaintiff stated:  "Gregory Doyle caused the accident as he suddenly turned right as Clint Winters was overtaking him."

In response to the request to "describe what happened", the plaintiff stated:

"Vehicle 2 [the plaintiff] was travelling behind two vehicles when he indicated and proceeded to overtake as the markings on the road were broken white lines.  As vehicle 2 proceeded to overtake, vehicle 1 [Mr Doyle] suddenly turned right into Wilson Street striking vehicle 2 causing the collision."

[15]  Mr Doyle suffered head injuries in the accident.  He told the police that he could not remember whether he was indicating at the time the accident occurred.  It appears that he can give evidence to the effect that, although he has no recollection of the accident, he believes, based on his habit when making the right turn into Wilson Street, a manoeuvre which he performed regularly, that he indicated his intention to turn right before he commenced his turn.

[16]  Ms King gave a version of the accident of 9 February 2001 to the police.  In that version she is recorded as saying:

"The … bike came on the right of the white car.  The car made a right hand turn.  He had his indicator on to make the turn.  As he made the turn the bike was on the right hand side in the middle … The white car hit the bike as it was turning."

[17]  Ms King also made a statement, dated 5 July 2001, to the loss adjusters acting for AAMI.  Ms King said:

"At about 5.00pm on that day I was standing in the front yard and I heard the very loud noise of a highly revving motor cycle coming from a westerly direction the motor cycle was roaring as if the rider had changed down gears to then accelerate.  I looked up in that westerly direction and I saw a motor cycle apparently passing, overtaking a car just west of the intersection of Wilson Street.

…

  I did not see the car and the motor cycle until I heard the roar of the motor cycle engine and they were both level a very short distance or at [sic] the western boundary of the intersection. 

  I also observed the right turn indicator on the motor car flashing."

The legislation

[18]  Section 57 of the MAI Act provides relevantly as follows:

"Alteration of period of limitation

(1)If notice of a motor vehicle accident claim is given under division 3 [claims procedures], 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.

… "

[19]  In Morrison-Gardiner v Car Choice Pty Ltd & Anor,[3] this Court held that s 57(2)(b) was to be given its natural meaning, so that the discretion conferred on the court thereby is exercisable upon an application made after the expiration of the limitation period so long as one of the conditions expressly stated in subsections (1) and (2) is satisfied.

[20]  I do not understand the respondents to dispute the correctness of the decision in Morrison-Gardiner v Car Choice Pty Ltd, either at first instance, or in this Court.  Rather, their contention was that the discretion should be exercised against the plaintiff because of the absence of a satisfactory explanation of the delay which necessitated the application, and because the respondents would now be prejudiced in their prospects of a fair trial by reason of their inability to call Ms King as a witness.

[21]  In Morrison-Gardiner v Car Choice Pty Ltd, each member of the Court considered that the statutory context in which s 57(2)(b) is located provides guidance as to factors which are relevant to the decision whether a plaintiff has shown good reason for the court to exercise its discretion to relieve a plaintiff from the consequences of the expiration of the limitation period.  In this regard, McMurdo P said:[4]

"I am confident the legislature intended the words of s 57(1) and (2) of the Act to have their plain meaning. It makes sense that the legislature enacted this section recognising that in setting up the scheme a claimant's rights to bring an action in the courts for personal injuries arising from a motor vehicle accident within the limitation period have been diminished, and so intending that where a claimant, before the end of the period of limitation, gives notice or applies for leave to bring a proceeding based on a motor vehicle accident claim under Pt 4 Div 3, a court should have a discretion to extend the time for bringing the proceeding, notwithstanding the expiration of the limitation period. In exercising that discretion, a court would, of course, be cognisant of the objects of the Act and of the general considerations apposite to any extension of a limitation period as discussed in Brisbane South Regional Health Authority v Taylor ((1996) 186 CLR 541, McHugh J at 551-554).

     Section 57 of the Act does not, in my view, entirely supersede the operation of the Limitation of Actions Act 1974 (Qld). The latter deals with extensions of the limitation period when a claimant becomes aware of a new material fact near to or after the expiration of the limitation period. Section 57 of the Act allows a judge to give leave to a claimant to start a proceeding in a court after the expiry of the limitation period when the claimant has given a complying notice of claim within the limitation period in circumstances where, but for the Act, the claimant could be expected to have commenced the proceeding in a court within the limitation period."

[22]  Williams JA said:[5]

"The section is clearly predicated on the proposition that the three year limitation period imposed by s 11 of the Limitation of Actions Act continues to apply to claims of the type in question. That is the basic rule. But in two situations the proceeding may be started in a court after the expiration of that limitation period. The first situation is where the proceeding is commenced within six months after the notice required by division 3 was given. That would be a rather unusual situation. The notice would have had to be given well outside the nine month period primarily provided for by s 37; but as already indicated such a notice could become complying because the insurer waived non-compliance. But even then it would be difficult to complete the necessary pre-trial requirements within a six month period; that could only be done if, for example because of a situation of urgency, both sides agreed to abbreviate the times for taking the necessary steps. Section 57(2)(a) appears to be a carryover from the 1994 Act without careful consideration as to how it would operate given the new regime requiring the holding of a compulsory conference. But, as pointed out, there are possible situations in which it could apply.

It is really with s 57(2)(b) that the court is now primarily concerned. I can see no reason why the provision ought not be given its clear and ordinary meaning. If a notice pursuant to division 3 is given before the end of the three year limitation period the court is given a general discretion to extend the three year limitation period for the starting of proceedings in the court to enforce the claim.

The policy underlying statutes of limitation was summarised by Hoare J (Kniepp J agreeing) in Archie v Archie; Smythe third party [1980] Qd R 546 at 559 as follows:

'From time to time the Courts have expressed several separate and in some ways differing reasons supporting the existence of statutes of limitations, viz:

1.Those who go to sleep upon the claims should not be assisted by the courts and that protection should be afforded against stale demands (R.B. Policies v. Butler [1950] 1 K.B. 76 at pp. 81-82). An old authority spoke of ‘long dormant claims have often more of cruelty than of justice in them.’

2.A defendant may have lost the evidence to disprove a stale claim (Jones v. Bellgrave Properties [1949] 2 K.B. 700, per Lord Goddard C.J. at p. 704).

3.Persons with good causes of action should not stand by and omit to enforce them (Board of Trade v. Cayzer [1927] A.C. 601, per Lord Atkinson at p. 628)'

     Pursuant to the provisions of the Motor Accident Insurance Act potential defendants are made fully aware of the nature of the claim once the notice pursuant to division 3 is given. In a broad sense proceedings are commenced against the licensed insurer on the giving of notice pursuant to division 3 of the Act. Thereafter a potential defendant is not likely to be prejudiced by the loss of evidence. The remaining principle underlying the limitation statute which needs to be enforced is that a good cause of action should be prosecuted diligently. As already noted, once the notice is given the court can exercise substantial control over the future conduct of that claim.

In my view, given all the provisions of the Motor Accident Insurance Act, conferring a discretion on the court to permit proceedings to be started in a court after the end of the ordinary three year limitation period does not infringe the basic principles underlying the statute of limitations. The provisions of s 57(1) and (2) are no more than a recognition of the fact that a claimant has to comply with a complex set of pre-trial requirements and, for example, on occasions it may not be possible to comply with all of those requirements and still commence the proceeding in court within the limitation period. Provided a claimant is able to establish an explanation for the failure to commence the proceeding within the ordinary limitation period, and provided there is no prejudice to the defendant, there is no reason why a court ought not grant an indulgence by extending the limitation period. The discretion would, of course, have to be exercised judicially and would have to recognise the usual considerations governing the exercise of such a discretion. Amongst other considerations the court would have to have regard to the explanation for the delay, the length of the delay, possible prejudice to the defendant, and the general interest of the court in having such proceedings prosecuted expeditiously."

[23]  Chesterman J, with whom the other members of the Court also agreed, said:[6]

"To give the words of s 57(2)(b) their natural meaning, that the Court is given an unfettered discretion to extend a limitation period subject to the existence of one of the two pre-conditions found in s 57(1), is not likely to prejudice or even inconvenience an insurer. The requirements of division 3 will mean that an insurer has early detailed notice of any claim for damages. It will be given information concerning all aspects of the motor vehicle accident and the claimant’s injuries. It will receive such notice in the ordinary case within six months of the accident. A claimant will be unable to proceed with a claim for damages without having given timely notice to the insurer unless it obtains an order pursuant to s 39(5)(c). In that event the insurer will have notice of the application to proceed further with the claim and can resist it if it has some sufficient ground for complaint. An insurer who is dissatisfied with the pace at which a claimant prosecutes the claim can seek an order from the Court pursuant to s 51D that the action be started within a specified time and/or that the claimant pay the insurer’s costs occasioned by any delay in commencing proceedings. By the time a compulsory conference is held, the insurer will have had revealed to it the claimant’s case including experts’ reports, disclosure of documents, medical reports and any additional information it sought. With this early provision of detailed information it is difficult to see how an insurer could be prejudiced by an extension of the limitation period to allow a claimant to comply with the pre-litigation requirements of the Act.

There are, essentially, three reasons why statutes of limitation have been thought to be appropriate. The first is that claims which are allowed to lie dormant for long periods ‘have more of cruelty than of justice in them’. Secondly, it is realised that a defendant may lose evidence necessary to disprove a stale claim, notice of which comes very late. The third, least persuasive reason is that persons with good causes of action should pursue them with reasonable diligence. None of these reasons would support giving to s 57(2)(b) an application narrower than its expression suggests. No insurer liable to compensate a claimant for personal injuries caused in a motor vehicle accident will be visited with a stale or long dormant claim. Nor will it lose necessary evidence through the passage of time. On the contrary it will be given prompt detailed information of the claim. Nor is there any prospect that a claimant with a good cause of action will delay its prosecution. The insurer is given a statutory right to force the pace.

In reality the provisions of the Act have superseded the operation of the Limitation of Actions Act 1974 (Qld) as it applies to claims for damages of 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.

This is not to say that the discretion conferred by s 57(2)(b) is to be exercised without proper attention to the context in which it is conferred. Section 3 of the Act explains that its objects include keeping ‘the costs of insurance at a level the average motorist can afford’ and encouraging ‘the speedy resolution of personal injury claims’. Its provisions are designed to achieve the prompt assessment of claims by an insurer who is given, for that purpose, comprehensive information by the claimant relatively soon after the accident. There are inducements and penalties to encourage both claimants and insurer to compromise the claim by making realistic and timely offers of settlement. The Act lays down procedures which the parties must follow to produce a settlement or a case which is ready for trial without delay.

The discretion to permit the commencement of proceedings after the expiration of a limitation period is to be exercised in this context. It is clearly meant to ameliorate the plight of a claimant who is unable to comply with the requirements of the Act in time to commence proceedings and who, if justice is to be done, should be given the extension. 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. Any delay on the part of a claimant in complying with the Act’s requirements or in applying for an extension of time will be relevant to the exercise of the discretion. 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."

[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.  With these considerations in mind, I turn to summarise the reasons for the decision of the learned primary judge.

The judgment below

[27]  The learned primary judge accepted the argument of the respondents that the plaintiff had failed to show a good reason for exercising the discretion conferred by s 57(2)(b) in the plaintiff's favour.  Her Honour concluded:[7]

"I consider that the applicant has failed to adequately explain the delay in commencing proceedings.  I consider that the granting of leave would cause prejudice to the defendant."

[28]  In relation to the absence of a satisfactory explanation for the delay, her Honour observed:[8]

"No affidavit from the plaintiff has been filed, outlining his actions in pursuing his claim, and (if it be the case) his reliance on his solicitors concerning progress and time limits.  The affidavit from his solicitor does refer to medical appointments and attendances at the solicitor's office, but detail is lacking."

[29]  In relation to the issue of prejudice to the respondents, her Honour said:[9]

"Ms King's statement is admissible under s 92 Evidence Act, and its probative weight can be attacked under s 101.  Senior Counsel for the respondent submitted that the defendant is prejudiced because it has lost the opportunity to cross-examine Ms King about the place and the time the indicator was activated.  The defendant has also lost the opportunity of testing inconsistencies between the evidence of the plaintiff and the evidence of Ms King.  I consider that the assertion of Counsel for the applicant that 'there is no conflict in the versions given by the plaintiff and Sasha King' … may or may not be true.  The plaintiff's evidence as to his observations of the indicator are not entirely clear from material which is currently available.  The evidence of Ms King is significant on the issue of the plaintiff's contributory negligence.  I am satisfied there is prejudice to the defendant."

[30]  At this point, I should mention that it is clear from the transcript of the argument before the primary judge that senior counsel for the respondents was not so much concerned with the loss of the opportunity to cross-examine Ms King as with the loss of the opportunity to call Ms King as a witness in the case for the respondents.  It is clear, however, that her Honour accepted the respondents' contention that the absence of Ms King as a witness meant that the respondents' prospects of a fair trial on the merits were substantially diminished.

The plaintiff's contentions in this Court

[31]  On the plaintiff's behalf in this Court it was submitted that:

(a) the primary judge erred in failing to appreciate that there was "no occasion for an affidavit by the plaintiff addressing the subject" of delay in allowing the limitation period to pass because the fault was entirely with the plaintiff's solicitors as Mr Carman's affidavit explained;

(b) the primary judge erred in failing to appreciate that there was no significant conflict of evidence between the plaintiff and Ms King, that Mr Doyle was available to give evidence, and that the problem of Ms King's unavailability would have arisen whenever the case had come to trial and, indeed, even if the action had been commenced within the limitation period.

[32]  As Chesterman J said in Morrison-Gardiner v Car Choice Pty Ltd, the purpose of s 57(2)(b) of the Act is "to ameliorate the plight of a plaintiff who is unable to comply with the requirements of the Act in time to commence proceedings and who, if justice is to be done, should be given the extension".[10]  An applicant would, therefore, usually be expected to explain the extent to which compliance with the requirements of the MAI Act hampered the plaintiff in his or her attempts to commence proceedings within the limitation period.

[33]  The primary judge noted the absence of evidence from the plaintiff himself in relation to his reliance upon his solicitors and his own efforts to ensure that his claim was progressed expeditiously.  It is said on behalf of the plaintiff that there was no occasion for the plaintiff to provide an affidavit containing his explanation for the delay which occurred because the circumstances of delay were fully explained by Mr Carman in his affidavit. 

[34]  In my view, the plaintiff's approach is not persuasive.  It must be borne in mind that the plaintiff is seeking to persuade the court to override a defence otherwise available to the defendant.  That is a serious matter.  A plaintiff should not shy away from offering his or her own explanation for the delay and allowing that explanation to be scrutinised.  It is relevant for the plaintiff to show that the delay which has led to the failure to commence proceedings in time is indeed due to the error of the solicitor upon whom the plaintiff was reliant, and not to the plaintiff's own lack of interest, especially where there are long periods during which, from a respondent's point of view, the action might seem to have "gone to sleep".  To that end, 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.

[35]  In the present case, the absence of evidence from the plaintiff himself is an unsatisfactory aspect of the case made in support of the plaintiff's application; but it might not have been fatal.  The more serious problem for the plaintiff, it seems to me, is that the explanation for the delay which was given did not identify any significant connection between the requirements of the MAI Act and the delay which occurred.  It is to be emphasised that the issue here is not whether the plaintiff may reasonably be excused for having relied upon his solicitor to comply with the requirements of the MAI Act.[11]  The issue is whether the delay which occurred was related to compliance with the MAI Act.

[36]  Mr Carman's affidavit does not assert that compliance with the MAI Act, or errors on the part of the plaintiff's solicitors in that regard, caused or even contributed to the plaintiff's missing the limitation period.  He does not suggest that there was a mistake on the part of the plaintiff's solicitors as to the requirements of the MAI Act.  In this regard, the case stands in marked contrast with, for example, Morrison-Gardiner v Car Choice Pty Ltd where, as Holmes J, the judge at first instance, explained,[12] the plaintiff's claim would have been commenced within the limitation period but for the procedural requirements of the Act and the plaintiff's solicitors' mistake in failing to understand those requirements.

[37]  The requirements of compliance with the Act might arguably have been said to be a reason why the plaintiff's action was not commenced within the limitation period, in the sense that, it might have been said that, had there not been the statutory necessity for a compulsory conference before the commencement of proceedings, there would have been no impediment to the commencement of proceedings in May 2003.  But Mr Carman did not suggest in his evidence that the need, either to hold a compulsory conference, or to have it dispensed with by the court, had any bearing on the failure to commence proceedings within the limitation period.  According to Mr Carman's evidence, the plaintiff's action was not commenced within the limitation period simply because of the unfortunate administrative inefficiency of the plaintiff's solicitors in November 2003.

[38]  One may digress for a moment to observe that it might have been difficult for Mr Carman to maintain a suggestion that the need to comply with the MAI Act, and errors made by the plaintiff's solicitors in that regard, did lead to the plaintiff's action being statute-barred.  No attempts at all were made by the plaintiff's solicitors to address the need for a compulsory conference or to have it dispensed with in the period between 20 May 2003 and the administrative failure in the plaintiff's solicitors' office in November 2003.  There is no suggestion in the diary notes of the plaintiff's solicitors which were in evidence that the delay in progressing the claim was due to the exigencies of the MAI Act or associated matters, such as the need for the plaintiff's injuries to stabilise before a compulsory conference could be appointed or an application made to the court to dispense with the need for a compulsory conference.  However that may be, it is not necessary to pursue this speculation further.  As I have said, Mr Carman has not sought to advance such a suggestion in his evidence.

[39]  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.

[40]  Next, as the primary judge appreciated, one cannot conclude that the grant of an extension of time now will allow justice to be done.  As has been said, the discretion in s 57(2)(b) is conferred to enable the court to facilitate a trial of the plaintiff's claim so that justice may be done.  A court would not usually exercise the discretion to permit a trial which is likely to be a travesty of justice or a solemn farce because a material witness is not available.[13]  

[41]  In the present case, the primary judge was, in my respectful opinion, correct in concluding that the respondents' entitlement to a fair trial on the merits has been adversely affected by the unavailability of Ms King.  There do appear to be significant differences between the testimony that would be given at trial by Ms King and the plaintiff.  The plaintiff's case seems to be that Mr Doyle did not signal his intention to turn right until he actually commenced to make the turn, and that he indicated his intention simultaneously with that manoeuvre.  Ms King's statement to the police suggests that Mr Doyle had indicated his intention to turn right before he actually commenced his turn.  On the basis of that evidence, it may be that Mr Doyle would have been found to have indicated his intention to turn right earlier than is suggested by the plaintiff.  The effect of such a finding might have been to exonerate Mr Doyle of negligence.  At least, it could be expected to have had some significant bearing on the extent of the contributory negligence to be attributed to the plaintiff. 

[42]  It may be accepted that the difference between the thrust of the statements made by Ms King and the plaintiff is a matter of degree.  The difference might be shown at a trial to be illusory.  Whether there is a real difference between Ms King's statement to the police and her statement to the loss adjuster as to the position of the plaintiff's motor cycle in relation to Mr Doyle's vehicle when Ms King first saw Mr Doyle's vehicle indicate an intention to turn right, and the extent of any such differences are the sorts of things which would usually be clarified at a trial.  The clarification of the evidence of a witness, and the resolution of differences between witnesses, are commonplace aspects of the trial process.  Often they are the very reasons why a trial is necessary.  There is, in the present case, to say the least, a real doubt as to whether the evidence to be given by the plaintiff could stand with the evidence which would be given by Ms King if she were available.  To the extent that it seems that there would be conflict between them, this conflict concerns the central issue in the case, so far as the liability of the respondents is concerned.  The unavailability of Ms King is, therefore, apt to skew the trial in the present case in favour of the plaintiff.  That would not be fair.

[43]  It is the plaintiff who must show that the discretion to permit the matter to proceed to trial should be exercised in his favour.[14]  Accordingly, doubt or uncertainty as to the existence and extent of a conflict of evidence between the plaintiff and Ms King is a significant deficit in the plaintiff's attempt to persuade the Court that there is good reason to allow the claim to proceed to a trial.

[44]  The plaintiff argues that the difficulty which arises for the respondents by reason of the absence of Ms King may have arisen even if the action had been commenced within the limitation period.  This argument must be rejected.  The plaintiff has not even attempted to demonstrate that Ms King became unavailable during the limitation period.  Further, it is well established that there is no reason to engage in a comparison of the respondents' position during the limitation period with the defendants' position afterwards.  It is at the time when the court is called upon to exercise its discretion to permit the matter to proceed to trial that the court must address the question whether a fair trial may now be had.[15]  The court's order deprives the defendants of an otherwise complete defence to the claim.  Such an order should not usually be made if the court cannot be satisfied a fair trial of the merits of the claim is possible at that time.

[45]  On behalf of the plaintiff, it is also submitted that the circumstance that Ms King is now unavailable as a witness is not due to the plaintiff's delay, but to the respondents' failure to keep in touch with Ms King after the loss adjusters had taken her statement in July 2001. 

[46]  In this regard, the plaintiff relies upon the decision of this Court in Hoy & McCormack v Honan & Anor;[16] but that decision does not support the proposition that a defendant must keep track of its potential witnesses as a condition of the entitlement to be permitted to rely on a good defence under the statute of limitations.  Indeed, that case is readily distinguishable.  One aspect of the prejudice there asserted in opposition to an application for leave to proceed under the now replaced  O 90 and r 9 of the Rules of the Supreme Court included the loss of records relating to the transaction which gave rise to the claim.  It was held that the records were not preserved because of the inaction of the appellants who knew of the relevance of the records to the action brought against them and did nothing to obtain or preserve those records.  The other aspect of the prejudice asserted in Hoy & McCormack v Honan & Anor related to the appellants' ignorance of the whereabouts of a potential witness.  Derrington J, with whom Fitzgerald P and Byrne J agreed, held that the investigation of the whereabouts of the witness in question had been "inadequate to support any finding of loss of this witness, and the claim in this respect should be disregarded".[17]

[47]  In the present case, it is not suggested that Ms King's whereabouts can now be established.  Further, this is not a case of a failure by a defendant to preserve or obtain information which was available but which has been lost because of the imprudence of the defendant.  Rather, this is a case where an essential witness is no longer able to be located through no-one's fault. 

[48]  It is not suggested that the respondents have in any way caused Ms King's unavailability.  It is difficult to attribute the unavailability of Ms King to imprudence or inactivity on the respondents' part.  The respondents' ability to keep track of the whereabouts of Ms King inevitably depended, to a large extent, upon her "unrestricted volition".[18]  For Ms King's decisions and movements, the respondents can hardly be held responsible.  Especially is this so when the question is not whether the conduct of the respondents has been such that they have qualified to be allowed to assert their statutory entitlement to rely on a limitation defence, but whether the plaintiff has shown that there is good reason why they should not be allowed to assert that entitlement.

[49]  Finally, it may be noted that the present unavailability of Ms King is not the kind of prejudice that the early notice of the plaintiff's claim pursuant to s 37 of the MAI Act was apt to prevent.

[50]  For these reasons, I consider that the decision of the learned primary judge was correct.  The plaintiff failed to demonstrate good reason for the favourable exercise of the discretion conferred by s 57(2)(b) of the MAI Act.

Conclusion and orders

[51]  Because the application for leave to appeal was necessary to attempt to preserve the plaintiff's right of action, and because the arguments advanced on behalf of the plaintiff deserved to be heard, I would grant leave to appeal.  I have concluded, however, that the decision of the primary judge to refuse the plaintiff's application was correct.

[52]  The application for leave to appeal should be granted, and the appeal should be dismissed.

[53]  The plaintiff must pay the respondents' costs of and incidental to the application and the appeal to be assessed on the standard basis.

[54]  FRYBERG J:  The reasons for judgment of Keane JA amply demonstrate that it was open to the primary judge to reach the decision which she made in the exercise of her discretion.  The applicant has not demonstrated any error which would justify this Court’s interfering with that decision.  That is enough to dispose of the application.

[55] At first instance the decision in this matter might have gone either way.  The defendants themselves were guilty of substantial, unexplained delay.  They failed to comply with the obligation to provide the plaintiff with a copy of the loss adjuster’s report for over a year and a half.  They sought and obtained a further delay to await the decision of the Court of Appeal in Morrison-Gardiner v Car Choice Pty Ltd.[19]  That is not the conduct of someone concerned about delay or prejudice, or anxious to fulfil the purposes of the legislation by expediting the progress of the claim.  These and other considerations were for the judge to weigh up.  They are not matters warranting an appeal to this Court.

[56]  I agree with Keane JA that the power conferred by s 57(2)(b) of the Motor Accident Insurance Act 1994 is unfettered by any condition precedent.  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.

[57]  The issues in the application raised no point of general importance.  I would refuse the application for leave to appeal.