DISTRICT COURT OF QUEENSLAND

1. [1]
   Mr Osman is a citizen and resident of Columbia. On 29 March 2002, while stopped at traffic lights on the Gold Coast highway, he was injured when a car driven by Ms Charles collided with the rear of the vehicle he was driving. Mr Osman wishes to recover damages for the injuries he sustained in the accident. He did not commence proceedings within the limitation period, which expired on 29 March 2005.

2. [2]
   The parties consented to orders on 28 September 2005 by which Mr Osman was granted leave to commence proceedings within 60 days of certain events occurring, including a court order dispensing with the requirement to hold a compulsory conference. An order dispensing with the compulsory conference (the second order) was made on 8 May 2006 and, pursuant to the consent order, proceedings should have been commenced within 60 days thereafter. Due to error by Mr Osman’s solicitors, proceedings were not commenced.

3. [3]
   Mr Osman applied for relief from the consequence of that error. Initially relief was sought on alternative grounds, the first being an application for leave to vary the time for performance of the consent order. That ground was abandoned at the hearing and only the alternative ground for relief was pursued. That is, an order pursuant to s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) (MAIA) for leave to commence proceedings. The respondents did not argue that the court did not have discretion to make the order, because an earlier consent order was made to extend time^[1].

4. [4]
   Ms Treston, counsel for the respondents, argued the discretion conferred by s 57(2)(b) to extend the limitation period is not open ended and the applicant must establish an explanation for the failure to commence proceedings. She relied on Chesterman J’s judgment in Morrison-Gardiner as establishing that Mr Osman must be able to demonstrate that he was “unable to comply with the requirements of the Act” in time to commence proceedings and, in the interests of justice, should be given the extension.

5. [5]
   In Winters v Doyle Keane JA reviewed the Court of Appeal’s decision in Morrison-Gardiner and concluded:

“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 the possibility of unfair prejudice to the defendant, are not conditions precedent to the enlivening of power conferred by s 57(2)(b) of the MAI Act. Rather, they are considerations relevant to the proper exercise of that power.”

6. [6]
   Ms Treston submitted the failure to commence proceedings within 60 days of the second order was not due to an inability to comply with the requirements of the MAIA, rather it was due to the error of his lawyer. For this reason, she said, the application should be refused.

7. [7]
   Mr Morgan, counsel for Mr Osman, argued Ms Treston had incorrectly identified the time for considering why Mr Osman had not commenced proceedings. He submitted the relevant point for that enquiry was 29 March 2005 when the limitation period expired, not 60 days from the second order. The failure to institute by 29 March 2005, he submitted, was attributable to Mr Osman’s difficulties, caused by his residence and limited English skills, in complying with the requirements of the MAIA.

8. [8]
   Ms Treston properly conceded there was extensive and ongoing communication between the lawyers for the parties and exchanges of information throughout the history of this matter, although there were some periods of inactivity early on. Importantly, a complying Notice of Accident claim form was provided on 27 June 2002 and the respondents were then properly appraised of the claim and in a position to investigate the accident. That this could adequately be done is demonstrated by the admission of liability on 20 December 2002, more than two years prior to the limitation period expiring.

9. [9]
   From that time, the exchanges between the parties related to the requirement to provide comprehensive information relevant to the quantum of Mr Osman’s claim. His ability to provide required information was hampered by his residence in Columbia and his limited command of English, with associated delays caused by translation requirements. Whilst information has been provided in a piecemeal and incomplete way, I accept this is not a case where Mr Osman has let the matter lie dormant.

10. [10]
    As to the solicitor’s error, Ms Treston invited me to infer from a passage from the judgment of Keane JA in Winters v Doyle that the courts should not grant an extension where the only relevant factor is that the failure to commence proceedings was attributable to the solicitor’s error (at [39]). His Honour stated:

“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.”

11. [11]
    I am not convinced the inference Ms Treston asks me to draw from that passage is fairly open. Courts have generally taken the view that the fault of the solicitor should not generally be ascribed to the claimant (Perdis v Nominal Defendant, Morrison-Gardiner per McMurdo P at [16]).

12. [12]
    In any case, the error of the solicitor after the second order was made is not the only relevant factor. Non-compliance with the second order is, as Mr Morgan submitted, too narrow a focus. The actions taken by the applicant to pursue the claim prior to the limitation period expiring are relevant as is his ongoing conduct of the matter both before and after the consent order was made. The actions taken by Mr Osman and his representatives throughout the conduct of the matter provide the context for considering whether, at this point, the discretion should be exercised to extend time to commence proceedings.

13. [13]
    In Winters there were other important factors which weighed in the balance, notably:

• the significant prejudice to the defendant because a key witness was unavailable to the defence, due to the delay in commencing proceedings; and

• the lack of evidence of a conscientious effort by the plaintiff to comply with the requirements of the MAIA.

Neither of those factors is present in this case. Ms Treston conceded there is no prejudice to the respondents. The claim has been well investigated and liability has been admitted.

14. [14]
    Further, there is evidence of Mr Osman’s efforts to comply with the requirements of the MAIA and of the circumstances which made this difficult for him to so do. In response to a request from Mr Osman’s solicitors referring to those difficulties, the respondents agreed not to rely on the limitation period if proceedings were commenced by 29 September 2005. Whilst some information was provided, there were still matters outstanding in August 2005, when Mr Osman’s solicitors again requested an extension of the limitation period. This resulted in the consent orders being made.

15. [15]
    When the second order was made there was still some information outstanding and arrangements were yet to be made for Mr Osman to be medically examined. Again, this was complicated by his residence in Columbia. These were the matters relied upon in obtaining the order to dispense with the compulsory conference being held, which triggered the 60 day time frame in the consent order.

16. [16]
    After the second order was made, the respondents continued to request and Mr Osman continued to provide information necessary to assess quantum generally and to substantiate particular claims, translations of medical reports and taxation records and information about prior accidents. The parties’ solicitors have participated in an informal settlement conference and offers have been exchanged.

17. [17]
    In those circumstances, his solicitor’s failure to comply with the time frame triggered by the second order should not be determinative of the fate of Mr Osman’s claim. Mr Osman’s solicitor has undertaken to issue proceedings forthwith if an order is made. I consider this to be a proper case in which to exercise the court’s discretion to extend time to commence proceedings. Accordingly, I order that Mr Osman has leave to file proceedings within 14 days of the date of this order.

18. [18]
    I will hear submissions as to the costs of the application.