Andrew Goodman v Impact Hire Australia

[2007] NSWDC 272

CITATION:	Andrew Goodman v Impact Hire Australia [2007] NSWDC 272
HEARING DATE(S):	12/10/2007
JUDGMENT DATE:	12 October 2007
EX TEMPORE JUDGMENT DATE:	12 October 2007
JURISDICTION:	Civil
JUDGMENT OF:	Phegan DCJ
DECISION:	Extension of time granted ; Leave is granted to commence proceedings against the Nominal Defendant within 28 days; Plaintiff to pay Nominal Defendant's costs of Notice of Motion
CATCHWORDS:	Third party motor vehicle insurance - Nominal Defendant - extension of limitation period
LEGISLATION CITED:	Motor Accidents Compensation Act 1999
CASES CITED:	General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR
PARTIES:	Andrew Goodman v Impact Hire Australia Pty Limited and Nominal Defendant
FILE NUMBER(S):	5350/06
COUNSEL:	Mr A Stone (Applicant/Plaintiff) Mr B Smith (Respondent/Defendant)
SOLICITORS:	White Barnes, Solicitors Sparke Helmore Solicitors

JUDGMENT

1 HIS HONOUR: This is an application by the plaintiff for an extension of time in which to bring proceedings against the Nominal Defendant, the third defendant in the proceedings.

2 The relevant background arises out of an injury which the plaintiff sustained while employed by the first defendant on 29 December 2003. The plaintiff was at the time engaged in setting up a roadside display sign which was attached to a trailer towed by one of the first defendant’s vehicles. The sign was to be set up on the Warringah Freeway, on the northbound side near the Brook Street exit. At the point where the sign was to be set up the vehicle towing the trailer on which the sign was erected had come to a stop and the plaintiff was engaged in detaching the trailer from the rear of the vehicle. This required a number of steps, the last of which was to lift the trailer, with the assistance of a jockey wheel attached to the shaft at the front of the trailer, from the point at which it was attached to the vehicle in front. As he detached it, the plaintiff found that the trailer, which was a slight slope, began to run away from the rear of the vehicle. At this point the plaintiff attempted, ultimately successfully, but only with some considerable difficulty, to control the movement of the trailer by applying the handbrake. The case which is made against the defendants is that the handbrake was dangerously stiff and difficult to apply and, in his efforts to apply the brake, the plaintiff suffered a back injury which is the basis of his claim for damages.

3 The application before me is an application for extension of time under s 109 of the Motor Accidents Compensation Act 1999 under which these proceedings were commenced. The background, insofar as it bears directly on the involvement of the Nominal Defendant as a prospective defendant in these proceedings, arose from withdrawal of the third party insurer towards the end of the three year limitation period, that is, towards the end of 1996. At that point the proceedings against the first and second defendant were underway and the third party insurer had, up until that point, accepted responsibility under the legislation and was conducting the litigation on behalf of the first defendant. It then withdrew its indemnity on the basis that it was not liable as the third party insurer under the relevant provisions of the legislation and in particular under the definition of use and operation of a motor vehicle under s 3, which I will return to in a moment. The problem which the late withdrawal of the third party insurer posed for the plaintiff was that the plaintiff was then faced with the need to consider an action against the Nominal Defendant on the basis that the trailer was an uninsured vehicle for the purpose of the Act. This was a prospect which it had not been necessary to consider until the decision was made by the third party insurer to withdraw its indemnity. At that point the plaintiff had not obtained the relevant exemption certificate under s 108 of the Act in order to enable proceedings against the Nominal Defendant to proceed. However, as a precaution, the Statement of Claim was amended to include the Nominal Defendant. However, in subsequent proceedings the Nominal Defendant was successful in having the claim against it dismissed by virtue of non-compliance with s 108 of the Act. The exemption certificate which the plaintiff had been unable to obtain at the time was subsequently obtained, so that particular obstacle to proceeding against the Nominal Defendant no longer exists. It was therefore on that basis that the plaintiff now has made an application to proceed out of time.

4 In order to succeed in this application the plaintiff must meet the requirements of s 109(3) of the Act, which require that the plaintiff provide a full and satisfactory explanation, that is under (a), and prove that the damages exceed the threshold which is imposed under s 109(3)(b). The Nominal Defendant concedes that both of those requirements are met in the circumstances and those matters therefore do not have to be determined for the purpose of the application.

5 A successful application depends however not only on the explicit requirements of s 109(3) but also on the general discretion which is vested in the Court by implication in the words of s 109(1) which allow proceedings to be commenced out of time only with the leave of the Court. It is the general discretion which is implicit in the granting of leave which is now in dispute. However, even that aspect of the matter has been narrowed down. The general discretion requires the Court to consider, under principles which have been enunciated in a long line of cases in both the High Court and the Court of Appeal, which I do not need to cite on this occasion, which require the Court to consider the prejudice to the defendant which might be caused by the extension of time and to consider in general terms whether the defendant will receive a fair trial if the extension of time is granted. It has been conceded, for the purpose of this application, that there is no risk of prejudice to the defendant in this case as long as the trailer which was the subject of the incident in which the plaintiff was injured is available for inspection by the defendant, and is assumed, any expert which the defendant requires to examine the condition of the trailer insofar as it is relevant to the question of liability. Were there no other matter to be resolved for the purpose of the application it would succeed by consent subject to that condition.

6 The matter on which the defendant has not made any concession and which it remains for the Court to resolve is whether on the principles enunciated by the Chief Justice of the High Court, Sir Garfield Barwick, in the case of General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR at 125 apply. They go to the appropriate criteria which should be applied in a case where it is argued that the plaintiff has no case against the respective defendant. General Steel was not a case involving an application for an extension of a limitation period, but it nonetheless enunciates principles, which it is conceded by counsel on both sides, apply to the exercise of a discretion of the kind which must be exercised in this case. The facts of General Steel offer no particular assistance in this case and it is only the expression of general principle in the Chief Justice’s judgment which are relevant.

7 Beginning in a passage which starts on the bottom of p 128 of the judgment, where the Chief Justice is referring to the basis on which the issue arose in that case, he says:

The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.”

In the same paragraph, but on p 129, his Honour went on to say:

“It is sufficient for me to say that these cases” [referring there to a number of earlier decisions to which his Honour had been referred] “uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; ‘So obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the court is satisfied cannot succeed’; ‘under no possibility can there be a cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.”

8 At the conclusion of a further discussion on p 130, his Honour encapsulates those various formulae, which he had quoted from earlier decisions, in the following words. He refers to the need for a case to be made to demonstrate:

“...that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”

9 The case made by the Nominal Defendant in submitting that the Court should not exercise its discretion in the plaintiff's favour is that a case against the Nominal Defendant would be, in the words of the Chief Justice in General Steel, “so clearly untenable that it could not possibly succeed”. The reason for that argument lies in the definition of use or operation of a motor vehicle which I understand was the catalyst for the earlier withdrawal of the third party insurer. “Use or operation of a motor vehicle” which is the basis on which the third party insurance provisions of the Act are applied to a particular motor vehicle, includes in ss (b):

“In the case of a motor vehicle that is not a trailer - the use or operation of a trailer attached to the motor vehicle and a trailer running out of control having become detached from the motor vehicle towing it.”

10 In other words the trailer in this case would be caught by the third party insurance provisions of the Act if it fell within the words of that definition. It is the submission of the Nominal Defendant that this was a case where, to take the latter part of that definition, the trailer had run out of control having become detached from the motor vehicle towing it and that any contrary argument is, in the words of General Steel “untenable”.

11 I have already indicated to counsel in the course of argument that I find this a very difficult case to resolve because it is the not unfamiliar situation of two parties before me, both of whom for the record, have conducted themselves in an entirely appropriate way throughout this litigation but who are here largely because of a decision made by a third party insurer at an earlier stage in the proceedings when they were, properly on foot and did not involve the Nominal Defendant. That decision, in my view, was not based on what I would regard as the proper interpretation of the legislation.

12 The argument mounted by the Nominal Defendant adopts what can only be described as an interpretation of the words of the definition of use or operation which is entirely consistent with their ordinary meaning. Because on the facts as stated for the purpose of this application the trailer was running out of control, having become detached from the motor vehicle towing it. A literal application of those words would fit squarely with the facts. As I indicated at the outset the plaintiff’s evidence was that it was after he had detached the shaft of the trailer from the rear of the motor vehicle that it then began to commence to run down the slope on the side of the road and it was at this point that his injury was suffered.

13 The submission made by counsel for the plaintiff is that the plaintiff is nonetheless entitled to the benefit of the language used in the General Steel case and that there is a tenable argument, available to support the position taken by the third party insurer and, indirectly, the position that the plaintiff now finds it necessary to take. I should add again that one of the difficulties which faces the Court is that this is a case where, in order to make a case for an extension of time, the plaintiff is faced with the task of running an argument which is really the third party insurer’s argument, not the plaintiff’s. But that is the only basis on which the plaintiff can succeed in this application.

14 The gist of the argument put in support of the plaintiff's case was essentially this. An interpretation, however far fetched it might be seen to be, that could be read into the language of the definition of “use and operation” in s 3 of the Act is that it should be restricted to a trailer which has become inadvertently detached from a moving vehicle. No doubt this may have been one scenario which the legislature had in mind, but the difficulty is whether it was necessarily the only scenario which the legislature had in mind. The plaintiff’s argument is that, if the words were restricted to a trailer running out of control having been in some way inadvertently detached while the vehicle was in motion, that is, the vehicle towing it was in motion, then what happened in this case would fall outside that interpretation and a deliberate detachment of the trailer in the way that occurred in this case, would not be what the legislation was directed at. That interpretation defies the clear and unambiguous language of the section. There is nothing in the section that in any way indicates an intention to distinguish between intentional and unintentional detachment. Having given the matter some very careful consideration and having the benefit of submissions by both counsel, I have decided that I could not adopt the view that that interpretation sought by the plaintiff is “clearly untenable”. While it is an interpretation which I would not adopt, I cannot exclude the possibility that some other tribunal may take a different view. If that is the case, then the proceedings which the plaintiff seeks to take against the Nominal Defendant are not futile in the necessary sense and the plaintiff is, in those circumstances, entitled to the extension of time given the other concessions which have been very reasonably made on behalf of the Nominal Defendant.

15 In those circumstances therefore the extension of time is granted. The order sought is in terms that leave be granted to commence proceedings. Leave is granted to commence proceedings against the Nominal Defendant within 28 days.

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