Hall v Nominal Defendant

[1966] HCA 36

HIGH COURT OF AUSTRALIA

Barwick C.J., Taylor, Windeyer and Owen JJ.

HALL v. NOMINAL DEFENDANT

(1966) 117 CLR 423

23 May 1966

High Court—Insurance—Legal Practitioners

High Court—Appellate jurisdiction—Appeal from Supreme Court of State—Final or interlocutory judgment—Refusal of extension of time to proceed against nominal defendant—Whether civil right amounting to $3,000 involved—Special leave to appeal—Grounds for grant—Judiciary Act 1903-1960 (Cth), s. 35 (1) (a). Insurance—Third Party Insurance—Unidentified vehicle—Action against nominal defendant—Extension of time to institute proceedings—Considerations applicable—Exercise of discretion—Review of exercise of discretion on appeal—Right of further appeal to High Court—Refusal of application—Whether second application lies—Traffic Act 1925 (Tas.), s. 65A*—Supreme Court Civil Procedure Act 1932 (Tas.), s. 45 (b). Legal Practitioners—Solicitor and client—Reliance by client on advice of solicitor—Whether client may subsequently resile from decision—Action not brought within prescribed time—Application to extend time.

Decisions

May 23.
The following written judgments were delivered : -
BARWICK C.J. The appellant, whilst a passenger in a car driven by Mr. Warren in New Town, Hobart, on 2nd August 1962 was severely injured when the car ran into a pole carrying electric power lines. As a result he was confined to hospital until May 1963. Apparently his wife conveyed his instructions to a solicitor to take action to recover damages for his injuries. The appellant in those instructions claimed to have seen a light of an oncoming but unidentified vehicle which had forced Mr. Warren's vehicle off the road. Consequently, the solicitor on 23rd August 1962 sent a notice to the Attorney-General of Tasmania complying with the provisions of s. 65A (2) of the Traffic Act 1925 (the Act) and advising that the appellant intended to make a claim against the nominal defendant. (at p426)

2. Thereafter the solicitor saw the statements made to the police by witnesses to the occurrence, including a statement by Mr. Warren which suggested the presence of another vehicle. The others of those witnesses did not see any other vehicle. He also conversed with some of these witnesses and with other people, none of whom saw any second vehicle at the time of the impact. The solicitor then decided that upon all this information it was too risky for his client to sue the nominal defendant and that he should not do so. He issued a writ on 23rd January 1963 against Mr. Warren alone, though at that time the period limited for the commencement of an action against the nominal defendant had not expired. It did expire on 2nd February 1963. (at p426)

3. However, in August 1963, Mr. Warren caused a third party notice to be served on the nominal defendant. The plaintiff's action and the third party claim were heard together between the twelfth and twentieth days of May 1964. The nominal defendant, who had knowledge of all available witnesses, called some of them to dispute the presence of any second vehicle. (at p426)

4. On 6th August 1964 judgment was delivered in which the learned trial judge found:

1. That there had been a second vehicle at the scene of the occurrence.

2. That negligence in the driving of that vehicle contributed to the impact from which the appellant's injuries stemmed.

3. That Mr. Warren was negligent in the management of the car then being driven by him.

4. That the appellant's damages in his action against Mr. Warren should be assessed at 8,153 Pounds 13s. 0d.

5. That the responsibility for that damage should be apportioned as to forty per cent to the driver of the unidentified vehicle and as to sixty per cent to Mr. Warren.

6. That the third party claim against the nominal defendant failed because it did not fall within s. 3 of the Tortfeasors and Contributory Negligence Act 1954 of the State of Tasmania. (at p427)

5. Accordingly, judgment was entered in the appellant's action against Mr. Warren for the sum of 8,153 Pounds 13s. 0d. and for the nominal defendant in the third party claim. (at p427)

6. It had been known by the appellant's then solicitor early in the course of his activities on behalf of the appellant, though precisely when he knew it is a matter of some doubt, that Mr. Warren had a third party indemnity policy limited to 2,000 Pounds in any one claim. Further, as must also have been known at an early stage to that solicitor, Mr. Warren was unlikely to be able to contribute anything to the payment of a verdict. The plaintiff was thus left at the conclusion of the case with the prospect of recovering no more than a sum less than one quarter of his verdict. (at p427)

7. By summons returnable for Monday, 21st September 1964, the appellant sought of the Supreme Court an order pursuant to s. 65A (3) of the Act extending the time within which he might institute proceedings against the nominal defendant. Upon the hearing of the summons the primary judge made an order extending the time for one month from 24th December 1964, that being the date of the delivery of his judgment. (at p427)

8. Against this order, the respondent appealed to the Full Court of the Supreme Court which by majority set it aside and dismissed the appellant's application for an extension of time. The appellant now appeals to this Court against the decision of the Full Court. (at p427)

9. The jurisdiction of this Court to hear the appeal, brought as of right, must first be resolved. If there is such an appeal it must be by reason of the provisions of s. 35 (1) (a) (2) of the Judiciary Act 1903-1959 (Cth). Having regard to the language of that subparagraph, as applied to the circumstances of the case, three points arise. (at p427)

10. First, was the order of the Full Court a final order within the meaning of the Judiciary Act? (at p427)

11. Section 65A of the Act is in the following terms:

"65A (1) Subject to this section, where the death of, or bodily injury to, a person is caused by or arises out of the use of a motor vehicle but the identity of the motor vehicle cannot be established, any person who could have obtained a judgment against the driver of the motor vehicle in respect of that death or bodily injury may obtain against the nominal defendant the judgment that, in the circumstances, he could have obtained against the driver of the motor vehicle, but the amount for which judgment may be entered against the nominal defendant pursuant to this subsection shall not, in any case, exceed the amount to which the liability of an insurer might be limited by the terms of a policy of insurance that complies with the requirements of this Part. (2) A person is not entitled to obtain a judgment under this section unless - (a) within one month after the occurrence of the accident he gives to the Attorney-General notice of intention to make a claim under this section, together with a short statement of the grounds thereof; and

(b) he institutes proceedings against the nominal defendant within six months after the occurrence of the accident.

(3) Notwithstanding anything in subsection (2) of this section, the court, upon application being made in that behalf, may, after hearing such of the persons affected or likely to be affected by the application as it thinks fit, extend the time limited by that subsection for giving notice of intention to make a claim or for instituting proceedings, or both, for such further period as the court thinks fit. (4) The powers conferred on a court by subsection (3) of this section may be exercised notwithstanding that the times limited by subsection (2) of this section have, or either of those times has, expired." (at p428)

12. It is clear that the statute gives a right of action to a person of the described class in the stated circumstances if the right is exercised by the commencement of an action within the stated time after due notice to the nominal defendant. There is otherwise no right in that person because of those circumstances to sue the nominal defendant. Once the times set out in sub-s. (2) have elapsed, the person, though of the described class, cannot bring an action against the nominal defendant. The cause of action which the statute gave him has ceased to be available to him. But sub-ss. (3) and (4) by authorizing the court to extend those times, after they have passed, empowers the court to restore the cause of action conditionally upon compliance with the times it fixes. An order extending the time operating under the Act thus restores the right of the applicant to sue and exposes the nominal defendant to liability to suffer judgment. These are respectively the right and the liability which result from the grant of the application. Subject to appeal the order granting time determines them finally. I am of opinion that an order granting an extension of time within which to commence an action against the nominal defendant is a final order within the meaning of the Judiciary Act. But is an order refusing an extension of that time, whether in the first instance or on appeal, of the same kind ? Upon the making of such an order, the applicant remains without a cause of action and the nominal defendant is under no liability to suffer judgment at the suit of the applicant. (at p429)

13. Yet the question remains whether after such refusal to grant an extension of time a judge or a court may grant the same upon a fresh application, that is, in a subsequent independent proceeding. If this question be answered in the negative, the dismissal of the application for an extension of time within which to sue the nominal defendant would, in my opinion, clearly be a final order. (at p429)

14. There is no precise authority bearing upon this point. The matter, it seems to me, is quite different from the case of successive applications for extensions of time for the taking of a step in an action or for setting aside a default judgment in an action. In these cases, the matter is under the control of and generally within the discretion of the court in which the action is brought. Also, the action is brought to enforce rights which, if they exist, derive from facts or circumstances apart from the statute or jurisdiction which gives the court control of the proceedings. The dismissal of an action for insufficiency in a statement of claim, or the entry of a non-suit is also quite different. In such cases the right, if any exists, is not determined by the order. But in the case of an application for extension of time under the Act, the only power given to the court is a power given in relation to an application to extend time. The questions for the court upon such an application are whether a sufficient reason has been given for the failure to sue in time, and, if so, whether it is just in all the circumstances to grant or refuse the application. All the facts relating to each of these questions must actually exist at the time of the application whether or not the applicant has assembled all the evidence he might have obtained as to them. This must be so, even if the nature of the applicant's injuries is a material fact in determining whether or not it is just to make the order extending time. If the injuries are not fully manifest, they are in posse and the probabilities are quite capable of estimation. There is therefore no reason in justice why an unsuccessful applicant for an extension of time should have further opportunities. On the other hand, there is reason why the situation of the nominal defendant should be rendered certain, a circumstance which the statute emphasizes in fixing a short period within which the action against him must be commenced. There is thus reason to construe s. 65A as not giving the court or a judge power to re-open upon a subsequent application the matters determined upon an application to extend the time. On this view, s. 20 (a) of the Acts Interpretation Act 1931 (Tas.) would not have any relevant operation: but in any case, in my opinion, it would not be apt of itself to empower a judge or a court to extend the time in a subsequent independent proceeding after an application for such an extension had been refused: cf. Day v. Hunkin (1938) 61 CLR 65, per Latham CJ (1938) 61 CLR, at p 74 (at p430)

15. Further, it seems to me that upon an application to extend time distinct issues arise between the applicant and the nominal defendant, following the line of the two questions to which I have already referred. The dismissal of the application involves a finding that the applicant has no sufficient explanation of his failure to sue in time or, having such an explanation, that it would not be just to extend the time. The applicant could not, in my opinion, be allowed to relitigate these questions which had been determined upon the merits in the contested application for an extension of time: cf. In re May(1885) 28 Ch D 516 (at p430)

16. Therefore, whether by reason of the construction of s. 65A based upon its obvious purpose or by reason of the estoppels arising from a refusal of an application to extend the time for commencement of an action, in my opinion, no right exists in the applicant to make a second application to extend the time or any power in the court or a judge to grant it. In my opinion, the order dismissing the application is a final order. It finally determines the matter in dispute between the applicant and the nominal defendant, namely, whether the applicant should, by the operation under the Act and an order extending the time for commencement of the action, have a right of action against the nominal defendant. (at p430)

17. The next questions are whether the judgment of the Full Court reviewing the order of the primary judge involves directly or indirectly any civil right, and, if it does, whether that civil right is of the value of one thousand five hundred pounds, or more. (at p430)

18. As to the first, as I have indicated, the order of the primary judge restored the lapsed right of action to the appellant given by s. 65A (1) of the Act. Undoubtedly, that right of action is a civil right within s. 35 of the Judiciary Act 1903-1959. The order of the Full Court withdrew its restoration. To my mind, that order directly involved the civil right with which it thus dealt. (at p431)

19. As to the second, the language of par. (2) of s. 35 (1) (a) of the Judiciary Act, dictated no doubt by the association in the paragraph of rights of property with other civil rights, is somewhat inappropriate when it speaks of "value" in the case of a civil right which is not a right of property. No doubt to make out a right of appeal, an appellant must establish to the satisfaction of the court that the civil right which is involved in the judgment from which he seeks to appeal is of the necessary "value". In the case of a right of action for damages, this cannot, in my opinion, be limited to its "market", or presently realizable, value. (at p431)

20. It seems to me that, whilst this Court cannot be placed in the position of a valuer in cases where the civil right is susceptible of expert evidence as to its value, in the case where a right of action for damages has to be assigned a value the Court has to make the best estimate it can on the materials placed before it as to the probabilities of success in the action and as to the probabilities of the amount to be recovered. Of course, the Court must have proper evidence upon which it can securely make these estimates. If the materials are insufficient to produce a positive conclusion that it is probable that the cause of action will in its success produce for the party-appellant at least one thousand five hundred pounds more than he would otherwise have, the right of appeal will not be made out. (at p431)

21. In this case, the right of action is against the nominal defendant for damage caused by the negligence of the driver of an unidentified vehicle. The Court has evidence that in a contest in which the nominal defendant had his part, it has been found that the appellant did suffer personal injuries by the negligence of the driver of an unidentified vehicle. The damages for that personal injury have been assessed at 8,153 Pounds 13s. 0d., and there is evidence of the nature of those injuries. In my opinion, these facts strongly suggest the probability that the appellant would succeed in his cause of action against the nominal defendant and that he would recover more than 1,500 Pounds. I would conclude on this material that the civil right which is that cause of action is of the "value" of at least one thousand five hundred pounds for the purposes of s. 35 of the Judiciary Act. Consequently, in my opinion, the appellant has an appeal to this Court in this case as of right. (at p431)

22. If contrary to my own opinion the order of the Full Court is not a final order, or, being a final order, does not involve a right of the requisite value, I would give leave or special leave as the case may be because of the matter of general principle involved. (at p432)

23. I turn now to the substance of the appeal: first, was the Full Court warranted in setting aside the exercise by the primary judge of his discretion to extend the time for suing the nominal defendant; and, second, if their Honours were so entitled, were they in error in exercising their discretion by dismissing the appellant's application for an extension of time. (at p432)

24. The primary judge decided in substance that the appellant had lost his chance of suing the nominal defendant through no fault of his own, meaning, it seems to me, that he had placed before his then solicitor all the facts within his knowledge as to the occurrence out of which his injuries sprang; that he had not made a judgment of his own with a full knowledge of the facts and material considerations; and that he had not contributed in any wise to the decision which his solicitor had made on the basis of which the solicitor had advised him not to sue the nominal defendant. (at p432)

25. It cannot be held, in my opinion, that his Honour was in error in this conclusion. Indeed, I do not read the judgment of any of their Honours of the Full Court as so suggesting. (at p432)

26. There was before the primary judge, conflicting evidence as to what and when the solicitor told the appellant about his reasons for deciding that the nominal defendant should not be sued. The primary judge found, as I read his reasons for judgment, that the decision not to sue was taken by the solicitor himself, and that the failure to join the nominal defendant occurred not as the result of any specific antecedent instructions given by or on behalf of the appellant in that connexion but by the solicitor himself, as a matter falling within his general instructions from the appellant to commence proceedings in respect of the facts of the occurrence communicated by and on behalf of the appellant to the solicitor. His Honour held that this decision was made and acted upon by the issue of a writ against Mr. Warren alone before the appellant was apprised of the solicitor's reasons for that course. These findings are not, in my opinion, shown to be erroneous. Again, I do not read any of the members of the Full Court as suggesting that they were. (at p432)

27. His Honour also held that the appellant when told of the action taken by the solicitor and the reasons therefor, acquiesced in them. He also thought that had the matter come before the appellant before the writ had been issued, the appellant would have accepted the solicitor's advice on the footing that he would have left the decision of the question to the solicitor in any case. (at p432)

28. The primary judge concluded that the failure to sue the nominal defendant was due to the solicitor's view of the facts and of the law. He thought, as I read his judgment, that, in substance, the blamelessness of the appellant in connexion with the failure to join the nominal defendant and the solicitor's responsibility in that connexion were material considerations which he was entitled to take into account presumably both in deciding to examine the question whether the time for suing should be extended and also in deciding whether it would be just in all the circumstances to do so. For that course, he had, in my opinion, the clear authority of a judgment of this Court in Sophron v. The Nominal Defendant (1957) 96 CLR 469, at pp 474, 475, expressions with which I fully and respectfully agree. (at p433)

29. The primary judge sought some explanation of the solicitor's decision not to join the nominal defendant. Accordingly he examined the facts, not placed before him in any consistent fashion, surrounding the making of that decision. He concluded that there were probably three reasons which operated on the solicitor's mind in this respect. (1) He thought the evidence was strongly against the presence of the alleged unknown vehicle (which on the evidence in his possession was a not unreasonable view); (2) He foresaw that an unsuccessful action against the nominal defendant would mean that his client would lose a substantial amount by way of costs out of any judgment he might collect from Warren (the defendant) or his insurers; and (3) He thought that if Warren believed that there had been an unknown vehicle, it was most likely he would join the nominal defendant in which case the issues concerning the alleged unknown vehicle would be resolved without his client running the risk of paying for the cost of having them resolved. His Honour then expressed the view that had the solicitor known that in point of law the nominal defendant could not be made a third party, he would have been unlikely to have taken the risk of not suing the nominal defendant in time. Being of that mind, his Honour thought that this mistake of law on the solicitor's part, implicit in the third of the reasons which his Honour inferred as probably accounting for the solicitor's decision not to join the nominal defendant, significantly influenced that decision. (at p433)

30. His Honour thought that an appropriate order for costs would remove any prejudice the nominal defendant might otherwise experience by being required to relitigate the issue of liability and that any prejudice he might suffer by the delay in being sued by the appellant was very slight. Taking all the circumstances into account, his Honour thought that it would be just to extend the time for commencing proceedings, and by his order, did so. (at p434)

31. Section 45 (1) of the Supreme Court Civil Procedure Act 1932 of Tasmania provides that a discretionary judgment should not be set aside unless (inter alia) ". . . (b) the judge has proceeded on a wrong principle or otherwise contrary to law, or on irrelevant or insufficient materials, or has misapprehended the facts or has failed to consider any material fact; (c) the adjudication is founded wholly or in part on an erroneous finding of fact or an erroneous determination in point of law: . . .". (at p434)

32. The members of the Full Court held that the trial judge was in error in concluding that the ability of the defendant to join the nominal defendant as a third party weighed with the appellant's solicitor. A majority of the Court held that this conclusion amounted to an error of fact upon which his Honour's exercise of discretion was to a significant extent founded. The majority therefore felt itself at liberty consistently with s. 45 of the Supreme Court Civil Procedure Act to set aside the order of the primary judge. (at p434)

33. In exercising their own discretion the majority of the Court were not convinced that it would be just to extend the time to sue. The basis of this decision seems to have been that the operative reason for which the solicitor had decided not to sue the nominal defendant was that in assessing the value of their statements he failed to take into account the opportunities for observation of the witnesses who said they had not seen another vehicle, and therefore concluded that his client's chances of success against the nominal defendant were slim. Their Honours did not think the solicitor had made any excusable mistake as to a specific fact, or that he had been influenced in his decision by any mistake of law. They held that the nominal defendant would suffer such prejudice by the extension of time that weighing all the circumstances they were not convinced that it would be just to grant the application for that extension. Accordingly, the Full Court set aside his Honour's order and dismissed the appellant's application. (at p434)

34. It is important, when considering the propriety of an exercise of the discretion given by s. 65A of the Act, to have regard to the general purpose of the section. It is designed to provide a remedy for persons suffering personal injury by the negligent driving or management of an unidentified motor vehicle. Its emphasis and policy is that personal injuries in such circumstances should not go without compensation. By its very nature, however, the action against a nominal defendant given by the Act in such circumstances requires that there be prompt notification of the occurrence out of which the action is to arise and the commencement of proceedings within a stated time. The first provision will enable the nominal defendant to follow up any scent there may be whilst it is warm and the second will assist to prevent the nominal defendant being embarrassed by long outstanding claims. But the ends which the section seeks to serve require that the time limitation shall not stand in the path of justice. A very short time is set by the statute within which an action against the nominal defendant may be brought, and therefore a power to extend that time is given to a court of law so that justice may be done according to the circumstances. No doubt this extension of time is not as of course. Some acceptable explanation for the failure of the appellant to sue in time must be given before the court is required to consider the substantial question whether it would be just to grant the extension. The door, as it were, must first be opened. No hard and fast rule can be stated defining what may be an acceptable explanation. But at least, in my opinion, it should be held that it is the litigant's failure to sue in time which must be satisfactorily explained. However much in some fields the client must suffer for his solicitor's acts done on his behalf, in this field the litigant is not necessarily, in my opinion, to be saddled with responsibility for all that his solicitor does or does not do. It seems to me to be implicit in the views of the Court in Sophron's Case (1957) 96 CLR, at p 474, where it says that the blamelessness of the client and the responsibility of the solicitor are material considerations, that the client's reasonable acceptance of a solicitor's advice, the solicitor having been properly apprised by the client of all the materials, relevant facts and circumstances within his knowledge, may be a sufficient explanation of the failure to take action within time. A conscious decision by a litigant to take a particular course after appreciating the relevant evidence and considerations in the light of which a decision is to be taken may very well in some circumstances lead directly to the conclusion that it would not be just to allow him to resile and to have an extension of time in which to sue; or at any rate provide no reason for entertaining the application to extend the time. But, on the other hand, a decision by the litigant concurring, whether tion of the relevant material, is in a different case and may well afford an acceptable explanation of the failure to sue: and, if there be no outweighing prejudice to the nominal defendant, may warrant the making of an order extending the time for suit. The extent to which a litigant can rely on the advice of his solicitor so as afterwards to be regarded as not having made a conscious and informed decision must depend to a significant extent on the nature of the proposed proceedings and the circumstances of the matter generally. But, it can be said that the expertise of the solicitor on which the client may rely must in some circumstances include the capacity to evaluate evidence - particularly when all of it is not known to the client - and to estimate the likely reaction to it of a court of law. In other words, the solicitor's skill on which a client may rely is not limited to questions of law. Of course there will be cases where, notwithstanding that expertise and the advice it produces, there remains room for a conscious and informed decision by the litigant for which he must bear responsibility. In my opinion, it is in the light of considerations such as these that the responsibility of the litigant for the failure to sue should be judged. If the conclusion is that he is "blameless" then it seems to me that the question of whether or not it is just in all the circumstances to extend the time can be considered. (at p436)

35. The primary judge was thus entitled in this case to consider that question. In my opinion, he had sufficient material before him to warrant the conclusion that it would be just to grant the extension of time. He was not in error, in my opinion, in thinking that no real prejudice to the nominal defendant was involved. For my part, and with due respect to the Full Court, I do not see any substantial prejudice suffered by the nominal defendant. None of the reasons preferred in this respect to the primary judge are, in my opinion, valid, nor are any of the reasons advanced in this Court. The nominal defendant obtained notice in due time and presumably had access to all witnesses and to the statements made by them to the police. He chose to contest in the action the issue of his liability in point of fact when procedures were available to him to determine first his legal position. The costs of that abortive contest of fact can scarce be laid at the appellant's door. The lapse of time has not lost him any witnesses. Their evidence is on record to minimize any lapse of memory. He was not shown to have acted to his detriment upon any assumption that he is quit of liability to the appellant by reason of the lapse of time. On the other hand, the appellant has suffered substantial injuries and, whatever his solicitor's reasoning, has reasonably accepted his advice in a matter on which he was entitled to rely upon it. (at p436)

36. But the primary judge was influenced in the exercise of his discretion by his own estimate of the solicitor's reasons for not suing in time. I do not think his Honour was in error in seeking an explanation of the solicitor's decision not to sue. The reasons for taking that course might well, in some circumstances, provide material properly influencing the exercise of the discretion. But, it is not necessary, in my opinion, in a case where the client is "blameless" in the sense I have mentioned, that the solicitor's advice should be tainted with mistake of fact or of law before the discretion to extend time can be exercised favourably to the client applicant. (at p437)

37. The solicitor's reasons were very much a matter of the probabilities upon facts deposed to by affidavit assisted by some cross-examination of the solicitor. The evidence contained inconsistencies : so some choice between probabilities had to be made. It is important to observe the precise view the primary judge took. He said that the solicitor thought that if Mr. Warren persisted in his statement that a second car was present, he was likely to join the nominal defendant as a third party in which case the issue of the presence or otherwise of a second vehicle would be determined without risk to the plaintiff. His Honour further said that if the solicitor had not thought that the nominal defendant could be joined, he would not have taken the risk of not joining him in the action. (at p437)

38. For my part, I would not have drawn this last conclusion. I would rather have thought that, having formed an unfavourable view of his client's claim that a second vehicle was present, the solicitor decided not to take the risk of joining the nominal defendant in the action. But, an element in that decision was the view the solicitor held, that, if the nominal defendant were joined - a course he was, in my opinion, entitled to consider as likely - the total amount which the plaintiff would obtain as the result of the defendant's success in the third party claim would be close enough to his full entitlement as to make the joinder of the nominal defendant clearly not worth while. (at p437)

39. For my part, I see no ground for denying the reasonableness of such an approach. But, implicit in that reasoning is the assumption that as a matter of law recovery against the nominal defendant was a possibility. This the solicitor could well assume. (at p437)

40. Whilst upon the judgment of his Honour who heard the cause, the solicitor would be in error in making that assumption, neither the Full Court nor this Court has examined the propriety of his Honour's view. Consequently, without such an examination, neither the Full Court nor this Court could say that the solicitor was mistaken in the relevant law. But, the primary judge was entitled as a matter of comity to accept the view of the trial judge and treat the solicitor's unexpressed assumption as erroneous. (at p438)

41. His Honour did not express the view that the solicitor thought that by the joinder of the nominal defendant as a third party, the client might obtain the full amount of his damages. Though it is unlikely that the solicitor told his client so, the appellant did say that he believed that the joinder of the nominal defendant would make it possible for him to recover all his damages. I do not think that this statement of the appellant is incredible but, in any case, nothing has been founded upon it. (at p438)

42. Although I would not conclude as the primary judge did, that if the solicitor had known that the nominal defendant could not be joined as a third party he would have joined him as a defendant in the action, I could not say that his Honour was in error in his conclusion. The matter is very much a question of estimating probabilities and I could not say that his Honour's view was not open to him. (at p438)

43. Consequently, although the Full Court may have been unwilling, as I would be unwilling, to draw all the conclusions which commended themselves to the primary judge, the majority of the Full Court were not entitled, in my opinion, to interfere with his Honour's exercise of discretion. They were not warranted, in my opinion, in holding that his Honour was in error in any fact on which the exercise of his discretion was founded. None of the conditions of s. 45 of the Supreme Court Civil Procedure Act 1932 were, in my opinion, satisfied. (at p438)

44. However, as appears from what I have written, had I thought the difference in opinion between the Full Court and the primary judge as to the reasons which probably motivated the solicitor justified the Full Court in finding an error of fact radical to the exercise of the discretion, with due respect to the Full Court, I would not agree with its exercise of the discretion. (at p438)

45. I would allow the appeal and restore the order of the primary judge, but substituting for the word "one" in his order the word "fifteen". (at p438)

TAYLOR J. This is an appeal brought as of right against an order of the Full Court by which the order of a single judge extending the time limited by s. 65A (1) of the Traffic Act 1925 by a period of nearly two years for the institution of proceedings by the appellant against the respondent was set aside. Being uncertain whether the appeal lay as of right the appellant's advisers also filed a motion for leave or, alternatively, special leave to appeal. (at p438)

2. Section 65A (1) of the Traffic Act gives a statutory right of action against the nominal defendant in the circumstances therein specified. Sub-section (2), however, provides that a person is not entitled to obtain a judgment under that section unless, inter alia, he institutes proceedings against the nominal defendant within six months after the occurrence of the accident, that is, the event out of which his cause of action arises. But sub-s. (3) goes on to provide that notwithstanding anything in the preceding sub-section the court, upon application being made in that behalf, may, after hearing such of the persons affected or likely to be affected by the application as it thinks fit, extend the time limited by that sub-section for instituting proceedings for such further period as the court thinks fit. (at p439)

3. In Sophron v. The Nominal Defendant (1957) 96 CLR 469 an appeal brought as of right from an order refusing an extension of time upon an application made pursuant to the Motor Vehicles (Third Party Insurance) Act of New South Wales was dismissed on the merits but the Court expressly left open the question whether such an order is interlocutory or final within the meaning of s. 35 of the Judiciary Act. On the strength of that case we were invited to consider the merits of the appeal but it is, I think, both desirable and necessary that the preliminary question should now be decided. (at p439)

4. A great deal has been said concerning the distinction between final and interlocutory orders but it has, in the main, been the practice of courts to confine themselves to a consideration of the character of the particular order in question in each case. Indeed, in In re Page; Hill v. Fladgate (1910) 1 Ch 489 Cozens-Hardy M.R. commenced his judgment by saying : "I have no intention of attempting the task of defining exhaustively or accurately the meaning of an interlocutory order. I leave that to others. The only point we have to decide here is whether the order in this particular case is an order which must be appealed against within the time limited for appeals from interlocutory orders" (1910) 1 Ch, at p 491 "Others" have, however, not, in general, attempted the task which the Master of Rolls declined to undertake. However, at an earlier stage Lord Alverstone C.J., when called upon to say whether a particular order was interlocutory or final said : "It seems to me that the real test for determining this question ought to be this : Does the judgment or order, as made, finally dispose of the rights of the parties ? If it does, then I think it ought to be treated as a final order ; but if it does not, it is then, in my opinion, an interlocutory order": Bozson v. Altrincham Urban District Council (1903) 1 KB 547, at pp 548-549 Much the same test has been proposed on other occasions and, if I may say so with respect, it provides a broad test which is unexceptionable. So an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only. On this basis an order staying proceedings against one of several defendants on the ground that they are scandalous, vexatious and an abuse of the process of the Court has been treated as interlocutory : Hind v. Marquis of Hartington (1890) 6 TLR 267 The same view was taken of an order striking out a plaintiff's statement of claim on the ground that it disclosed no reasonable cause of action : Jones v. Insole (1891) 64 LT 703 and of an order dismissing an action as frivolous and vexatious in In re Page (1910) 1 Ch 489 In Manley Estates Ltd v Benedek (1941) 1 All ER 248 there were successive applications to extend time under a provision similar to that in question here, whilst Atwood v. Chichester (1878) 3 QBD 722 shows that an order dismissing an application to set aside a default judgment did not constitute a bar to a subsequent application of the same character. It is not, however, of the essence of an interlocutory order that it is one made in the course of a pending action or suit and the last-mentioned case may be regarded as illustrating this proposition. Further, in Smith v. Cowell (1880) 6 QBD 75 the objection was taken that the order sought in that case was not "interlocutory" and the objection was supported by the contention "that an order is interlocutory only if made at some time between writ and final judgment". The contention was expressly rejected by the Court of Appeal which was unanimously of the opinion that the expression "interlocutory order" was wide enough to include orders made after the conclusion of proceedings in the action. Brett L.J., referring to the jurisdiction given to the Court by s. 25 (8) of the Judicature Act, said : "The power there given is of the largest kind, unless it is circumscribed in point of time by the words 'interlocutory order'. But it is said that interlocutory must mean something between action begun and final judgment. I cannot agree. In my opinion, 'interlocutory order' there means an order other than a final judgment or decree in an action"(1880) 6 QBD, at p 78 The order in the present case was made in proceedings preliminary to the bringing of an action and although it deprived the appellant of the benefit of the order of the learned judge of first instance, it did not operate to prevent him from making a further application for an extension of time. No doubt its practical effect was that any further application would have been fruitless unless supported by additional relevant facts but the order made by the Full Court did not of its own force conclude his right to bring an action. (at p441)

5. In my opinion, the order in question was not final in the sense in which that term is used in relation to judgments and was interlocutory only so that the appeal was, to say the least, incompetent without leave. But whether or not the order of the Full Court is or is not properly characterized as interlocutory it seems to me that it cannot be said, as the appellant asserts, that it was a judgment which "involves directly or indirectly any claim, demand, or question to or respecting any property or civil right amounting to the value of 1,500 Pounds". As I have already said the order deprived him of the benefit of the order of the learned judge of first instance but it did not operate directly or indirectly, finally, to deprive him of a right of action against the nominal defendant. In these circumstances the question of value cannot be resolved by the expedient of attempting to estimate the value to him of his right of action and special leave to appeal is, therefore, necessary. (at p441)

6. In my view this is not a case in which special leave should be granted. In the first place the case is not of such a nature as to call for the granting of special leave and, additionally, the unsatisfactory and conflicting nature of the evidence adduced in support of the application in the first instance provides an additional reason why special leave should not be granted. (at p441)

7. The latter feature of the case also induces me to think that if special leave were granted the appeal should be dismissed. Further, I think no sufficient reason has been advanced to justify the Court in interfering with the order made by the majority of the Full Court and I would, if necessary, dismiss the appeal on this ground. (at p441)

WINDEYER J. At the threshold of this case is the question whether an appeal to this Court lies as of right (assuming that the sum of 1,500 Pounds is involved), or whether there is only an appeal by leave. That depends upon whether the order appealed from is final or interlocutory for the purposes of s. 35 of the Judiciary Act. During the argument I said that it seemed to me to be a final order. But on consideration I realize that the question is not an easy one. I have been tempted to do no more than echo the statement of Buckley L.J. who once said ". . . the decisions are so conflicting that I confess I am unable to arrive at any conclusion satisfactory to my own mind as to whether this is an interlocutory or a final order" : In re Page ; Hill v. Fladgate (1910) 1 Ch, at pp 493-494 But a conclusion is necessary whether satisfying or not. (at p442)

2. The starting point must, I think, be in a consideration of the nature of the time limit that the Traffic Act 1925 (Tas.), s. 65A, prescribes for actions against the nominal defendant. The provision is as follows:

"65A (1) . . . (2) A person is not entitled to obtain a judgment under this section unless - (a) within one month after the occurrence of the accident he gives to the Attorney-General notice of intention to make a claim under this section, together with a short statement of the grounds thereof; and

(b) he institutes proceedings against the nominal defendant within six months after the occurrence of the accident.

(3) Notwithstanding anything in subsection (2) of this section, the court, upon application being made in that behalf, may, after hearing such of the persons affected or likely to be affected by the application as it thinks fit, extend the time limited by that subsection for giving notice of intention to make a claim or for instituting proceedings, or both, for such further period as the court thinks fit." (at p442)

3. Section 65A creates an entirely new right of action. The times limited for the notice of claim and for the institution of proceedings do not (as do the provisions of the Statute of Limitations in the case of ordinary actions at law) bar the remedy for the enforcement of rights independently existing. They are built-in and essential conditions of the new right itself. They are not, as I read the section, procedural requirements that the defendant might waive as requirements for notices of action sometimes are. I had occasion in Australian Iron &Steel Ltd. v. Hoogland (1962) 108 CLR 471, at p 488 to refer to some of the cases in which this distinction was adverted to and I shall not list them again here. Coming then directly to whether an order made under s. 65A (3) enlarging the time for bringing into existence an essential element of the right is final or interlocutory: the distinction between final and interlocutory orders has in England caused much difficulty. The question can be approached and has been approached in several ways : see the Annual Practice, 1966, pp. 1664, 1665. Professor Wheatcroft, formerly a Master of the Supreme Court, who contributed the article on Judgments and Orders to the third edition of Halsbury's Laws of England, has listed (Halsbury vol. 22, p. 743) four different tests that have been suggested for ascertaining the finality of a judgment or order. In most cases the test that seems to be most satisfactory, and the one that accords most nearly with what has been said on the subject in this Court, is it seems to me to look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principal cause pending between them. It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation. In Standard Discount Co. v. La Grange (1877) 3 CPD 67 Bramwell L.J. recognized this when he said : "There cannot be an order which is neither final nor interlocutory ; and therefore if the order before us is not final, it must be interlocutory. Is it a final order? It is like every other order in one sense final, so long as it is not appealed against, but it is not the final order of the Court in the cause" (1877) 3 CPD, at pp 69, 70 . In the same case, Brett L.J. said : "I cannot help thinking that no order in an action will be found to be final unless a decision upon the application out of which it arises, but given in favour of the other party to the action, would have determined the matter in dispute" (1877) 3 CPD, at p 72 And later his Lordship, then Lord Esher M.R., adhered to this as "the best rule for determining these questions ; the rule which will be most easily understood and involves the fewest difficulties"; and Lopes L.J. agreed : Salaman v. Warner (1891) 1 QB 734 But it is not a view that has had general acceptance : see Isaacs &Sons v. Salbstein (1916) 2 KB 139 And it cannot be regarded as of general application because an order in favour of one party to an application may finally determine the dispute between them whereas an order to the opposite effect would not. For example, an order setting aside a jury's verdict and ordering a new trial is clearly interlocutory. But an order refusing a new trial is final : Adams v. Herald and Weekly Times Ltd.(1934) 50 CLR 1 A grant of a new trial means that until the new trial be concluded and judgment entered thereupon there is no final judgment in the action, whereas a refusal of a new trial means that final judgment is entered in accordance with the postea at the trial. In that sense it may be correct to say that the question is resolved by looking not at the decision to grant or refuse a new trial but at the consequences of that decision upon the judgment to be entered in the action. The effect of such decisions as there are of this Court on the point seems to me to be that when an action has been commenced between parties then whether an order in that action is interlocutory depends on whether or not it results in a final determination of that action. I say of "that action" because it appears that the question depends more upon the action actually brought by a writ than upon the cause of action upon which the writ was founded. For example, it has been held that a judgment of non-suit is a final judgment, notwithstanding that it leaves the plaintiff at liberty to bring another action for the same cause : Coroneo v. Kurri Kurri and South Maitland Amusement Co. Ltd.(1934) 51 CLR 328, at p 334 A judgment on a demurrer may thus be either final or interlocutory depending upon circumstances : Hope v. R. C. A. Photophone of Australia Pty. Ltd. (1937) 59 CLR 348; John Grant &Sons Ltd. v. Trocadero Building and Investment Co. Ltd. (1938) 60 CLR 1, at p 35 These cases are all illustrative of the general proposition that a final order is one which finally disposes (subject only to appeal) of an action or an existing dispute between parties. This Court has said that "it must not be forgotten that it is the interlocutory nature of the order, not the nature of the motion or other proceedings in which the court made the order, that determines whether leave is required" : Ex parte Bucknell (1936) 56 CLR 221, at p 225 But I find it hard to relate the test of finality or otherwise in the determination of a dispute between parties to an application under s. 65A (3), because in such a case there is no existing dispute between parties and no existing action, and unless the prescribed times be complied with or extended there is no cause of action it seems to me. There are no defined parties to the application under s. 65A (3). The court is required to hear "such of the persons affected or likely to be affected by the application as it thinks fit". If the times prescribed have expired at the date of the application the question is, should the applicant who is out of time for fulfilling a condition for obtaining a judgment against the nominal defendant be put in the position that he has a cause of action. The question is, in effect, whether he should be permitted to bring an action. A refusal of his application means that he cannot do so. I am prepared to assume that in practical effect, if not in strict law, a refusal would preclude him from making another application for an extension of time. But does this mean that such a refusal would be a final order? On the whole I think not. The question is a troublesome one ; and I have found no analogy on which to base my decision. The position when there is an existing dispute between defined parties does not, I think, provide an analogy. There, as I have said, the cases shew that the determining factor is the effect of the order in establishing finally or otherwise the rights of the disputant parties - does it put an end to an existing dispute or existing action? But in a case such as this the character of the proceedings in which the order is made seems to me of more significance than is the result for the applicant. I am unable to accept the view that if an extension of time as sought were granted such an order would be a final order. It seems to me it would be interlocutory ; and I think that the position is the same if the extension be refused or if a lesser time were allowed than was sought. (at p445)

4. The matter that then arises for consideration is whether this is a case in which leave should be granted. Ordinarily I would say that in a case of this kind where there is a wide discretion not controlled by any express criteria but only by the general purpose and policy for which the discretion is granted, this Court should be most reluctant to entertain an appeal. Nevertheless there are, I think, some special considerations in this case ; and, as it was fully argued before us, I have come to the conclusion that leave to appeal should be given and the appeal allowed. However, as, having regard to the decisions of other members of the Court, this view cannot prevail, I shall only state my reasons briefly. I shall not go into the facts. This case has, I think, shewn how much trouble can arise from an attempt to translate particular reasons given for the exercise of a discretion in one set of facts as a test of the validity of the exercise of a similar discretion in a different set of facts. All that I would say is that the time limits prescribed by s. 65A (2) are prescribed for a purpose, and there must be some sure ground for setting them aside, something more, that is, than a belief that no harm might come of doing so. Adopting the language that Hill J. used of another discretion, in terms uncontrolled, to extend time (under the Maritime Conventions Act, 1911 (U.K.), s. 8), I would say that "the discretion can only be used in favour of a plaintiff if there are special circumstances which create a real reason why the statutory limitation should not take effect": The Llandovery Castle (1920) P 119, at p 125 It is quite apparent, and indeed courts have observed, that claims against the nominal defendant based upon false allegations of the presence of an unidentified motor vehicle can easily be made and are not easily disproved. The provisions of s. 65A (2) give some protection against this. The notice of claim within a month after the accident, required by par. (a) enables the authorities to investigate the matter promptly. The institution of proceedings within six months helps to ensure that a case, which often needs careful probing, will be heard while evidence is still available and fresh and when recollections have not become distorted in other proceedings. On the other hand it is to be remembered that actions against the nominal defendant are not like actions against private persons. Delay in having the liability ascertained is not of itself inimical to justice ; and there may be cases in which it seems that justice would be best served by allowing a case to be tried upon the merits, notwithstanding that par. (b) of s. 65A (2) has not been complied with. In the present case par. (a), which is perhaps the more important requirement, was complied with and Neasey J. thought that the facts were sufficient to justify him in giving the applicant further time to meet the requirements of par. (b). I do not say that I agree in his exercise of his discretion in this way. Had it been my duty to decide whether the application for an extension of time should be allowed I think I would have been disposed to refuse it. But I do not think that, either upon general principles or upon the restatement of those principles in s. 45 of the Supreme Court Civil Procedure Act 1932 (Tas.), his Honour's exercise of his discretion was so mistaken that the Supreme Court was called upon to interfere and set it aside. The principle is clear. I may quote a recent statement of it in this Court by Dixon C.J. in Klein v. Domus Pty. Ltd. (1963) 109 CLR 467, which was referred to by the learned Chief Justice of Tasmania : "If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case"(1963) 109 CLR, at p 473 (at p446)

5. Unless there be some quite obvious departure by the judge from that path, and I do not think there was here, another court must greatly hesitate before it cancels an order allowing further time to institute proceedings under s. 65A even though it thinks his decision mistaken. The public interest may be best served in the long run by allowing the proceedings that he has authorized to go to trial. (at p446)

6. The question whether leave to appeal would suffice or whether special leave is needed depends upon whether the judgment of the Supreme Court involves directly or indirectly the sum of 1,500 Pounds in the sense required by s. 35 (a) of the Judiciary Act. I am inclined to think that it does not involve that sum, and that therefore special leave is required. But I do not in the circumstances think that I need decide this question. It is enough to say that the case does seem to have some special features, and that I would be prepared to grant special leave if required and I would allow the appeal. (at p447)

OWEN J. For the reasons given by Taylor J. I agree that this case is one in which an appeal lies only by special leave and that this is not a case in which special leave should be granted. In view, however, of the fact that there is a division of opinion on this question, I would add that I think that the Full Supreme Court was entitled to take the view that it did and that no good reason has been shown for holding that it fell into error in exercising its discretion. (at p447)

Orders

Special leave to appeal granted.

Appeal dismissed with costs.