Williams v Furner[2016] QDC 172

DISTRICT COURT OF QUEENSLAND

Nature of the Proceeding

1. [1]
   By originating application made 28 June 2016, the Applicant applies for orders, pursuant to section 57(2)(b) of the Motor Accident Insurance Act 1994(Qld) (‘the Act’) seeking leave to commence proceedings upon the happening of certain events, and of necessity, extension of the limitation period.

The Applicant

1. [1]
   The Applicant’s solicitors bring the present application before the Court, not on specific instructions, but by the operation of a general retainer with the Applicant. That is so because the Applicant has not made contact with them since at least October 2013.

2. [2]
   Despite repeated attempts by them (including the use of a private investigator), the Applicant’s solicitors have been unable to re-establish contact with the Applicant, and cannot be certain of his whereabouts.^[1]

Background

3. [3]
   The Applicant claims that he suffered personal injury as a result of a motor vehicle accident which occurred on 5 January 2013 (‘Accident’). The First Respondent was the driver of a motor vehicle and the Second Respondent is the compulsory third party insurer of the First Respondent’s motor vehicle. The Applicant completed and served a Notice of Accident Claim Form^[2](‘Notice of Accident Claim’) on the Second Respondent on or about 21 January 2013.

4. [4]
   On 15 March 2013, the Second Respondent admitted liability for the accident pursuant to section 41 of the Act, but not for any injuries, losses or damages occasioned to the Applicant.^[3]

5. [5]
   Pursuant to section 45 of the Act, the Second Respondent requested information concerning;

1. (a)
   the Applicant’s medical condition (including any changes relevant to the extent of disability or financial loss);

2. (b)
   involvement in rehabilitation; and

3. (c)
   whether the Applicant had made arrangements to undergo a medico-legal examination.

(‘Section 45 Request’)

6. [6]
   The Affidavit of Tracie Jaye Smith, of the Second Respondent’s solicitors, of 1 July 2016 sets out the subsequent exchanges of correspondence between the Applicant’s solicitors and the Second Respondent. Despite numerous and repeated requests, the Second Respondent did not receive a response to their Section 45 Request and did not receive any update as to the Applicant’s intentions with respect to his claim.

7. [7]
   On 16 October 2013, the Applicant’s solicitor wrote to the Second Respondent, on the instructions of the Applicant, and provided information pertaining to the Applicant’s symptoms, medical treatment and current work situation.^[4]

8. [8]
   On 25 November 2013, the Applicant’s solicitors advised the Second Respondent that that the Applicant had attended an appointment with Dr Scott Campbell, a neurosurgeon, to facilitate a medico-legal opinion regarding his injuries.^[5]However, no report was generated from this appointment. A subsequent appointment was scheduled with Dr Mark Shaw, an orthopaedic surgeon, in December 2013, however the Applicant failed to attend.^[6]

9. [9]
   It is clear the Applicant’s solicitors, in the period following October 2013, lost regular contact with their client and were unable to take instructions to progress the matter. This appears to be, at least partly, due to the fact that the Applicant was incarcerated for a significant period of time.^[7]The Second Respondent was eventually advised by the Applicant’s mother, after numerous enquiries^[8], that the Applicant was due to be released from prison in or around August 2015.^[9]However, by 30 November 2015, the Applicant’s solicitors were still unable to contact the Applicant and could not be certain of his whereabouts.^[10]

10. [10]
    On 24 March 2016, the Second Respondent provided an undertaking not to rely upon section 11 of the Limitations of Actions 1974(Qld) for a further 3 months on the condition that proceedings were commenced prior to 12pm on 5 July 2016. This was the second such undertaking provided by the Second Respondent. The undertaking of the Second Respondent was requested by the Applicant’s solicitors in the absence of any formal instructions from the Applicant.

11. [11]
    The Applicant concedes he has not complied with sections 51A (convening of a compulsory conference) and 51C (exchanging of mandatory final offers) of the Act. Accordingly, I accept the Second Respondent’s submission that the Applicant’s claim has not progressed since March 2013.

12. [12]
    Accordingly, the claim cannot proceed but for the operation of section 57(2)(b) of the Act, seeking the leave of the Court to extend the limitation period in which a claim is to be brought. It is not in dispute between the parties that the limitation period, in respect of the Applicant’s claim, expired on 5 July 2016.

Relevant Law – Extension of the Limitation Period

13. [13]
    Section 57(2)(b) of the Act states:

57 Alteration of period of limitation

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

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

(b)a longer period allowed by the court.

(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.

(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.

(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.

(emphasis added)

14. [14]
    Under section 57(2)(b) of the Act, leave to commence proceedings after the end of the period of limitation is not granted as of right and requires the exercise of the Court’s discretion. In this regard, mere service of the Notice of Accident Claim is insufficient for the Applicant to be granted leave.

15. [15]
    The Applicant has referred to the observations of His Honour Judge Robertson in McL v McL[2005] QDC 136 where he noted,

‘there is no doubt that the court has an unfettered discretion to allow commencement of proceedings in situations of urgency, primarily when expiry of the limitation period is imminent.’^[11]

16. [16]
    The favourable exercise of discretion to allow parties to commence proceedings after the expiration of a limitation period is grounded firmly in the principle that litigants should be afforded every reasonable opportunity to raise actions and not be permanently ‘locked out’ of proceedings merely because of the lapse of time.

17. [17]
    However, as was stated most recently by Morrison JA (with whom Boddice and Burns JJ agreed) in Jonathan v Mangera & Anor^[12], referring to the operation of section 57(2)(b) of the Act:

‘…The power is discretionary, and that discretion is to be exercised with recognition of the context in which it operates. The objects of the Act are to keep the costs of insurance down and encourage the speedy resolution of personal injury claims. The Act is designed to achieve prompt assessment of claims by the insurer, which is to be given comprehensive information by the claimant, relatively soon after the accident. Claims should be prosecuted diligently. Further, there are provisions which encourage both sides to make offers of settlement’^[13]

18. [18]
    In Morrison-Gardiner v Car Choice Pty Ltd & Anor^[14], Chesterman J, when referring to the discretion afforded by the operation of section 57(2)(b), noted;

‘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’^[15]

19. [19]
    Both the Applicant and the Second Respondent have referred me to the decision of McMeekin J in Paterson v Leigh & Anor^[16]where His Honour distilled the various factors relevant to applications of this specific kind. His Honour noted:

‘The principles that seem to be to emerge from these cases are:

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

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

(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;

(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 theapplication;

(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;

(f)The length of any delay is important and possible prejudice to the defendant is relevant;

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

(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; and

(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 relevantfactors.’^[17]

Exercise of Discretion – Application of Relevant Principles

A)Delay

20. [20]
    The Applicant cites the incarceration of the Applicant as the primary reason for the delay in the progress of the proceedings. Consequently, and as outlined above at paragraph [9], the Applicant’s solicitors have been unable to regularly contact or locate the Applicant to obtain instructions to progress the matter. At this juncture, it should be noted that the Applicant’s solicitors undertook various and repeated methods, including the use of a private investigator, to locate the Applicant. However, such methods remain unsuccessful.

21. [21]
    Neither party can state with certainty the exact period of time in which the Applicant was incarcerated. The Second Respondent has submitted that as a rough estimate, the Applicant may have been imprisoned for a period of 16 months of the 42 months since the date of the accident.^[18]Despite this relatively lengthy period of imprisonment, the Applicant has nonetheless failed to comply with his obligations under the Act, both prior to, and after his period of incarceration. The Second Respondent correctly submits that during his period of incarceration, there no was substantial impediment to the Applicant progressing the matter, by, for example, providing information requested by the Second Respondent, or at the very least, providing instructions to his solicitors.

22. [22]
    Despite the diligent efforts of the Applicant’s solicitors, I accept the Second Respondent’s submission that these particular circumstances cannot be characterised as a situation where the Applicant has made ‘conscientious effortsto comply’ with the procedural requirements of the Act, to adopt the wording of Chesterman J in Morrison-Gardiner v Car Choice Pty Ltd & Anor.^[19]It is clear that the Applicant was aware of his obligations to attend medico-legal appointment and provide relevant information to the Second Respondent in order to pursue his claim but nevertheless failed to uphold such obligations. Accordingly, I accept the Second Respondent’s submission that the Applicant’s claim, has not, in any meaningful way, progressed since the Notice of Accident Claim was served on the Second Respondent in January 2013.

23. [23]
    Further, I do not consider the Applicant’s claim to represent a type of case where the Second Respondent, as the insurer, has been given detailed notice of the claim or comprehensive information relatively soon after the Accident. It took until 16 October 2013, some ten months after the Accident, for the Second Respondent to be given any sort of detail as to the particulars of the Applicant’s injury or level of incapacitation.^[20]Accordingly, I accept the Second Respondent’s submission, that in all of the circumstances, the Second Respondent knows very little about the Applicant’s claim.

B)Prejudice to the Respondent

24. [24]
    The Applicant submits that despite the passage of a time, the Second Respondent has not and will not suffer any prejudice due to the Applicant’s delay in progressing the matter. In this regard, the Applicant has referred me to the authority of Allianz Australia Insurance Limited v Corowa [2016] QCA 170, a decision in which the Queensland Court of Appeal had occasion to consider whether a Plaintiff’s claim should be dismissed on the basis of delay and prejudice.

25. [25]
    In Corowa, the application was brought by the insurer to dismiss the proceedings on the basis of want of prosecution, pursuant to rule 280(1) of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’). Despite the Plaintiff’s failure to comply with the obligations of the UCPR and progress the litigation, the application of the insurer to dismiss the claim was not granted at first instance nor on appeal.

26. [26]
    On the issue of prejudice, the applicant in Corowa argued that prejudice would flow from the death of a material witness, despite the fact that a sworn statement of the now deceased witness was admissible at trial.

27. [27]
    I do not consider the decision in Corowa to be of any particular assistance to the Applicant in the present proceedings. I accept the Second Respondent’s submission that the facts in Corowaare clearly distinguishable. At the outset, the decision in Corowa does not involve a consideration of the established principles relevant to an application made under section 57(2)(b) of the Act.

28. [28]
    Further, the attitude of the insurer, the applicant in the proceeding, was a primary factor taken into account by both the trial judge and the Court of Appeal in considering the insurer’s application to strike out the claim on the basis of want of prosecution. Henry J, at [24] notes:

‘In any event, the dilatoriness of the respondent did not fall for consideration in a vacuum, without regard also to the applicant’s historically ambivalent attitude to the pace of the litigation…The applicant’s inaction in not having taken such a course earlier in the intervening year and eight months again suggests it suited the applicant’s purposes to not advance the matter..’^[21]

29. [29]
    Plainly, such a consideration is not apparent in the present proceeding. Here, the Second Respondent has, at all times, acted diligently in seeking to progress the claim expeditiously, making significant concessions in order to allow the Applicant an opportunity to ‘put its own house in order’^[22], to adopt the terminology of Henry J in Corowa.

30. [30]
    Ultimately, I do not accept the Applicant’s submission that the Second Respondent has not and will not suffer prejudice as a result of the delay in commencing proceedings. The Second Respondent has been permanently precluded from obtaining a timely examination of the Applicant’s injuries in circumstances where complete liability for the Accident has already been admitted. The Applicant failed to attend medical appointments or sign the appropriate authorities allowing the Second Respondent to access medical and other records in order to properly assess the extent of the Applicant’s injuries.

31. [31]
    This genus of prejudice is precisely that which the Court of Appeal referred to in Ward v Wiltshire[2008] QCA 93, where Morrison JA explained:

‘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…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.’^[23]

32. [32]
    I accept that the Second Respondent will suffer a significant degree of prejudice should the Applicant be granted leave to commence proceedings at this late stage. Correlatively, were the Applicant to resurface and seek to agitate his claim once again, he would not be precluded from doing so within the provisions of the Act. Accordingly, I do not consider any unreasonable prejudice would be suffered by the Applicant by refusing to exercise the discretion to grant an extension of the limitation period.

Conclusion as to the Exercise of Discretion

33. [33]
    Ultimately, it is for the Applicant to establish that the discretion of the Court should be exercised to allow the Applicant to commence proceedings after the limitation period has expired. I do not consider that the interests of justice warrant the granting of an extension of time with the leave of the Court. For the reasons outlined above, significant prejudice would be visited upon the Second Respondent were the Applicant now granted leave to commence proceedings after the expiration of the limitation period. Such an exercise of discretion would reward an Applicant who, in all the circumstances, has not displayed any conscientious effort to comply with the obligations of the Act.

34. [34]
    Taking this proposition further, I do not consider that justice would be done were the discretion of the Court exercised in favour of the Applicant. The Applicant cannot be found and has failed to make contact with his legal representation for a considerable amount of time. There is no stated intention from the Applicant to progress his claim in a diligent fashion and as previously mentioned, the Application before the Court has been made in the absence of specific instructions.

Orders

I make the following orders:

1. Application dismissed.

2. The Applicant pay the Second Respondent’s costs of and incidental to this proceeding.