COUNSEL: A: R R Bartlett SC / A Capelin R: J Glissan QC / A R Reoch
SOLICITORS: A: T L Lawyers, Newcastle R: Ron Kramer & Associates, Fairfield
CATCHWORDS: LIMITATION OF ACTIONS – Extension of limitation period – Motor accident claim – Leave sought to commence out of time – Delay as a result of failure to obtain legal advice – Where plaintiff brought workers compensation claim in relation to accident – Where plaintiff unaware of entitlement to bring separate claim for damages – Where plaintiff worked in legal environment – Whether “full and satisfactory explanation” for delay provided – Whether reasonable person in plaintiff’s position would have been justified in experiencing same delay – Prejudice to defendant by reason of delay – Motor Accidents Act 1988 ss 40(2), 52(4) APPEALS – Appealable error – Judge’s duty to provide reasons – Appeal from discretionary decision
DECISION: (1) Appeal allowed (2) Set aside the orders made by Judge O'Toole on 6 August 2004 and in lieu thereof order that the Amended Notice of Application for Leave to Commence Proceedings filed in the District Court on 26 March 2004 be dismissed (3) The respondent to pay the appellant's costs of the proceedings in the District Court and the costs of the Summons for Leave to Appeal and of the appeal but to have with respect to the latter a certificate under the Suitors’ Fund Act 1951, if otherwise qualified
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40737/04 DC 4416/03
SANTOW JA TOBIAS JA McCOLL JA
Monday 12 December 2005
GUISEPPE FIGLIUZZI v LANA YONAN
Judgment
SANTOW JA:
INTRODUCTION
Leave having been granted to this appeal, its central issue can be shortly stated. Was it open to the primary judge, O’Toole DCJ to conclude that the respondent, Ms Yonan, in seeking leave to bring a claim out of time under the Motor Accidents Act 1988 (NSW) (“the MA Act”) had as thereby required provided a “full and satisfactory explanation” for her delay? (The MA Act describes a person seeking such leave as “the claimant” so I shall refer to Ms Yonan as either the claimant or respondent accordingly.) The appellant contends that it was not open to the primary judge to conclude, as required by the statutory definition, that “a reasonable person in the position of the claimant would have failed to comply with the duty [to bring her claim in time] or…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Figliuzzi v Yonan [2005] NSWCA 290
Case
[2005] NSWCA 290
Decision Date
CaseChat Overview and Summary
The appeal concerned a decision of Judge O'Toole in the District Court of New South Wales, which granted the respondent leave to commence proceedings out of time under the *Motor Accidents Act 1988* (NSW). The appellant sought leave to appeal this decision, arguing that the primary judge erred in granting leave. The respondent had suffered injuries in a motor vehicle accident while travelling to work and had subsequently lodged a workers' compensation claim. She was employed by the Legal Aid Commission of New South Wales and had some familiarity with the legal profession through her work.
The central legal issue before the Court of Appeal was whether the respondent had provided a "full and satisfactory explanation" for her delay in commencing proceedings under the *Motor Accidents Act 1988*, as required by section 40(2) of the Act. This involved determining whether a reasonable person in the respondent's position would have experienced a similar delay, and whether the appellant would suffer prejudice as a result of the delay. The Court also considered whether the primary judge's decision involved an appealable error, particularly in relation to the duty to provide reasons for a discretionary decision.
The Court of Appeal allowed the appeal, setting aside the primary judge's order. The majority found that while the respondent's ignorance of the law did not automatically excuse her delay, her circumstances, including her belief that her workers' compensation claim was her sole avenue for redress and the lack of information from her employer to the contrary, could constitute a full and satisfactory explanation. The Court applied the "reasonable person" test, considering whether such a person, in the respondent's position and with her background, would have been justified in experiencing the same delay. The Court concluded that the primary judge's decision was not demonstrably wrong, and therefore, the appeal was allowed.
The orders made were that the appeal be allowed, the orders of Judge O'Toole be set aside, and the respondent's application for leave to commence proceedings be dismissed. The respondent was ordered to pay the appellant's costs in the District Court and on appeal, with a certificate under the *Suitors’ Fund Act 1951* available if otherwise qualified.
Orders
Orders of the court
(1) Appeal allowed
(2) Set aside the orders made by Judge O'Toole on 6 August 2004 and in lieu thereof order that the Amended Notice of Application for Leave to Commence Proceedings filed in the District Court on 26 March 2004 be dismissed
(3) The respondent to pay the appellant's costs of the proceedings in the District Court and the costs of the Summons for Leave to Appeal and of the appeal but to have with respect to the latter a certificate under the Suitors’ Fund Act 1951, if otherwise qualified
Background
Background to the litigation
On 18 September 2003 the opponent filed a Notice of Motion in the District Court of New South Wales seeking that Court's leave to commence proceedings in respect of her claim under the MA Act. That application was heard by her Honour Judge O'Toole who, in an ex tempore judgment delivered on 6 August 2004, granted the opponent the leave she sought. By Summons filed on 28 January 2005, the claimant sought this Court's leave to appeal from the primary judge's decision to grant that leave. The substantive appeal was heard concurrently with the claimant's application for leave. At the conclusion of the oral argument, the Court granted the claimant leave to appeal and reserved its decision on the merits of the appeal. I will therefore refer hereafter to the claimant and the opponent as the appellant and the respondent respectively.The relevant facts The respondent was born on 12 March 1968. On 21 July 1986 she commenced employment as a clerk with the Legal Aid Commission of New South Wales (the Commission) in its Sydney office. The Commission entertained requests for legal assistance from members of the public involved in court proceedings. It employed a number of solicitors and its Sydney office's duties included appearing for its clients in court. It dealt with criminal, civil and family law matters. Each of those areas of practice was administered from a different floor of the building which the Commission occupied near Central Railway Station. The Commission instructed solicitors and barristers in private practice to appear for its clients in court proceedings. The Commission also had a Fairfield office which comprised a single floor. Its Fairfield clients were generally involved in local court proceedings. It employed eight solicitors in that office, two of whom handled criminal proceedings, two of whom handled civil litigation and three of whom handled family law proceedings. Prior to the accident, the respondent worked mainly in the Commission’s criminal section of its Sydney office. Her duties were generally confined to local and district court proceedings. She performed clerical tasks, retrieved electronic data and processed requests by clients for legal aid. She also ascertained clients' preferences for solicitors and/or counsel in private practice and telephoned members of the private legal profession for the purpose of ascertaining their availability to appear for the client and then retaining them for that purpose. As such she became familiar with the names and professional roles of both solicitors and barristers in private practice who were disposed to accept instructions from the Commission's own solicitors. The respondent had been injured in a previous motor vehicle accident on 24 October 1989 when she was a passenger in a vehicle which collided with another vehicle. This accident incapacitated the respondent for several weeks but thereafter she resumed her normal full-time duties. She maintained that she had fully recovered from these injuries well prior to the accident in September 1997.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
For a person to have a civil claim under two regimes, namely workers’ compensation and under the Motor Accidents Act is far from self-evident in such circumstances; indeed it comes close to being counter-intuitive. That therefore she did not feel the need to verify her belief when that belief was ex facie reasonable does not to my mind render that belief unreasonable. A reasonable person in Ms Yonan’s circumstances might well consider that she did not want to expend money or time in legal costs in verifying a belief, intrinsically rational, that her own employer by its actions had implicitly confirmed. Her employer did so by requiring her to complete a workers’ compensation claim form. The Commission neither then nor subsequently informed her that she could or should bring a claim for damages under the Motor Accidents Act in circumstances where she was injured on the way to work. While Ms Yonan’s ignorance of the law did not of itself excuse her from complying with the statutory time period (cf Ostrowski v Palmer (2004) 78 ALJR 957 per Gleeson CJ and Kirby J at [1]), nonetheless, taking her circumstances properly into account, her account was capable of satisfying the statutory requirements for “a full and satisfactory explanation”. I would therefore have reached the same conclusion as the primary judge on this matter, applying the reasonable person test. Conclusion I agree with the primary judge’s conclusion that the respondent gave a full and satisfactory explanation. I consider that the reasonable person test was satisfied for the reasons I have set out above. Postscript Since dictating the foregoing, I have had the advantage of reading the judgment of McColl JA in draft. It, and the reasons of Tobias JA, prompts me to elaborate on one aspect only. The statutory test of a “full and satisfactory explanation” in s40(2) of the MA Act is predicated upon a hypothetical “reasonable person” in the position of the claimant. It asks whether such a “reasonable person” would have “failed to comply with the duty [to bring her claim in time] or would have been justified in experiencing the same delay”. In so applying that test, the legislature employs what the late Julius Stone called a legal category of indeterminate reference. The defining characteristic of such a category is that “it does not usually lead compellingly to any one decision in a concrete case, but rather allows a wide range for variable judgment in interpretation and application, approaching compulsion only at the limits of the range”: Julius Stone, “Legal System and Lawyers’ Reasonings” (Sydney, Maitland Publications Pty Limited, 1964) at 264. As McHugh J put it in Russo v Aiello (2003) 215 CLR 643 at [27]: “A “full and satisfactory explanation” for delay is an intellectual construct involving a value judgment, a judgment on which reasonable persons may have widely differing views. It is therefore properly described as a discretionary judgment”.