Jonathan v Mangera[2015] QDC 195

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks an order pursuant to s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) (“MAIA”) (incorrectly said in the application to be the Motor Vehicles Insurance Act) that he be given leave to commence proceeding within 60 days of one a number of possible events which must all, in the circumstance of this matter, necessarily occur after the expiration of the normal three year limitation period. Although the application was heard within the limitation period, the application was opposed.

2. [2]
   The applicant was involved in a motor vehicle accident on 4 August 2012 and claims to have suffered personal injury. In compliance with the MAIA he, through his solicitors, served on the insurer of the other motor vehicle (the second respondent), which vehicle was driven by the first respondent, the relevant notices required by the MAIA. The insurer accepted the notices were compliant with the requirements of the MAIA and subsequently admitted liability in full.

3. [3]
   The three year limitation period expired on 3 August 2015 and so the applicant is precluded from bringing an action to recover damages unless an order extending time under s 57(2)(b) of the MAIA is made. The reason he has not commenced proceedings is of course that he has not yet complied with some of the requirements of the MAIA. In particular, the insurer has not yet had an opportunity to have him medically examined, and there has not yet been the settlement conference envisaged by s 51A of the MAIA. Other procedural matters have also not yet been completed.

4. [4]
   The problem has arisen because the applicant’s solicitors were unable to locate him after about March 2013 until he again made contact on 29 July 2015, only two days before the hearing of this application.

The Law

5. [5]
   Section 57 of the MAIA provides:

1. (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. (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.

6. [6]
   The order sought is one effectively extending the time in which to commence proceedings until a day beyond the limitation period and within 60 days after the happening of any one of the possible events identified in the application, related to the holding of the settlement conference and exchanges of final offers or to an agreement by the parties or order of the court dispensing with the requirement to hold such a conference.

7. [7]
   A decision to so extend the time involves the exercise of the Court’s discretion. In Paterson v Leigh & Anor [2008] QSC 277, McMeekin J indicated the legislation provides that if a claimant gives a notice of motor vehicle accident claim within the period of limitation (as here occurred) then that claimant might still bring a proceeding in the Court based on the claim even though the period of limitation then ends, but can only bring such proceeding if the proceedings are brought within six months of giving the notice (which time has long expired) or within such longer period as might be allowed by the Court. His Honour referred to a number of decisions of the Court of Appeal concerning such applications and at paragraph [8] said:

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

1. (a)
   The discretion to be exercised in respect of an application pursuant to s 57(2)(b) of the Act is unfettered;

2. (b)
   The onus lies on the applicant to show good reason why the discretion ought to be exercised in his or her favour;

3. (c)
   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. (d)
   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. (e)
   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. (f)
   The length of any delay is important and possible prejudice to the defendant is relevant;

8. (h)
   [sic] Depriving a defendant of the complete defence afforded by the statutory time bar is an important matter;

1. (i)
   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;

10. (j)
    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.”

I have emphasised some passages in his Honour’s reasons because of their importance to the exercise of the discretion in this particular matter.

Facts

8. [8]
   The affidavits filed in this matter indicate the following sequence of relevant events:

9. [9]
   On the hearing of the application on 31 July I gave the applicant’s counsel leave to read and file an affidavit of Hollie Rutledge, an employee of the applicant’s solicitors. She attests to the following:

1. (a)
   At 3.55 pm on 29 July 2015 she received a phone call from the applicant in which he apologised for not having been in contact sooner and said he had “been overseas for the past couple of years”. He was asked if he had been on holiday or working and said “mainly overseas to holiday”. He indicated his parents had told him that his solicitors were trying to get in touch with him.

2. (b)
   Ms Rutledge said she told the applicant he would need to attend their office “quite urgently as the statutory limitation period is due to expire on 4 August 2015”, and that they had an application returnable before the court on Friday to extend that limitation period.

3. (c)
   She says the applicant indicated he would like to progress his claim but would need to speak to his employer to see if he could get time off to come to their office. He enquired whether they would be open for the Show Holiday (Wednesday, 12 August). She indicated that they would like to see him “well before then due to time restrictions”. He indicated he would speak to his employer and asked if he could ring her on the following day, namely 30 July. Ms Rutledge obtained his mobile phone number from the applicant but he said he did “not have an address at the moment as (he had) just arrived back in the country”.

4. (d)
   She spoke to her supervisor and was told to ring the applicant back and explain that he needed to see him on Thursday, 30 July. She sent the applicant a text (at 3.56 pm on that day, 29 July) advising they needed him to urgently contact her to arrange a meeting. The text also advised him she intended taking the phone she had sent the text from with her when she went home so she could be contacted after hours. She also says she tried to ring him at least 20 times on that day, without response.

5. (e)
   She continued to attempt to contact him on 30 July.

6. (f)
   Finally at 3.45pm on 30 July (the afternoon before the hearing of the application before me), the applicant phoned Ms Rutledge. He apologised for not “getting back to you sooner” and said he had “left (his) phone at home.” (I interpose that of course does not explain his not responding to her text request or calls of the previous day.) Ms Rutledge asked if the applicant was able to attend their office on the morning of 30 July but he said: “Definitely not, I cannot get the time off work.” She then asked him to keep his phone on in case they needed to contact him.

Submissions

10. [10]
    The applicant’s counsel submitted that whilst it was clear contact with the applicant had been lost, it “could not be said that the applicant was aware of the consequences of failure to keep in contact”. This of course relates to the issue of his knowledge of the limitation period. She submitted that because he had now made contact it was likely he would attend to “sort out his file” in the very near future. She submitted that very little, if any, prejudice had arisen for the second respondent and that, in circumstances where liability has been admitted, any issues regarding the applicant’s injuries can be properly resolved by the adequate briefing of the doctors.

11. [11]
    She submitted that the alternate orders sought by the second respondent’s counsel with respect to the future conduct of the matter were reasonable and appropriate.

12. [12]
    Counsel for the second respondent submitted that the application ought to be dismissed and, alternatively, if leave was given under s 57 of the MAIA she sought conditions upon the grant of any leave. It was these conditions that the applicant’s counsel said were reasonable.

13. [13]
    Counsel for the second respondent submitted the following factors were relevant to the exercise of my discretion and supported dismissal of the application:

1. The applicant had failed to comply with the second respondent’s requests for information on 2 January, 25 March, 5 July 2013 and 7 January 2014 in breach of s 45 of the MAIA.

2. The applicant had failed to comply with the second respondent’s request for additional information on 7 January 2014 in breach of s 37A(3)(b)(i) of the MAIA.

3. The applicant had failed to attend for a medical examination on 31 July 2013, in breach of s 46A of the MAIA.

4. The applicant had, in breach of s 41(5) of the MAIA, failed to respond to offers of settlement of 16 June and 18 July 2014.

5. The claim had not progressed for over 28 months, since March 2013, and the second respondent now faced possible significant prejudice in its conduct of the matter.

6. The applicant effectively elected not to pursue his claim for well over two years.

7. The applicant had not made a conscientious effort to comply with the MAIA, inconsistent with the stated objective of the MAIA “to encourage the speedy resolution” of claims under the MAIA.

8. It could be inferred, consistent with prudent legal practice, that advice had been given to the applicant when he gave instructions to his solicitors about relevant time limits, but he had chosen to ignore them.

14. [14]
    It is apparent that a number of those matters, in particular subparagraphs 1, 2, 3, 4, 6 and 7 are clearly correct.

15. [15]
    I wish to say something about the submission of possible prejudice and the submission that in accordance with prudent legal practice the applicant would have been advised of relevant limitation periods. Before doing so however, I will refer to a number of other cases relevant to applications under s 57(2)(b) of the MAIA.

16. [16]
    In Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378, Chesterman J, as his Honour then was, said at paragraph [82]:

“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.” (my emphasis)

17. [17]
    So too observations of Keene JA, as his Honour then was, in Winters v Doyle & Anor [2006] 2 Qd R 285 at [24] are relevant. 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 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.” (my emphasis)

18. [18]
    In Ward v Wiltshire Australia Pty Ltd & Anor [2008] QCA 93 (“Ward”), Fraser JA, after referring to the fact that a notice of accident claim form, coupled with information that might later be sought by an insurer under, for example, ss37, 37A, 41, 45 or 46A of the MAIA, was likely to inform the insurer significantly of details of the claim, said at [69]:

“Compliance by a claimant with those provisions is apt also to ameliorate prejudice that otherwise might flow from an extension of the limitation period under s 57(2)(b). Section 57 provides that the fact that such a notice of claim has been given before expiry of the limitation period is a basis upon which a claimant may rely to justify suing after expiry of the limitation period. Whilst the strength of this consideration as a discretionary factor might vary from case to case, it is plainly one of the relevant considerations in favour of the exercise of the discretion to extend time.”

19. [19]
    I observe that in this case the notice of accident contains little information which would assist in an understanding of the applicant’s claim, and that the applicant, as I have said, consistently failed to provide information sought about his circumstances. That dearth of information would, in my view, have significantly prejudiced the second defendant’s capacity to make an accurate and practical assessment of the applicant’s claim at that stage. Although reports from Dr Wallace and Ms Stephenson have been provided, the applicant’s conduct has meant the respondent has not been able to itself have the applicant examined.

20. [20]
    By contrast, in Ward FraserJA said at [83]:

“Significantly, the appellant gave an early and detailed notice of claim; she provided medical reports and other relevant information; liability was admitted after investigation; and the appellant was independently examined promptly or, at least, as promptly as the second respondent apparently wished.”

21. [21]
    Importantly, his Honour said at [86] and following:

“Whilst there was no demonstrated prejudice to the respondents and a fair trial is likely if an extension is granted, there remains the possibility of prejudice created by the appellant’s apparent decision to abandon her claim against the second respondent in favour of proceedings against her former solicitor.

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.

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.”

Consideration

22. [22]
    In my view, in the circumstances of this case, the applicant’s decision to effectively do nothing to advance his claim from March 2013 to date and his failure to attend upon independent medical examination as requested means that the second respondent has been denied the opportunity to have the applicant examined in a timely fashion. That conduct may now significantly prejudice it. If, for example, he is now found on examination to be free of symptoms, it is likely to be effectively impossible for the second respondent to obtain evidence, other than that based solely on the applicant’s own evidence or statements, as to when that might have happened. So too, if his condition has worsened, it is impossible or difficult for the second respondent 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.

23. [23]
    To adopt the words of Fraser JA, whilst “the possibility of prejudice on this basis is speculative” it has that character because, or very significantly because, of the applicant’s decision to absent himself from the progression of his claim for well over two years.

24. [24]
    Furthermore, because of his expressed indifference to the need to attend his solicitors in the days prior to the hearing of the application, the evidence advanced on his behalf is unsatisfactory in explaining how, if at all, his condition has changed since he saw Dr Wallace and Ms Stephenson or how his condition now affects his claim for damages. I know virtually nothing of his claim. The second respondent too knows little about him and has not had any opportunity, and can never have a timely opportunity to test what he has told or exhibited to his own doctors, or may tell or exhibit to any doctors who now examine him.

25. [25]
    I also find, contrary to his counsel’s submissions, it is improbable that the fact of and significance of limitation periods was not explained to the applicant at the time or shortly after he first consulted his solicitors. Significant experience in this field informs me that the provision of such advice is customary. I would find it surprising in the extreme if solicitors experienced in injury compensation matters, as the applicant’s solicitors are, would not have provided such advice to the applicant. In the absence of evidence to the contrary from the applicant or his solicitors, even having regard to the content of the affidavit of MsRutledge to which I have referred, I find the applicant was so advised and has chosen to ignore or forgot such advice.

Conclusion and Orders

26. [26]
    In the circumstances, I conclude that to allow the applicant to now bring an action outside the limitation period has a significant risk of prejudice to the second respondent. The applicant has not demonstrated good reason for me to exercise the discretion to extend time in his favour. He has failed to make any conscientious effort, or indeed any effort at all, to comply with the requirements of the MAIA but chose to absent himself from the jurisdiction without providing any instructions to his solicitors and regardless of the consequences. In my view, the interests of justice, despite the fact that it means an end to the applicant’s admitted claim, dictate that the application be dismissed.

27. [27]
    I so order. I will also order that the applicant pay the second respondent’s costs of the application unless the parties are agreed about another costs order or unless either of the parties provide written submissions seeking another order to my associate by 3pm Friday, 7 August 2015.