Leyshon v Sekulla
[1998] QDC 223
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- Unreported Judgment
- Leyshon v Sekulla[1998] QDC 223
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Leyshon v Sekulla[1998] QDC 223
Leyshon v Sekulla[1998] QDC 223
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No 193 of 1998 |
BETWEEN:
ADAM LEYSHON | Plaintiff |
AND:
KARL SEKULLA | First Defendant |
AND:
SUNCORP GENERAL INSURANCE LIMITED | Second Defendant |
REASONS FOR JUDGMENT - BOULTON D.C.J.
Delivered the 4th day of September 1998.
The Plaintiff was involved in a motor vehicle accident on 8th March 1995. At some stage the Plaintiff may have entertained the belief that the accident occurred on 13th March 1995 and that error may have contributed to the later course of events.
According to the Plaint (which makes a further error in giving the date of the accident as 13th March 1998) the plaintiff's vehicle was struck in the rear by the defendant's vehicle. The plaintiff suffered whiplash type injuries which are fairly typical of such a collision.
The plaintiff said that he gave instructions to his solicitors on 11th March 1998. He says in his affidavit that he had hoped the pain in his back and neck would subside but he became concerned when that did not occur. When he saw his solicitors he had mislaid his financial records.
Mr Lovell, the plaintiff's solicitor, said in his affidavit that he received instructions on 12th March 1998. I prefer Mr Lovell's account to that of the plaintiff in so far as the actual date is concerned. On the same day Mr Lovell caused the Plaint to be filed and also forwarded to the second defendant a notice pursuant to s34 of the Motor Accidents Insurance Act (“the Act”).
Fairly obviously questions of the Limitation Act would have been uppermost in the mind of Mr Lovell in performing these actions on the same day that instructions were received. However, as it turns out the plaintiff was born on 19th March 1977 (a fact which appears on the face of the s34 notice). - This meant that the limitation period did not actually expire until the 18th March 1998.
There was no compelling urgency therefore to perform the actions on the 12th March 1998. The plaintiff's solicitor might have prepared a s37 notice to the defendant or might have made application to the court if insufficient information was available to do that. If he had done either he could have availed of the extended period of six months made available by s57 of the Act.
The solicitors for the second defendant responded by letter on 14th April 1998 and pointed out that the failure to give a s37 notice had resulted in the expiry of the limitation period. They pointed out that the indulgence afforded under s57 of the Act was not available. They insisted on the discontinuance of the action.
The second defendant's solicitor did not advert to the matter of the plaintiff's birthday. If the second defendant had noted this when served on 12th March 1998 it would have been in a position to notify the plaintiff's solicitors that they had another six days under s57(1) of the Act to give a s37 notice or to make an application for leave pursuant to s39(5) of the Act.
It seems that neither of the solicitors nor the second defendant adverted to the matter. The fact of the matter is that an action was commenced within time which did not comply with the provisions of division 3 of the Act.
The plaintiff's solicitors did lodge a s37 notice on 21st April 1998. On 3rd July 1998 the defendant's solicitors entered an Entry of Appearance and Defence to the Plaint alleging amongst other things non-compliance with division 3 of the Act prior to instituting proceedings.
Really there is no dispute that in the circumstances the plaintiff failed to comply with the provisions of division 3. The plaintiff now makes application for leave to issue proceedings pursuant to s39(5)(c) of the Act despite such non-compliance and asks for such leave nunc pro tunc. Leave merely given at this point of time will be insufficient because of the expiry of the limitation period.
There was some suggestion that to “bring the proceedings” can be construed as to “continue the proceedings already brought”. This submission really does not survive the comments of McPherson JA and Williams J in Young v Keong & Ors C.A. No. 2202 of 1997 (unrep.) 22nd May 1998 where “bringing an action” and “commencing an action” are seen as synonymous.
The initial question that falls for determination is whether there is a power for a court to make such an order “nunc pro tunc”. The second question relates to whether it is appropriate to do so on the facts of this case.
The principal hurdle confronting the applicant is the decision of Williams J in Young's case where at page 5 of the unreported judgment His Honour observes:
“Both s37(1) and 39(5) are in terms mandatory; that is emphasised by the use of the word “only” in the latter provisions. In New South Wales it has been held that similar provisions are mandatory and in the absence of an order to the contrary legal proceedings cannot be commenced where there has been non-compliance; Hill v. Bolt [1992] 28 NSWLR 329 and Serhan v Serhan (1996) 24 MVR 4. The language of the Queensland provisions is similar, and in my view the result should be the same.”
That appears to put paid to the plaintiff's application. However Williams J goes on to point out in the following paragraph:
“No application for leave has been made in this case. It is therefore not appropriate to consider the grounds on which such leave may be granted, and whether or not leave could be granted on the facts of this case. What is important for present purposes is that s39(5)(b) and (c) clearly recognise that for some period of time a claimant may have been in default, in the sense that the claimant had not complied with the requirements of the legislation. In those situations, and in particular where leave pursuant to s39(5)(c) has been given, the court may impose one or more of the sanctions provided for in s39(7) when making its final orders.”
It seems clear that His Honour, in making the finding of mandatory provisions, is referring to the giving of notice under s37 and the necessary preliminaries for the bringing of an action in compliance with s39(5). The question of leave despite non-compliance under s.39(5)(c) simply did not arise.
I am assisted in considering the first question to be resolved by the decision of the High Court of Australia in Emanuele v Australian Securities Commission 71 ALJR 717. The High Court upheld a decision of the Full Court of the Federal Court which had granted leave nunc pro tunc for the bringing on an application for winding up an insolvent company pursuant to s459 p(2) of the Corporations Law of South Australia.
Kirby J at p735 observed:
“A feature of the administration of justice in more recent times has been a general disfavour towards procedural rigidities and a preference for a somewhat more flexible approach to statutory preconditions where these are of a procedural character. In Woods v Bate (1986) 7 NSWLR 560 at 567 McHugh JA (with the concurrence of Hope JA) said:
“In recent times the courts have shown great reluctance to invalidate an act done pursuant to a statutory provision because of the failure to comply with antecedent conditions...................................................
speaking generally, I think that, at the present time, the proper approach is to regard a statutory requirement, expressed in positive language, as directory unless the purpose of that provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting injustice...”
In Bridgewater v. Leahy C.A. No. 203 of 1995 24 unreported 24th March 1997 the court considered the action of beneficiaries under a will in bringing an action which was properly that of the testator to set aside a gift under the will. Fitzgerald P observed at p7 of the unreported judgment:
“The appellants should have obtained an order giving them leave to bring the action against the respondents before doing so: Succession Act 1981, subs-s 49(2); R.S.C. O.33 r.9.. However, if such an order is appropriate, leave can be granted nunc pro tunc. The purpose of the provisions necessitating leave is to facilitate the orderly and efficient administration of deceased and trust estates: the special factors which influenced the Full Court in Fitzpatrick v Jackson [1989] 2 Qd.R 542 are absent in a case such as this, which is closely analogous to the cases which permit an order nunc pro tunc when leave is required to proceed against bankrupts or corporations in liquidation or official management; see, for example, Murray v United Pacific Transport Pty Ltd [1960] 1 Q.W.N. 20; Re Testro Bros Consolidated Ltd [1965] VR 18; Re Sydney Formworks Pty ltd (In Liq.) (1965) 82 W.N. (Pt 1) (NSW) 558.”
It has been said elsewhere that the purpose of the legislation under consideration is to facilitate the settlement of personal injury matters without recourse to litigation. However, the provisions are capable of working injustice in certain circumstances and the court is given an overriding discretion to allow recourse to litigation despite non-compliance with the provisions.
I am fortified in this view by the decision of Forde DCJ in Hardacre v Johnson & Anor No. 5102 of 1997 (unrep) 27th January 1998 and the decision of Botting DCJ in Jenkins v Clarke No. 4433 of 1997 (unrep) 29th January 1998. Leave may be granted nunc pro tunc in the present case.
Counsel for the applicant, Mr Mullins, referred to the well known comments of Kelly SPJ, with whom Macrossan and Derrington JJ agreed, in Fitzpatrick v Jackson (1989) 2 QdR 542 at 548:
“Although there does not appear to be any decision of an appellate court on the subject, the weight of authority is that leave nunc pro tunc to commence and proceed with an action may be granted where grounds are shown which would have justified leave in the first instance. It is trite to say that the question is one of interpretation of the particular statutory language in the context of the legislation being considered. As Sholl J pointed out in Re Testro Bros Consolidated Ltd [1965] V.R. 18 at 35, sections analogous to s371(2) of the Companies (Queensland) Code are concerned with the granting of leave under legislation aimed at preserving the control of the court over the administration of a company's affairs.”
A similar comment may be made about the present legislation where recourse to the court to correct injustices or anomalies is preserved.
There seems no doubt that if an application had been made to the court on 12th March 1998 in circumstances where it was thought that the limitation period was about to expire on that day and that it was not reasonably possible on that day to comply with the requirements of a s37 notice, the granting of leave would have been a mere formality.
This really answers the second question that I need to resolve. There seems to have been a genuine and understandable mistake made by both parties as to the date of the expiry of the limitation period. The plaintiff's solicitors did what seemed to be the obvious thing to do to keep their client's cause of action alive. The second defendant was notified on that same day and has since had the benefit of a s37 notice. There is no prejudice to the defendants as a result of all of this. It may be said that the pre-litigation settlement procedures envisaged in the litigation have not taken place. This is quite a minor detriment when viewed against the prospect of the plaintiff losing his legal rights altogether. Other settlement avenues are still open. It is still possible to make leave subject to a condition that the second defendant obtain further information if required.
I therefore grant the plaintiff leave nunc pro tunc to bring the proceedings commenced on 12th March 1998 subject to the rights of the second defendant to make response to the plaintiff's s37 notice pursuant to s39(1) of the Act within one month of today's date. I give born parties liberty to apply.
The applicant seeks an indulgence and should bear the costs of the application. I order that the applicant therefore pay the respondents' costs of and incidental to the application to be taxed.
I direct that the taxation of such costs await the determination of the action or earlier order of the court.