Jonathan v Mangera[2016] QCA 86

SUPREME COURT OF QUEENSLAND

1. MORRISON JA:  Mr Jonathan was injured in a motor vehicle collision on 4 August 2012.  He gave the requisite Notice of Accident Claim Form under the Motor Accident Insurance Act 1994 (Qld), on 31 August 2012.  The second respondent (RACQ) admitted liability on 15 November 2012.
2. To further his claim, Mr Jonathan was examined by his selected specialists, an orthopaedic surgeon and an occupational therapist.  Their reports were provided in March 2013.
3. An appointment was made to have Mr Jonathan examined by one of RACQ’s three nominated orthopaedic surgeons.  The request was made and agreed in March 2013, and the appointment date (for 31 July) was agreed in June 2013.
4. Mr Jonathan did not attend the appointment.  He had no further contact with his solicitors from sometime between 25 June and 10 July 2013.  By 10 July 2013 the solicitors were able to advise that they had “lost contact with our client”.^[1]  On 20 September 2013 the solicitor advised RACQ that he had not been able to contact Mr Jonathan, whom he believed to be “on the run” in connection with burning down a house.^[2]  The solicitors tried many times, in many ways,^[3] to contact him but could not.
5. The three year limitation period was due to expire on 4 August 2015.  On 10 July 2015 an application was filed,^[4] seeking orders that leave be given to commence proceedings within 60 days after three alternative events, none of which could occur before the limitation period ran out.  The application nominated 31 July 2015 as the date set for the hearing.^[5]
6. On 29 July 2015 Mr Jonathan contacted the solicitors, telling them that he “had been overseas for the past couple of years” on holiday.^[6]  He was told that the limitation period was due to expire on 4 August, and that a court hearing was on 31 July “to attempt to extend this limitation period”.^[7]  He was told the same thing on 30 July 2015.^[8]
7. On 6 August 2015 the learned primary judge dismissed the application.
8. Mr Jonathan seeks leave to appeal from the dismissal of his application.  Leave is required under s 118(2) and (3) of the District Court of Queensland Act 1967 (Qld).  RACQ accepted that if there was merit in the proposed grounds of appeal, leave should be granted.^[9]
9. The issues proposed to be raised by the appeal are whether the learned trial judge’s discretion miscarried by finding that:

1. no good reason had been shown for granting leave to extend the time;
2. Mr Jonathan had not made a conscientious effort to comply with the Motor Accident Insurance Act 1994 (Qld);
3. Mr Jonathan had chosen to absent himself from the jurisdiction without providing instructions to his solicitors and regardless of the consequences; and
4. RACQ was at a risk of significant prejudice should leave be given.

10. Mr Jonathan also seeks leave to adduce further evidence pursuant to r 766(1)(c) of the Uniform Civil Procedure Rules 1999 (Qld).

The application to adduce further evidence

11. The fresh evidence sought to be adduced is an affidavit of Mr Jonathan, giving details of his movements and availability to his solicitors between March 2013 and July 2015.  At the hearing of the application for leave to appeal the Court reserved its decision on the admissibility of the fresh evidence.
12. The principles applicable to this application are not in doubt.  Fresh evidence can be admitted if: (i) it could not have been obtained with reasonable diligence for the original hearing; (ii) it is such that, if given, it would probably have an important influence on the result of the case; and (iii) it is apparently credible.^[10]  None of those principles can be met here.
13. First, in my view, the evidence does not satisfy the requirement that it could not have been obtained with reasonable diligence for the original hearing:

1. all of the information in it consists of personal explanations as to where Mr Jonathan lived and worked, and his access to phones or emails, during the period between March 2013 and July 2015; that was available to be produced had anyone asked him when he made contact again on 29 July 2015;

2. Mr Jonathan called his solicitors on the afternoon of Wednesday 29 July 2015, and again on Thursday 30 July; even though he said he could not get time off work to go into the solicitors’ office, that still left all the time after hours on Wednesday 29 and Thursday 30 when he could have been asked for instructions over the phone and still prior to the hearing on Friday 31;
3. had an adjournment of the hearing been sought in light of the recent contact and his unavailability during business hours, there was a reasonable likelihood of it being granted, even if only until 4 August; no adjournment was sought on 31 July, notwithstanding that the solicitors had not tried to get Mr Jonathan to attend after hours, nor had they proposed they attend on him;
4. had an adjournment been granted only to 4 August, that left all day Saturday 1 August, Sunday 2 August, and after hours on Monday 3 August, in which an affidavit could have been prepared including all that Mr Jonathan now says; and
5. there is no explanation of why the solicitors did not attend on Mr Jonathan after hours to get the material they needed; the lack of effort is inexplicable given the fact that they were impressing on him the urgency of the situation with the looming expiration of a limitation period, and Ms Rutledge seems to have been willing to work after normal business hours.^[11]

14. Secondly, I do not consider that the evidence would have had an important influence on the case, at least not in Mr Jonathan’s favour.  In my view, the evidence was likely to confirm the inference drawn by the learned primary judge that Mr Jonathan deliberately stayed out of contact.  The following suffices to demonstrate why:

1. there is no explanation why he did not attend the appointment with the examining specialist;
2. there is no credible explanation why he gave up his position as Manager of Australian Pharmaceutical Industries, earning over $3,000 per week,^[12] to work (between May 2013 and Christmas 2013) in southern States without the ready ability to be in contact;
3. between 25 December 2013 and April 2015 he was living and working at Tweed Heads, and with the ability to be in phone contact; however there was no explanation why he did not, nor could not, contact his solicitors;
4. from some unspecified time after September 2014 to July 2015 he was working at Eagle Farm; there is no explanation why he did not, or could not, contact his solicitors;
5. there is no explanation given as to why he could not have been found on Electoral Roll searches;
6. the message that triggered his contact was sent at 5.15 pm on Friday 24 July; it said that he needed to contact them “ASAP”, but he did not do so until Wednesday 29 July; there is no explanation for that delay; and
7. in support of the application to adduce the fresh evidence, Ms Kruger, a solicitor in the firm acting for Mr Jonathan, exhibited a letter sent to Mr Jonathan on 4 July 2013; it says that the solicitors’ office “understands that you do not wish to proceed with your personal injury matter at this point in time due to ongoing police investigations over a possible arson”; there is no denial of receipt of that letter, or that it does not reflect his instructions.

15. Thirdly, I do not consider that the evidence is apparently credible.  There are several areas where the new affidavit conflicts with the evidence given in affidavits before the learned primary judge.  For example:

1. Mr Jonathan told Ms Rutledge that he had been overseas on holidays for the past couple of years, whereas that is not true according to the new affidavit;

2. he also told her that he had just arrived back from overseas which is why he didn’t have a permanent address; however, the new affidavit says the holiday was in September 2014; and
3. the new affidavit says he thought he had done everything he needed to do by attending doctors; but that is hardly credible considering he did not attend the appointment made for him in June 2013, and given his instructions reflected in the solicitors’ letter of 4 July 2013: see paragraph [14](g) above.

16. The application should be refused.

Leave to extend the time

17. The power to grant an extension within which to commence a proceeding for damages out of time is given by s 57(2) of the Motor Accident Insurance Act 1994 (Qld), which relevantly provides:

“(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

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

18. The power is discretionary, and that discretion is to be exercised with recognition of the context in which it operates.  The objects of the Act are to keep the costs of insurance down and encourage the speedy resolution of personal injury claims.  The Act is designed to achieve prompt assessment of claims by the insurer, which is to be given comprehensive information by the claimant, relatively soon after the accident.  Claims should be prosecuted diligently.  Further, there are provisions which encourage both sides to make offers of settlement.
19. The principles applicable to the exercise of the discretion on the question of leave to commence proceedings out of time, have been well established.
20. In Morrison-Gardiner v Car Choice Pty Ltd^[13] this Court referred to the context in which s 57(2)(b) exists and said:

“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.”

21. Subsequently in Winters v Doyle & Anor^[14] Keane JA referred to the passage above and said:

“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.”

22. The applicable principles were later usefully summarised by McMeekin J in Paterson v Leigh & Anor,^[15] in a way approved by this Court in Blundstone v Johnson.^[16]  His Honour referred to Morrison-Gardiner and Winters, and other authority, and said:^[17]

“The principles that seem to be to emerge from these cases are:

1. The discretion to be exercised in respect of an application pursuant to [s 57(2)(b)] of the Act is unfettered;
2. The onus lies on the applicant to show good reason why the discretion ought to be exercised in his or her favour;
3. Where an applicant is able to show that the delay which has occurred was occasioned by a ‘conscientious effort to comply’ with the Act then that would normally be good reason for the favourable exercise of the discretion but is not a ‘dominating consideration’. Conversely, claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them may have difficulty obtaining a favourable exercise of the discretion;
4. Where an applicant is not able to show that the delay was occasioned by ‘a conscientious effort to comply’ with the Act that is not fatal to the application;
5. 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;
6. The length of any delay is important and possible prejudice to the defendant is relevant;
7. Depriving a defendant of the complete defence afforded by the statutory time bar is an important matter;
8. The interests of justice are of course the overriding consideration and in that regard the question of whether a fair trial of the proceedings is unlikely is an important consideration;
9. The giving of a notice of claim before the expiry of the limitation period and compliance by a claimant with the provisions of the Act that it provide any information sought by the insurer are both relevant factors.”

The learned primary judge’s approach

23. The learned primary judge set out the chronology of events as revealed in the evidence before him, the principles extracted from Morrison-Gardiner, Winters and Paterson, and the competing submissions.  There was no suggestion before this Court that any error was made in the recording of those matters.
24. The learned primary judge expressed his findings in this way:^[18]

1. Mr Jonathan had made a decision to effectively do nothing to advance his claim from March 2013 to July 2015;
2. his failure to attend upon an independent medical examination as requested meant that RACQ had been denied the opportunity to have him examined in a timely fashion;
3. that conduct may now significantly prejudice RACQ;
4. one example of the risk of prejudice was that, if he is now found on examination to be free of symptoms, it is likely to be effectively impossible for RACQ to obtain evidence, other than that based solely on Mr Jonathan’s own evidence or statements, as to when that might have happened;
5. another example was, if his condition has worsened, it is impossible or difficult for RACQ to now obtain evidence to explain how or when that occurred, or to explain how that might or might not be related to the original injury;
6. the possibility of that prejudice was because, or significantly because, Mr Jonathan’s decision to absent himself from the progression of his claim;
7. because of Mr Jonathan’s expressed indifference to the need to attend to his solicitors in the days prior to the hearing, there was no satisfactory explanation of how, if at all, his condition might have changed since seeing the specialists in 2013, or how his condition now affects his claim; and
8. it was improbable that the fact, and significance, of limitation periods were not explained to Mr Jonathan during the time he consulted the solicitors.

25. Those findings led to the conclusion that: (i)  there was a significant risk of prejudice to RACQ if the proceedings were permitted; (ii) Mr Jonathan had not demonstrated good reason to exercise the discretion to extend time; (iii) he had failed to make any conscientious effort, or any effort at all, to comply with the requirements of the Act; (iv) rather, he had chosen to absent himself from the jurisdiction without providing any instructions to his solicitors and regardless of the consequences; and (v) the interests of justice required that the application be dismissed.^[19]

Discussion

26. I am unable to accept the contention that there is demonstrated error in the findings of the learned primary judge or that the discretion miscarried.
27. Having initiated a claim under the Act, and progressed it to some degree by obtaining reports from his own specialists, Mr Jonathan withdrew himself from contact with his solicitors when he knew that further steps were arranged to progress the matter and meet the requirements of the Act.  His own Notice of Accident Claim Form said that his injuries were “yet to stabilise”,^[20] and there were differing accounts between his specialists as to his limitations.^[21]  An appointment for an examination and report by a specialist had been made, and the date agreed.  Before he withdrew contact there were outstanding requests for information, including as to treatment providers, his resume, execution of authorities and provision of certificates.^[22]
28. There was no explanation as to why Mr Jonathan had not attended to be examined by the medical specialist.
29. The evidence before the learned primary judge was that he had been overseas on holiday for “the past two years”.  There had been no contact at all between the solicitors and Mr Jonathan between about June 2013 and July 2015.  More importantly there was no explanation why he had not kept in contact.  There was no evidence to say that any of the letters written by the solicitors had been returned, or why the electoral roll searches had failed to reveal where Mr Jonathan was.  Indeed, when Mr Jonathan was told the various ways in which the solicitors had tried to contact him, the only one challenged was one address.^[23]
30. There was no explanation why greater effort was not made between 29 July and the hearing, to obtain fuller instructions and an affidavit.  There was ample time, and the ability to communicate or meet after hours, but apparent indifference to the urgency of the situation.
31. When contact with Mr Jonathan was made, and he was told that the limitation period was to expire on 4 August, his only proposal was to meet on the Exhibition Show Day, which was on Wednesday 12 August, some eight days after the time limit.  There was no suggestion that Mr Jonathan was ignorant of the significance of the time limit, nor incapable of understanding the urgency, yet his actions bespoke indifference to the consequences, even at that point.
32. There was no explanation of the comment attributed to Mr Jonathan’s solicitor in September 2013, that Mr Jonathan was believed to be on the run from police over a house being burned down.
33. The foregoing amply justified the learned primary judge’s findings that Mr Jonathan had failed to make any conscientious effort to comply with the requirements of the Act, and that he had chosen to absent himself from the jurisdiction without providing any instructions to his solicitors and regardless of the consequences.
34. As to the risk of prejudice to RACQ, it may be observed that more than two and a half years had gone by since Mr Jonathan had been examined by his own medical specialists.  During that time, so far as the evidence showed, there has been no medical record kept of his condition, or treatment.  Nor, so far as the evidence showed, had there been any record kept of the changing nature of the work done by Mr Jonathan, or other impacts on his condition.  The evidence does not show if the condition has resolved, or symptoms are continuing.
35. Further, there are inconsistent findings between the two specialists who examined and reported on Mr Jonathan’s condition in 2013.  Specifically, Dr Wallace concluded that there was a full range of movement of the neck, spine, shoulders and arms, which led to a “zero percent impairment” assessment.^[24]  By contrast Ms Stephenson reported reduced ranges of movement in the same areas, leading to a conclusion of ongoing work incapacity for tasks beyond sedentary-light occupation lifting.^[25]
36. The possibility of timely examination and assessment has been foreclosed.  There is no assurance that resumption of medical assessment now will redress that situation.
37. That is the sort of risk of prejudice referred to by this Court in Ward v Wiltshire Australia and Anor:^[26]

“[87]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.

[88]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.”

38. In my view, it cannot be demonstrated that the learned primary judge’s exercise of discretion miscarried.

Conclusion and orders

39. For the reasons given above, the application for leave to adduce further evidence should be refused, and the application for leave to appeal should also be refused.
40. I would propose the following orders:

1. The application for leave to adduce further evidence is refused.
2. The application for leave to appeal is refused.

41. The applicant is to pay the respondent’s costs of and incidental to both applications, to be assessed on the standard basis.
42. BODDICE J:  I have read the reasons for judgment of Morrison JA.  I agree with those reasons and with the proposed orders.
43. BURNS J:  I agree with the reasons of, and the orders proposed by, Morrison JA.