DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for leave pursuant to s 57(2)(b) of the Motor Accident Insurance Act 1994 (Act) to issue proceedings against the respondent despite non‑compliance with s 51A of the Act and, in the event leave is granted, that such proceedings, once instituted, be stayed pending compliance by the Applicant with s 51A of the Act.

2. [2]
   Section 50A provides:

1. “(1)
   Before the claimant brings an action in a court for damages for personal injury arising out of a motor vehicle accident, there must be a conference of the parties (“compulsory conference”).

3. (2)
   Each party may call the compulsory conference:

1. (a)
   at a time and place agreed between both parties; or

2. (b)
   if the relevant date has passed – at a reasonable time and place nominated by the party calling the conference.

3. (3)
   For subsection (2)(b), the relevant date is:

1. (a)
   the date falling 6 months after the claimant gave notice to the insurer of the claim; or

2. (b)
   if the insurer required additional information, the later of the following:

1. (i)
   the date falling 6 months after the claimant gave notice to the insurer of the claim;

2. (ii)
   the date falling 1 month after the claimant gave the insurer the completed additional information form.

3. (4)
   The parties may for good reason dispense with the compulsory conference by agreement.

3. (5)
   The court may, on application by a party:

1. (a)
   fix the time and place for the compulsory conference; or

2. (b)
   dispense with the compulsory conference for good reason;

and make any other orders the court considers appropriate in the circumstances.

3. (6)
   In considering whether to dispense with the compulsory conference, the court must take into account the extent of the compliance by the parties with their respective obligations related to the claim.”

3. [3]
   Section 57 provides:

“Alteration of period of limitation

1. (1)
   If notice of the 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 the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.

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

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

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

3. (3)
   If during the last 14 days of the period of limitation, the claimant wants to give a notice of claim under Division 3 but is unsure to which insurer the notice should be given, the notice is validly given if it is given to the commission.

3. (4)
   After receiving a notice of claim under subsection (3), the commission must make inquiries to decide the insurer against which the claim properly lies, and pass the notice of claim on to the appropriate insurer.

3. (5)
   If a period of limitation is extended under Part 3 of the Limitation of Actions Act 1974, this section applies to the period of limitation as extended under the part.”

FACTS

4. [4]
   The applicant was involved in a motor vehicle accident on 11 May 2001 whilst travelling on the South East Freeway heading outbound at the sign indicating 500 metres to the Rochedale Road exit.  According to Dr Greg Gillett^[1] she suffered a cervico‑thoracic spine and an anterior upper chest injury.

5. [5]
   The chronology of events elicited from the affidavits of Peter Joseph McCartney of the plaintiff’s solicitors and Mark David Rowbotham of the solicitors for the second respondent. Relevantly, it is this:

6. [6]
   Any consideration of the extension of limitation period is a serious matter because the applicant, in making the application, seeks to persuade the court to override a defence otherwise available to the defendant.^[2]

7. [7]
   In Brisbane South Regional Health Authority v Taylor^[3] McHugh J traced the history and rationale behind the introduction by legislatures of statutory limitation periods on the commencement of actions. He referred to a statement of Lord Hailsham of St Marylebone LC in R V Lawrence^[4] that the enactment of time limitations has been driven by the general conception that  “where there is delay the whole quality of justice deteriorates.”

Further on at page 11 His Honour said: -

“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel” to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies have a significant interest in knowing that they have no liabilities beyond a definite period….”

“The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.”

8. [8]
   His Honour, in that case, was dealing with an application for an extension of the limitation period under the Limitation of Actions Act 1974 (Qld). He went on to enunciate the matters a court should take into account in exercising its discretion on such an application. He said: -

“The scheme of the Act is that s 11 forbids the bringing of an action for damages for negligence after the expiration of three years from the date on which the cause of action arose unless leave is given under s 31. It follows that an applicant for extension must show that justice will be best served by excepting the particular proceedings from the general prohibition which s 11 imposes. In this context, justice includes all the relevant circumstances relating to the application including the various rationales for the enactment of the limitation period involved. That the applicant had a good cause of action and was unaware of a “material fact of a decisive character relating to the right of action” does not alter the burden on the applicant to show that the justice of the case favours the grant of an extension of time. Those facts enliven the exercise of the discretion, but they do not compel its exercise in favour of the applicant. Without them, the applicant has no right to call for the discretion to be exercised in his or her favour. Proof of them does not give an applicant a presumptive right to the exercise of the discretion as Davies JA and Ambrose J held. As Wells J has pointed out, “to qualify is not to succeed” (Lovett v Le Gall (1975) 10 SASR 479 at 486). The object of the discretion, to use the words of Dixon CJ in a similar context, “is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case”. In determining what the judge of the case requires, the judge is entitled to look at every relevant fact and circumstances that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.”

9. [9]
   It must be borne in mind that the relevant nexus between the delay and the Act’s requirements is but one of the various relevant matters to be considered in determining, whether to exercise the discretion in favour of the applicant, once the applicant has put before the court sufficient facts to enliven the exercise of that discretion. That it is not a precondition to its exercise made clear in Spencer v Nominal Defendant^[5] where Keane JA, with whom de Jersey CJ and Mullins J agreed, said: -

“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 and 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 (Motor Accident Insurance Act 1994).

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.”

10. [10]
    The Court of Appeal has recently considered the correct approach to the issue of delay in relation to applications under s 52(b). This was set out by Chesterman J (with whom McMurdo P and Williams JA agreed). In Morrison-Gardiner v Car Choice Pty Ltd,^[6] where his Honour said:

“The discretion is likely to be exercised favourable 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 the 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.”

11. [11]
    In a later case of Winters v Doyle and Anor^[7] Keane JA (with whom Williams JA and Fryberg J agreed) said:-

“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 be 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.

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 Motor Accident Insurance 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 Motor Accident Insurance Act. The issue is whether the delay which occurred was related to compliance with the Motor Accident Insurance Act.”

12. [12]
    At paragraph 24 of the same judgment His Honour 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 Motor Accident Insurance 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 Motor Accident Insurance 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 Motor Accident Insurance Act.”

13. [13]
    Turning now to the facts of the matter. As can be seen from the above chronology, the accident occurred on 11 May 2001 and things progressed quite well until 19 December 2001 when the applicant’s solicitors Spranklins wrote to Allianz enclosing copies of reports from the Logan Hospital and Sunnybank Physiotherapy. Then followed a period of inactivity of about three weeks short of twelve months up to 3 December 2002 at which point Allianz wrote to Spranklins asking for a copy of the medical reports foreshadowed in the latter’s letter of 19 December 2001. There is no explanation in the applicant’s material for that delay.

14. [14]
    Allianz’s letter of 3 December 2002 was replied to the following day by Spranklins informing Allianz that an appointment had been made with Doctor Greg Gillett Orthopaedic Surgeon for the applicant to be examined by him on 1 July 2003 at 9.30 am that being the earliest appointment available. There is no evidence as to when that appointment was made but I infer that the Allianz letter of 3 December prompted the applicant’s solicitors to make the appointment. All that is said by the applicant in relation to that period is that in or about September 2002 the applicant’s employed solicitor Ms Curcuruto left Spranklins employ and that the file was from then on handled by Mr John Bennett.

15. [15]
    By letter of 6 January Allianz sought the applicant’s selection of a medical specialist from three names provided, to allow her to be independently examined Spranklins responded on 24 January 2003 with the plaintiff’s selection of Dr Ian Dickinson. An appointment was then made for the applicant to see Dr Dickinson at 4.15 pm on 12 June 2003. Subsequent to that appointment, Allianz sent a copy of Dr Dickinson’s report to Spranklins on 10 July 2003. At page 3 of that report Dr Dickinson said

“She had thoracic and neck pains following the accident and although she was only off work for a short period, she initially commenced work on a rehabilitation plan. She still has some residual symptoms as described. However, she does not have any objective evidence of any abnormality in the thoracic or cervical spines, either clinically or radiologically.

The discomfort which persists appears to be of a functional nature and does not reflect any underlying abnormality.

There is no evidence the Ms Wanless has suffered from any impairment as a result of the accident and she will not be disabled from anything she would reasonably wish to do.”

16. [16]
    A little over a month later on 20 August 2003, Allianz forwarded to Spranklins an Additional Information Form for completion by the applicant within one month as she was obligated to do under s 37A(b)(II) of the Act. Spranklins responded by letter of 15 September 2003 advising that a serious health emergency had arisen in the applicant’s family which had precluded her from responding to their requests for further information to that point but that she was currently addressing the matters and the details would be forwarded shortly. They also advised Allianz that they had not yet received Dr Gillett’s report following the examination of the applicant on 1 July 2003 but they would send it along when it became available.

17. [17]
    Approximately two months later by letter of 19 November 2003 Spranklins wrote again to Allianz explaining that the applicant’s personal circumstances had prevented her from providing the additional information, that she was giving the matter urgent attention and that they expected to be able to respond with the information shortly. No details of those presumed circumstances were provided and none were put in evidence. In that letter they again told Allianz that they had not yet received Dr Gillett’s report.

18. [18]
    By letter dated 7 January 2004 Allianz wrote Spranklins chasing up both the additional information and the report of Dr Gillett. Some four months later Spranklins responded by letter of 5 May 2004 enclosing a copy of Dr Gillett’s report and advising that they would come back to Allianz shortly regarding the additional information in relation to which they were taking final instructions. The enclosed medical report of Dr Gillett is dated 1 July 2003 the date of the examination of the applicant. Mr McCartney of Spranklins in his 9 August 2007 affidavit paragraph 19 explains that the medical report was not obtained by Spranklins until 16 December 2003 due to the applicant’s impecuniosity.

19. [19]
    Importantly in that report Dr Gillett said that the applicant’s condition had stabilised. Whilst the delay between 1 July 2003 and 16 December 2003 in obtaining the completed Gillett report is understandable given the financial incapacity of the applicant to pay for that report earlier, the delay between 16 December 2003, the date of receipt of that report and 5 May 2004 when it was forwarded to Allianz is not explained. That was a period of almost five months.

20. [20]
    Then a period of two years and five and a half months passed from 5 May 2004 before Allianz heard further from Spranklins by letter of 26 October 2006 advising that Mr Bennett had left the firm and enclosing the completed Additional Information Form and the applicant’s Statement of Loss and Damage pursuant to 547 Uniform Civil Procedure Rules 1999. In that letter Spranklins’ asked for available dates from Allianz to arrange a without prejudice conference.

21. [21]
    During that lengthy delay Spranklins issued proceedings on behalf of the applicant on 11 May 2004 in the face of the statutory prohibition in s 51A(1) of the Act. There is no explanation in the applicant’s material for this extensive delay. Mr McCartney in his affidavit deposes to the proceedings being commenced on 11 May 2004 and to the fact that the applicant’s file showed no action was taken by either party to progress the matter to a settlement. There was no obligation on Allianz to do anything to progress the matter in the absence of activity on the part of the applicant.

22. [22]
    Mr McCartney also deposes to the briefing of counsel on 3 February 2006 seeking advice as to how the matter should be progressed. That advice was received on 7 March 2006 but was not acted upon until the abovementioned letter to Allianz of 26 October 2006. No explanation is offered as to why this occurred. The solicitor handling the matter was Mr Bennett but he did not go into evidence. I infer that he did not do so because there was no reasonable explanation for the delay. The full delay from the receipt of the Gillett report on 16 December 2003 and Spranklins’ letter of 26 October 2006 was two months short of three years.

23. [23]
    Spranklins wrote again on 21 November 2006 chasing up their letter of 26 October 2006 in relation to the suggested without prejudice conference. Allianz replied by letter of 30 November 2006 advising that, given the lapse of time since they had last heard anything from the applicant they had finalised their claim. They noted that the proceedings issued by the applicant on 11 May 2004 were issued without meeting the s 51A requirements and that they required the proceedings to be discontinued and for an appropriate application to be made to the court under s 57(2)(b) of the Act to allow proceedings to be brought notwithstanding non-compliance.

24. [24]
    Spranklins acted upon that by sending a facsimile to the applicant’s counsel requesting advice on the necessity of the Application raised by Allianz. Even that facsimile, took 51 days between 21 November 2006 and 10 January 2007 to be sent. Even appreciating that the festive season intervened in that period, I would have thought that the receipt of the letter from Allianz raising the necessity of an application would have prompted the applicant’s solicitors to move immediately to address that situation. According to Mr McCartney, counsel’s advice was available on 2 March but instructions were not obtained from the applicant until 29 March nearly a month later. No explanation was given by either the applicant or her solicitors as to the reason for that delay.

25. [25]
    However, even after receiving instruction from the applicant on 29 March 2007 it took her solicitors until 10 August 2007 to make the application, a further delay of over four months. By letter dated 20 August 2007 Spranklins forwarded the application and supporting material to Allianz seeking their agreement to a consent order which was not agreed to. The application then came before me on 14 September 2007.

26. [26]
    I have identified above the absence of any explanation from the applicant’s solicitors for the delays outlined. The evidence of the applicant herself on the issue of delay is of similar paucity. In her affidavit of 3 August 2007 she advised being contacted by Mr McCartney in December 2006 in relation to the failure to comply with s 51A and said she instructed her solicitors to obtain an advice from counsel as to the steps to be taken to progress her claim. She says that she was again contacted by Mr McCartney on 29 March 2006 which is the day Mr McCartney deposes to obtaining instructions. It seems clear reading the affidavits of both Mr McCartney and the applicant that the delay of almost a month between the receipt of counsel’s advice as to the present application on 2 March 2007 and the obtaining of instructions from the applicant on 29 March 2007 resulted from the applicant’s solicitors failing to contact her between 2 March and 29 March seeking those instructions.

27. [27]
    As to the other delays I have identified, all the applicant has to say in her affidavit is that she has, at all times throughout the matter, relied totally on the advice of her solicitors, that she trusted the matter was being dealt with expeditiously and that during the period Mr Bennett had conduct of the file she would regularly contact him by telephone to determine the progress of the claim. She said that on each occasion she was told by Mr Bennett that the matter was being negotiated with Allianz and that she could expect a settlement soon. As I have said already there is no affidavit from Mr Bennett deposing to his conduct of the file.

28. [28]
    It is incumbent upon an applicant in such an application as this to provide as much detail as possible of the reason for any delay so that the court may scrutinise the explanation. I refer back to the words Keane JA said in Winters v Doyle^[8] set out in paragraph number 11 above.

29. [29]
    Two things emerge from that statement. Firstly, the obligation on the plaintiff to explain any delay and secondly the nature of the issue of delay being whether or not it related to compliance with the Act. The mere assertion by the applicant that she relied entirely on her solicitor and contacted him regularly does not really assist the court to determine the extent, if any, of the applicant’s actions in preventing the action from going to sleep as it did here for lengthy periods.

30. [30]
    Given the absence of any explanation of the various delays I have identified I am unable to find any relevant connection between the delay and the applicant’s obligation under s 51A of the Act to take part in a compulsory conference prior to the issue of proceedings. There is no suggestion for instance that the holding of such a conference within the limitation period was delayed because of the failure of the applicant’s injuries to stabilise within that period. As I have pointed out Dr Gillett reported in his report of 1 July 2003, received by the applicant’s solicitors on 16 December 2003 that her condition had stabilised. By then she had been examined also by Dr Dickinson on Allianz’s behalf on 12 June 2003 and Dr Dickinson’s report of 23 June 2003 was sent to Spranklins on 10 July 2003. As I have previously set out, Dr Dickinson regarded the applicant as not suffering any impairment as a result of the accident and not being disabled from doing anything she would reasonably wish to do. In other words, according to both medical reports the applicant’s injuries had stabilised and as at 16 December 2003, the date of receipt of the Gillett report by her solicitors, a compulsory conference could have been and should have been arranged. That is particularly so given that the limitation period was due to expire six months ahead on 11 July 2004.

31. [31]
    It seems to me that the delays I have identified were caused in the applicant’s solicitor’s office by the persistent failure to make any reasonable attempt to comply with the requirements of the Act. As was said by McGill DCJ in Bazley v Nominal Defendant^[9]: -

“The more important question, indeed the crucial question, is whether the delay which occurred is related to compliance with the Act. And that in turn depends on how it came about that the delay occurred. That there was no personal fault on the part of the applicant is of assistance in such an application, but it is not sufficient. If the solicitor’s delay was caused by attempts, possibly even misguided or inefficient attempts, to comply with the requirements of the Act, then an exercise of the power under s 57 may well be appropriate. But where the delay was simply due to administrative inefficiency on the part of the solicitor or indeed a persistent failure to make any reasonable attempt to comply with the requirements of the Act, it seems to me to follow from the approach in Winters that the applicant has not shown good grounds for an order under s 57, even in the absence of prejudice to the respondent.”

32. [32]
    In my view this situation is akin to that which McGill DCJ was considering in that case. The applicant argued that she had good reason to commence the proceedings on 11 May 2004 and the only reason she is prevented from relying on and prosecuting them is the pre-court requirements of the Act. I don’t agree. Were that the case, any applicant could ignore the pre-court requirements of the Act, issue proceedings, and then be allowed to proceed with them in disregard of those requirements.

33. [33]
    The applicant relied upon two recent decisions where similar applications were successful. The first is Osman v Charles & Anor^[10], a decision of Kingham DCJ of 8 March 2007. In that case the accident occurred on 29 March 2002 and the parties consented to orders on 28 September 2005 by which the applicant was granted leave to commence proceedings within 60 days of, relevantly, a court order dispensing with the requirement to hold a compulsory conference. Such an order was made on 8 May 2006 and pursuant to the consent order proceedings should have been commenced within 60 days thereafter. It was due to an error on the part of the applicant’s solicitors that the proceedings were not commenced in time.

34. [34]
    However, her Honour found that apart from some periods of inactivity early on, there had been extensive and ongoing communications between the parties’ solicitors, together with exchanges of information throughout the history of the matter. The Notice of Accident Claim Form was given by the applicant on 27 June 2002 and liability admitted on 20 December 2002, two years prior to the expiration of the limited period.

35. [35]
    After that admission of liability exchanges between the parties continued relating to the provision of information by the applicant on the issue of quantum. Although her Honour found that such information had been provided in a piecemeal and incomplete way as a result of the applicant’s residence in Columbia, his limited command of English and associated delays caused by translation requirements, she did not accept that it was a case where the applicant had let the matter lie dormant. She found that the actions by the applicant in pursuing the claim prior to the limitation period expiration, together with his conduct before and after the consent order abovementioned too, were sufficient to provide the context for considering whether or not her discretion should be exercised to extend time. In all the circumstances her Honour found that, against the background of the entire prosecution of the matter by the applicant, his solicitor’s failure, by oversight, to commence proceedings within time should not result in the applicant being denied the right to pursue his claim. Her Honour extended time to commence proceedings.

36. [36]
    That case was one where the oversight in commencing proceedings within time was made in the midst of continuance activity in prosecuting the claim, which is a far cry from the situation in this case.

37. [37]
    The second case was Saltner v Watson & Anor^[11], a decision of Wilson J of the Supreme Court delivered on 8 August 2007. In that case the accident occurred on 14 March 2004 and the Notice of Accident Claim Form served on 4 May 2004. The respondent finally confirmed compliance on 9 June 2004. On 29 June 2004, the second respondent denied liability on the basis that the applicant was a licensed driver and a passenger in the subject vehicle driven by the first respondent who was a learner driver. The second respondent asserted that it was the applicant’s responsibility to supervise the learner driver and that instead of doing that the applicant went to sleep and was asleep at the time of the accident.

38. [38]
    The matter progressed but the limitation period of 14 March 2007 expired without the applicant being told of the significance of that date. Prior to that however, both the applicant’s and the second respondent’s solicitors had cooperated in getting together relevant information and reports and the applicant’s solicitors had responded in a timely manner for any requests for information. The second respondent had agreed to pay the not insubstantial fees of $8,840 to allow the applicant, a poorly educated indigenous man to have surgery by a prosthodontist, Dr William Bruce. That surgery was booked in for 8 March 2007, six days before the limitation period expired. However, the second respondent’s solicitors raised some issues in relation to a pre-existing condition and that surgery was cancelled to allow the applicant’s solicitors to make further inquiries of the Rockhampton Community Dental Clinical and to otherwise respond to the second respondent’s request.

39. [39]
    The limitation period expired due to a failure in the applicant’s solicitors’ administrative system in that the limitation period expiry date was not put in the 2006 office diary and, hence, was not carried forward into the 2007 diary. After considering all the circumstances, her Honour found that there had been constant attention to the file by the applicant’s solicitors and constructive communication between the parties. In other words, there had been no suggestion that the file had gone to sleep at any stage. Further, the application for the extension of time was made within just over a week of the applicant’s solicitors being alerted to the oversight. Further, as I set out, there was clearly some further work to be done before it could be said that the applicant’s injuries had stabilised.

40. [40]
    Unfortunately, in the present case none of the features abovementioned are present. In all the circumstances I am not persuaded that my discretion should be exercised in favour of the applicant. The application is dismissed with costs.