DISTRICT COURT OF QUEENSLAND

The issue

1. [1]
   Mrs Webber says that she was injured in a motor vehicle accident on 22 January 2004. The usual limitation period of three years expired on 22 January 2007. Proceedings had not been commenced by then. The defendant agreed to extend the limitation period to 22 July 2007. No proceedings were commenced by that date.

2. [2]
   This Court has power to extend the period of limitation.^[1] She requests an extension. The defendant says that it should not be granted. Should the Court extend time, or refuse her application?

The decided cases

3. [3]
   Careful submissions were made by counsel, experienced in this area of the law. References were made the key decisions of the Court of Appeal, and to helpful decisions of single judges, in the Supreme Court and this Court.

4. [4]
   The Court of Appeal decisions are Morrison-Gardiner v Car Choice P/L & Another [2004] QCA 480; Winters v Doyle & Another [2006] QCA 110; Spencer v Nominal Defendant [2007] QCA 254.

5. [5]
   The decision of the High Court in Russo v Aiello (2003) HCA 53 was mentioned.  However, the statutory requirements of the Motor Accident Act 1988 (NSW) were different:

“A court must dismiss proceedings commenced in respect of a late claim if the court is satisfied that the claimant does not have a full and satisfactory explanation for the delay in making the claim”.

6. [6]
   In this case, attention should be focused on these issues:

• The length of the delay;
• The reasons for the delay;
• Any prejudice to the defendant;
• The roles of the plaintiff and her solicitors;
• The interests of justice, from the point of view of the community, the plaintiff, and the defendant;
• The impact of any contract about an extension of time;
• The exercise of the Court’s discretion.

The facts

7. [7]
   Mrs Webber, and her husband, say that they were hurt in the accident of 22 January 2004. She was 22 years of age. She was born in Thailand, had a brief education, and worked there as a cook, barmaid and waitress. She married Mr Morris Webber there, and they moved to Australia in 2003. She spoke and read only a little English. She had two young children.

8. [8]
   Mr and Mrs Webber went to see personal injury solicitors, then called Baker Johnson, on 18 February 2004. Mr Webber gave the instructions. A notice was given to the defendant, on the next day. The defendant responded to that notice on 1 March 2004. It admitted liability for the accident, on 13 April 2004.

9. [9]
   The affidavits and chronology prepared by counsel, show that slow but reasonably continuous steps were taken by her solicitors. They also acted for Mr Webber, and it may be assumed here that similar progress was made in his case. Her claim did not go to sleep. The longest period of inactivity seems to have been about four and a half months, between 22 June and 8 November 2004. Otherwise, progress was made, though not in a focused or efficient way.

10. [10]
    Towards the end of 2006, Mr Johnson realised that the significant date of 22 January 2007 was fast approaching. He needed to negotiate extensions of time with the defendant’s solicitors, or ask the Court to dispense with the compulsory steps before action, so that a claim could be filed.

11. [11]
    In Mr Webber’s case, the solicitors filed an application to dispense with the requirements of the Motor Accidents Insurance Act, in this Court, on 19 December 2006. That resulted in a consent order in Mr Webber’s favour, on 8 January 2007. Mr Webber then commenced proceedings on 11 January 2007, when a claim was filed in this Court. Mr Webber’s claim has not yet been resolved.

12. [12]
    At about the end of October 2006, Mr and Mrs Webber separated. They had been living at his house in Jindalee, Brisbane. They then had three children. She took two of the children and went to live in Rockhampton, with his brother and sister in law. Mr Webber knew where they were, and kept in telephone contact with them. She did not give her new address to her solicitors.

13. [13]
    Curiously, Mr Johnson did not simply ask Mr Webber where his wife was. Rather, being concerned, he retained a private investigator to find her. That was done in mid January 2007. On 10 January 2007 Mr Johnson wrote to the defendant’s solicitor, asking for a three month extension of limitation period. About the same time, on 11 January the defendant’s solicitors delivered a request for information, asking about twelve separate matters. Their letter also said this about the limitation period:

“We note that the limitation period will soon expire.

You can bring a chamber application to dispense with the compulsory conference… Our client, if at all reasonably possible, wishes to avoid the cost of such an application being incurred.

Our client suggests that an easy and low-cost alternative proposal, that protects the position of both the claimant and the insurer, is for our client to agree for the statutory time limit imposed by the Limitations of Actions Act 1974 not be raised as a defence in particular circumstances, that is, that the proceedings are instituted by your client, after the holding of the compulsory conference and the exchange of mandatory final offers (assuming the matter doesn’t settle) within the time limits prescribed by s 51D(1)(a) and s 51C(6) of the Motor Accident Insurance Act 1994 as amended.”

14. [14]
    Mrs Webber’s solicitors had a general concern about the conduct of files where they did not have specific instructions from a client to make an application to extend time. They had contacted an officer of the Queensland Law Society on 4 October 2006 about that concern. According to the evidence here:

“The advice of Howard Moses (of the client advisory section of the QLS) was that a law firm cannot make an application to the Court to extend the statutory limitation date without the client’s instructions to do so. He further stated that it would be unethical to make such an application without the client’s instructions even though it would be in the client’s best interest”.

15. [15]
    There is no evidence of any written client agreement. The scope of the solicitors’ retainer is uncertain. Presumably, they accepted the advice from the Law Society, because they were uncertain about what they should do.

16. [16]
    On 19 January 2007 Mrs Webber’s solicitors wrote accordingly to the other side, to say that they had to obtain strict instructions from their client, who they were unable to contact, before consenting to an offer subject to conditions. They requested a six months extension of time to obtain further instructions from her.

17. [17]
    On 20 January 2007 Mrs Webber was seriously injured in a Rockhampton car accident. Her sister in law was killed. She was taken to the Princess Alexandra Hospital, where she remained until 6 February. She required surgery to her pelvis and back.

18. [18]
    Her solicitors discovered that she was in hospital. They pointed this out to the other side in a letter of 24 January 2007. It asked for a “blanket six month extension as previously requested.” Mrs Webber had instructed them that she would be in hospital for three to four months”. A reply of 29 January 2007 mentioned the fact that an offer of settlement on behalf of the defendant had been recently made, and also disclosed some documents. The letter confirmed that the defendant had made full and complete disclosure to the plaintiff. Some further disclosure followed in the letter of 9 February 2007, and then again on 23 March 2007. That letter also asked for more information from the plaintiff.

19. [19]
    On 9 February 2007 the defendant’s solicitors agreed to extend the limitation period to 22 July 2007.

20. [20]
    After that, Mrs Webber’s solicitors continued to collect further information, and provided it to the defendant’s solicitors. 13 February 2007 saw an updated Statement of Loss and Damage sent to the defendant’s solicitors. On 3 March 2007 the defendant’s solicitors made some further disclosure, and asked for copies of various employment records relating to the plaintiff. Her solicitors continued to take further steps, until the extended limitation period expired on 22 July 2007.

21. [21]
    The defendant’s solicitors have declined to further extend time, hence this application.

22. [22]
    After her release from hospital on 6 February 2007, Mrs Webber went to stay for about two months with her former husband. She then went to a friend at Inala. She was back in effective contact with her solicitors at least by 13 February, when the further Statement of Loss and Damage was signed.

23. [23]
    During her three or four years in Australia, Mrs Webber made some progress in English. She went to the Richlands TAFE, studied the English language and obtained a Level Two certificate in aged care. Her lectures and the examinations were in English. Although no doubt improved, her language skills remained weak.

A contract?

24. [24]
    The defendant says granting Mrs Webber’s application would amount to a breach of a contract between them. The foundation of the submission is the judgment of Keane JA in Spencer v Nominal Defendant. He said this:

“[3] On 14 July 2006 a consent order was made which dispensed with a compulsory conference and the exchange of final written offers of settlement. This order also provided for an action for damages to be started by the applicant in respect of the claim no later than 14 July 2006 …. The respondent had signed the consent order on 6 July 2006.

[4] There was further correspondence between the parties, but, in the upshot, the applicant did not commence proceedings in respect of his claim until 5 October 2006.

[13] … The making of the order sought by the application would defeat the respondent’s rights under the consent order of 14 July 2006. In this regard, the respondent agreed to facilitate the commencement of the action by dispensing with requirements of the Act on the basis that the claim was to be started no later than 14 July 2006. A consent order operates both as a contract and an order of the Court.^[2] Whether the contract embodied in the consent order can be set aside depends on ‘the existence of a ground which would suffice to render a simple contract void or voidable or to entitle a party to equitable relief against it’.^[3] No such ground is said to exist in this case. To accede to the application under s 57(2)(b) of the Act would be to deprive the respondent of the benefit of the contract which underlay the consent order of 14 July 2006 where there is no other basis for setting aside that bargain. It is unnecessary to decide whether s 57(2)(b) authorises such a course. Even if the power conferred on the Court by s 57(2)(b) extends to the destruction of contractual rights, it is a power which should be exercised only for the most compelling reasons because of the prejudice which it will inflict on the other party….”

25. [25]
    It should be apparent here that there is no factual foundation for a similar contractual agreement. There was no consent order in this case. There was merely an agreement by the defendant to extend the limitation period – that is, not to rely on its strict legal rights during a certain period of time. The extension was made at the request of the plaintiff’s solicitors. However, the plaintiff did not promise to commence proceedings within a certain time. There was no agreement to dispense with the statutory steps. The factual situation therefore is quite different.

Discretionary considerations

26. [26]
    In late 2006 and early 2007, the plaintiff’s solicitors tried hard to protect Mrs Webber’s position. The felt constrained by the Law Society’s advice not to make an application without instructions. There is no evidence of any wider retainer. They were rewarded with an extension of time until 22 July. That being achieved, the necessary focus was again lost. Matters drifted past 22 July. Mr Johnson agreed that the list of twelve demands delivered on 11 January could have been dealt with in a relatively short time. He also agreed that there was no reason why he could not have convened the necessary compulsory conference in time. His firm’s correspondence from 13 September 2006 to 5 December shows that the need for a conference was not forgotten. Unfortunately, there was no recognition of a need to hold it before time ran out. The unfocused efforts of the plaintiff’s solicitors over a long period of time finally resulted in the arrival of 22 July this year, without proceedings having been commenced, or the limitation period extended, or the mandatory statutory steps dispensed with.

27. [27]
    It was said that Mrs Webber did not take a sufficient interest in her own case. That is true. However, her position of considerable disadvantage, her reliance on her husband for much of the time, the marriage break-up and her serious injuries in January this year, all contributed to the position in which she found herself. The evidence does not show that she had any appreciation of the statutory time limit of 3 years. She left matters in the hands of her solicitor and (for much of the time) in the hands of her husband. It would be quite unrealistic to attach any blame to her.

28. [28]
    If her application is successful, the defendant will lose the benefit of the defence, that the limitation period has expired. Apart from that, no other prejudice has been demonstrated. In fact, in a case where liability was admitted long ago, it is now apparent that the defendant is very probably in possession of all the available information about her. It was able to make an offer of settlement some time ago. Exchanges of material, and disclosure, continued almost up until 22 July.

29. [29]
    In any case, Mrs Webber’s unavailability, from around the end of October 2006 up until about mid February 2007, was not an effective cause of her proceedings not being commenced before 22 July. The cause was her solicitor’s ineffective activities on her behalf.

30. [30]
    Finally, it is impossible to overlook the fact that her husband’s claim has still not been finalised. It would be unjust to prevent her claim from continuing, along with his.

31. [31]
    In all the circumstances, it is clear that this Court should exercise the discretion in her favour. Mr Morgan has handed up a draft order. Subject to any further submissions about that order, including the order about costs, there will be orders as per the draft.