Gorringe, Roger Stephen v Webster, Lloyd John

[1998] TASSC 128

128/1998

PARTIES:  GORRINGE, Roger Stephen
  v
  WEBSTER, Lloyd John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  2369/1997
DELIVERED:  15 October 1998
HEARING DATE/S:  14 October 1998
JUDGMENT OF:  Wright J

CATCHWORDS:

Edited version of Reasons for Judgment delivered orally.

REPRESENTATION:

Counsel:
             Plaintiff:  D F M Zeeman
             Defendant:  D R Wallace
Solicitors:
             Plaintiff:  Butler McIntyre & Butler
             Defendant:  Wallace Wilkinson & Webster

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  128/1998
Number of pages:  3

Serial No 128/1998
File No 2369/1997

ROGER STEPHEN GORRINGE v LLOYD JOHN WEBSTER

REASONS FOR JUDGMENT  WRIGHT J

(DELIVERED ORALLY)  15 October 1998

The plaintiff (applicant) claims that in November 1992, he was assaulted by the defendant (respondent) and suffered serious injuries.  Immediately prior to the assault, the defendant had attended the home of the plaintiff's parents at 131 Channel Highway, Kingston for the purpose of serving the plaintiff with court process, either in relation to divorce proceedings in the Family Court, or to recover a debt in the Court of Requests. 

On 18 December 1997, the plaintiff filed an interlocutory application seeking an extension of time for bringing an action against the defendant for damages:

"… for breach of duty by the Defendant in respect of personal injury suffered by the Plaintiff at 131 Channel Highway, Kingston in Tasmania when the Plaintiff suffered a fractured right wrist and injury to the right hip on or about the 11th day of November 1992 …".

Six days later on 24 December 1997, the plaintiff filed a writ claiming damages against the defendant for false imprisonment of the plaintiff by the defendant and for battery upon the plaintiff by the defendant and for breach of duty by the defendant in respect of personal injury suffered by the plaintiff at the aforesaid time and place.  A statement of claim was delivered on 6 March 1998 and the defendant delivered a defence on 16 March 1998.  In that defence, the defendant denies the torts alleged by the plaintiff and raises a plea in bar in reliance upon the Limitation Act 1974, s5. Tacitly accepting the validity of that plea, the plaintiff has apparently decided to proceed with his application for an extension of time. If the order sought is to be made, it must be made before 11 November 1998, otherwise the plaintiff's claim will be absolutely barred by effluxion of the six year time limit provided for in s5(3).

Mr D Zeeman has correctly identified the issues in respect of which his client carries the onus of proof in proceedings of this kind and he has referred to a number of authorities in which the relevant principles have been discussed.  To use the words of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554, the plaintiff has "enlivened" the exercise of the Court's discretion by showing that he has a prima facie case against the defendant.  It would, however, be going too far to say that the plaintiff has demonstrated a strong case, despite the fact that his affidavit of merit, dealing with the circumstances of the alleged tortious conduct by the defendant, has not been directly contradicted on oath by the defendant and the further fact, emphasised by Mr Zeeman, that the plaintiff was not directly challenged as to the facts allegedly constituting the tortious conduct by the defendant, whilst he, the plaintiff, was under cross-examination by defence counsel Mr Wallace.  However tritely, it is appropriate to observe that a proceeding of this kind is not the appropriate vehicle to resolve those issues which lie at the heart of an alleged cause of action.  It is plain enough that the defendant has denied the alleged false imprisonment and battery in his defence and the tenor of Mr Wallace's cross-examination clearly indicated that the defence was in no way retreating from this denial.  Accordingly, it is obvious to me that the lack of sworn evidence by the defendant and the absence of cross-examination of the plaintiff upon these particular matters, has little, if any, relevance to the disposition of the application.  There is, of course, no question of the observance or non-observance of the rule in Browne v Dunn (1893) 6 The Reports (HL) 67 in these circumstances.

Normally, issues of credit do not arise and should not be resolved upon an application to extend time, but sometimes cross-examination of an applicant upon his affidavit in relation to matters directly bearing upon his alleged cause or causes of action, or relevant to the application in some other way, can reveal that he lacks credibility to such an extent that his proposed action enjoys little prospect of success.  Such an assessment can fairly be made of the plaintiff in this case.  The plaintiff says that he and the defendant were the only persons actually present when he sustained injury on 11 November 1992.  Although his parents were present at their residence at the relevant time, he claims they were not present when he injured his wrist and hip.  Obviously, therefore, the success of his case would depend in large measure upon the trial court accepting him as a truthful witness.  That he is not a truthful witness was manifested in the present proceedings when he quite clearly contradicted his own evidence upon quite important matters on at least two occasions whilst under cross-examination.  At first, he emphatically denied having seen statements which his parents had made to the police soon after the alleged altercation between himself and Mr Webster.  He repeated this denial several times.  He said that he was aware that his parents had made statements to the police, but that he had not been "allowed" to see them.  Shortly after saying these things, the plaintiff conceded that he had indeed seen his parents' statements and was fully aware of what they had said in them.  Shortly afterwards, he said that his father, in his statement, had said that he, the plaintiff, had thrown rocks at the defendant's car, then, within one or two questions, he denied having seen this in his father's statement.  In my opinion, the plaintiff emerged as a totally unreliable and unconvincing witness.  Nonetheless, it cannot be said that he has failed to show a prima facie case for the purposes of the present application and, as a result, I proceed on the footing that he has done so.

The central question in any matter of this kind is whether or not it has been established that it would be just as between the parties to allow the case to proceed.  In addition to showing a prima facie case, an applicant must also provide a reasonable explanation for his delay in commencing proceedings and, insofar as he is able, he must dispel any conclusion that his opponent has been significantly prejudiced, or is likely to be significantly prejudiced, if the claim is allowed to proceed.  There has plainly been a considerable delay in the present case, but the plaintiff says that this was caused by solicitors from the Legal Aid Commission whom he first consulted around the end of November 1992.  He says that he was then advised that he had six years from 11 November 1992 within which to institute proceedings against the defendant.  No affidavits by solicitors from the Legal Aid Commission were filed or read.

Police officers attended the plaintiff's parents' home soon after his altercation with the defendant.  According to the plaintiff's evidence, they were brought to the home by the defendant.  Rather than being sympathetic to his plight, the police were abusive and declined to take action or assist him in any other way.  The plaintiff says he was aggrieved by this conduct on the part of the attending officers and spoke to the police Internal Affairs Bureau to complain about their conduct.  Thereafter, he spoke to the police at the Bellerive Police Station to formally complain of the defendant having assaulted him, but by the end of November 1992, he was aware that the police intended to take no action against the defendant as a result of that complaint.  Thereafter, apart from consulting solicitors at the Legal Aid Commission, he apparently lived in hope that the police would change their minds and prosecute the defendant.  He thought that if they did so, his chances of succeeding in a civil claim would be enhanced.  However, he did nothing more to further a claim until he again consulted the Internal Affairs people on 10 April 1997, nearly 4½ years after his last activity in relation to this matter to try and persuade them to advance the matter in some way. 

The plaintiff's cause of action became statute barred on 11 November 1995.  It seems to me that there has been an inordinate delay, both before and after that date.  Furthermore, there has been considerable unexplained delay since the plaintiff consulted his present solicitors in December 1997.  The present application was filed on 18 December 1997.  The plaintiff's confusion as to Mr Binns and Mr Clements, mentioned in pars21 and 22 of his affidavit of 21 August 1998, does little or nothing to explain the delay which has occurred since last December.  A party who applies for the exercise of discretion in his favour must give a satisfactory explanation for delay.  Of course "a satisfactory explanation is not necessarily one which provides justification for the delay which has happened" (see MAIB v Duc Thang Lee 67/1989 (Full Court) per Wright J at 3).  Any delay which may be attributable to dilatoriness or erroneous advice on the part of his solicitors, must be taken into account (see MAIB v Duc Thang Lee (supra), Woolley v Jensen A20/1995 (Full Court) and Marr v Green (1994) Aust Torts Reports 81,277). This, however, does not relieve the plaintiff from making an explanation. In the present case, any belief which the plaintiff may have had that he could sue at any time within six years does not satisfactorily explain why he did so little between December 1992 and December 1997. Nor, in my opinion, does the chronicity of his painful and disabling hip disease during that period of time serve to explain his lack of action. Those matters which I have already discussed relating to the existence of the plaintiff's cause or causes of action and the delay, both militate against granting the application now before me, but there is an even more important consideration to be taken into account.

The evidence clearly establishes that the plaintiff's parents were at their place of residence when the confrontation between the plaintiff and defendant took place.  Although the plaintiff suggests that his parents were not in a position to observe that confrontation, it is plain from his evidence that both of them, when interviewed by the police, claimed that the sequence of events leading up the his injuries was very different from that claimed by the plaintiff.  The plaintiff is obviously aware that his parents' versions of events do not support his case, a conclusion which is further supported by the terms of the letter to the plaintiff from the Deputy Commissioner of Police dated 17 June 1997 which was exhibit B to his affidavit.  Although the terms of the parents' statements have not been fully disclosed to the Court, it is a clear inference from the whole of the plaintiff's evidence that, if called as witnesses, each of them would give evidence favourable to the defendant and unfavourable to the plaintiff. 

The plaintiff says that his father, now aged 81 years, has serious degenerative health problems which would disable him from giving evidence at a trial.  The plaintiff also said that his mother has serious health problems which would prevent her from giving evidence.  He conceded, however, that between 1992 and 1995, both parents would have been available to give evidence if required.  In these circumstances, it is clear to me that if this matter were now allowed to proceed, the defendant would suffer quite serious prejudice.  In such circumstances as these, the words of McHugh J in Brisbane South Regional Health Authority v Taylor (supra) at 555 provide valuable guidance. He said:

"Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action."

An applicant for an extension of time has no presumptive right to an order in his favour.  He bears the legal onus of proof to show that the justice of the case requires that the discretion should be exercised in his favour.  In the present case, the plaintiff has failed to discharge that onus.  His application lacks substantial merit, in my opinion.  Consequently, the application will be dismissed with costs.