Hickey's Transport Pty Limited v Ken Gordon

[2008] NSWCA 167

New South Wales

Court of Appeal

CITATION:	Hickey's Transport Pty Limited v Ken Gordon [2008] NSWCA 167
HEARING DATE(S):	15 July 2008
JUDGMENT DATE:	8 August 2008
JUDGMENT OF:	Ipp JA at 1; McColl JA at 94
DECISION:	1. The application for leave to appeal is granted .2. The appeal is upheld. 3. The orders made by Hungerford ADCJ are set aside. 4. Mr Gordon's application to reinstate his claim is dismissed. 5. Mr Gordon to pay the costs of the application for leave to appeal and the appeal and the costs of the hearing before Hungerford ADCJ. 6. Mr Gordon is granted a certificate under the Suitor's Fund Act 1951, if otherwise qualified.
CATCHWORDS:	MOTOR ACCIDENTS COMPENSATION - dismissal then reinstatement of claim under Motor Accidents Compensation Act 1999 section 110 - whether "full and satisfactory explanation" for delay - relevant factors - mistake by solicitors. - PRACTICE AND PROCEDURE - appeal - review of findings of fact by trial judge sitting alone - findings based on credibility of witnesses.
LEGISLATION CITED:	Legal Profession Act 2004 Motor Accidents Compensation Act 1999 Uniform Civil Procedure Rules 2005 Suitor's Fund Act 1951
CATEGORY:	Principal judgment
CASES CITED:	Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Great Australian Gold Mining Company v Martin [1877] 5 Ch D 1 McNamara v Fitzgibbon [2005] NSWCA 274 Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735 State Rail Authority of NSW v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588
PARTIES:	Hickey's Transport Pty Limited - Claimant/Appellant Ken Gordon - Opponent/Respondent
FILE NUMBER(S):	CA 40405/07
COUNSEL:	K Rewell SC and G Smith - Claimant/Appellant S Norton SC and E Welsh - Opponent/Respondent
SOLICITORS:	TL Lawyers - Claimant/Appellant Brydens Law Office - Opponent/Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 5662/06
LOWER COURT JUDICIAL OFFICER:	Hungerford ADCJ
LOWER COURT DATE OF DECISION:	1 June 2007

IN THE SUPREME COURT

CA 40405/07
DC 5662/06

IPP JA
McCOLL JA

Friday 8 August 2008

HICKEY’S TRANSPORT PTY LIMITED v KEN GORDON

Judgment

1 IPP JA:

The challenge to the reinstatement of Mr Gordon’s claim

2 On 2 December 2003, Mr Ken Gordon attempted to climb into a Volvo prime mover owned by his employer, Hickey’s Transport Pty Ltd (“Hickey”). He gripped a handle attached to the rear of the cabin. The handle broke and Mr Gordon fell backwards onto a concrete surface. As a result, he suffered injuries to his neck and back.

3 On 12 January 2005, Brydens (Mr Gordon’s solicitors) served a personal injury claim under s 72 of the Motor Accidents Compensation Act 1999 (the “MAC Act”) on Hickey’s third party insurer. On 18 August 2005, the insurer denied liability for the claim. On 13 September 2005, a certificate under s 92 of the MAC Act was issued, entitling Mr Gordon to commence court proceedings.

4 On 14 March 2006, Hickey’s insurer gave Mr Gordon notice under s 110(1) of the MAC Act requiring him to commence court proceedings. By s 110(2) of that Act, Mr Gordon was required to comply with that notice within 3 months after its receipt. He failed to do so. Accordingly, by s 110(3) of the Act, he is to be taken to have withdrawn his claim. He applied to Hungerford ADCJ for an order under s 110(5) of the Act reinstating his claim. His Honour granted the order Mr Gordon sought.

5 Hickey now applies for leave to appeal and, subject to that application being granted, appeals against the decision of Hungerford ADCJ reinstating Mr Gordon’s claim.

6 Hickey contends that Hungerford ADCJ wrongly held that Mr Gordon gave a full and satisfactory explanation, as required by s 110(5), for his failure to comply with the s 110(1) notice.

7 Section 110 provides:

“(1) The insurer of a person against whom a claim is made may give the claimant notice requiring the claimant to commence court proceedings in respect of the claim if:
(a) the claimant has been entitled to commence the proceedings for a period of at least 6 months, and
(b) at least 18 months have elapsed since the date of the motor accident to which the claim relates.
(2) The claimant must comply with the notice within 3 months after its receipt.
(3) If the claimant does not comply with the notice as required by this section, the claimant is taken to have withdrawn the claim.
(4) A claimant whose claim is taken to have been withdrawn by the operation of this section may apply to a court of competent jurisdiction for reinstatement of the claim.
(5) The court may reinstate the claim if the court is satisfied that the claimant has a full and satisfactory explanation for the failure to comply with the notice.”

8 Section 110(5) affords the court discretionary power to reinstate a claim. The discretion is triggered once the court is satisfied that the claimant has given a full and satisfactory explanation for the failure to comply with the notice. The explanation must cover not only the delay within the three month notice period under s 110(2), but also any delay between the expiry of that period and the date on which the application for reinstatement is made: McNamara v Fitzgibbon [2005] NSWCA 274 at [40] – [42] per Ipp JA (with whom Santow JA and Campbell AJA agreed).

9 By s 66(2) of the MAC Act, a “full and satisfactory explanation” by a claimant under s 110(5) for a delay in complying with the 3 month notice requires:

“[A] full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant … would have been justified in experiencing the same delay.”

10 Basten JA (with whom Handley JA and McColl JA agreed) remarked in Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735 at [72]:

“[T]he assessment required to be made of the explanation given by the claimant, for it to be ‘full and satisfactory’ has been said to involve a normative judgment. The normative element is encompassed by the need to describe the delay incurred as something which a reasonable person in the position of the claimant ‘would have been justified’ in experiencing. The relevant norms or standards are those to be derived from the scheme of the [MAC Act], including its object, as set out in s 5.”

11 The primary judge’s finding that he was satisfied that Mr Gordon had a full and satisfactory explanation for his failure to comply with the s 110(1) notice is “a factual conclusion involving an evaluative or normative judgment”; accordingly, the constraints on challenges to the exercise of a discretionary power are not applicable to the issue of whether that finding was correctly made: Smith vGrant at [10] and [11] per Basten JA. Those constraints do apply, however, to the discretionary decision to reinstate that arises once a finding of a full and satisfactory explanation is made.

12 An unusual feature about this case is that no evidence was adduced from Mr Gordon himself. In Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 Gleeson CJ said at [10]:

“What is in question in a case such as the present is an explanation for delay on the part of a claimant in making a claim; that is to say, an explanation for the conduct of the claimant. Leaving aside cases of incapacity, or other exceptional circumstances, ordinarily it will be the claimant who is in the best position to give … ‘a full account of the conduct, including the actions, knowledge and belief’ of the claimant in relation to the reasons for the delay.”

13 As Gleeson CJ envisaged, there may be cases where it may be unnecessary for a claimant to testify personally, for example, where some other person knows all the relevant facts and the claimant is ignorant of them. Ms Norton SC, who together with Ms Welsh appeared for Mr Gordon, submitted that this case fell within the latter category and it was unnecessary for Mr Gordon to testify personally.

14 Mr Gordon adduced evidence by two members of Brydens, the firm of solicitors that represented him, namely, the partner (Mr Bryden) supervising the case and a law clerk (Ms Ranson) who, at least partially, had the conduct of it. Both testified, in effect, that Mr Gordon’s failure to comply with the s 110(1) notice within the stipulated three-month period was due to their error. They asserted (without giving any direct evidence as to his state of mind) that Mr Gordon “always” intended to bring proceedings in negligence against Hickey and they had attempted to carry out his instructions. They said that, in error, they had issued a statement of claim on behalf of Mr Gordon against the manufacturer of the vehicle from which he had fallen, namely, Volvo Commercial Vehicles Australia Pty Ltd (“Volvo”), but had inadvertently failed to include Hickey as a co-defendant in the action.

15 Hungerford DCJ accepted their evidence and found that “there was always the intention to bring a claim against [Hickey]” and that “a mistake had been made”. His Honour said that the mistake was not caused by fault on the part of Mr Gordon. He found that the mistake (and other conduct of Mr Gordon’s solicitors in delaying the issuing of a statement of claim against Hickey so that they could first arrange for a view of the truck from which he had fallen) had caused the delay and the explanation that had been given for the delay was “full and satisfactory” as required by the MAC Act.

16 Mr Rewell SC, who together with Mr Smith appeared for Hickey, submitted that Hungerford ADCJ’s order for reinstatement of Mr Gordon’s claim should be set aside on the following grounds:

(a) In the absence of any evidence from Mr Gordon, his Honour could not reasonably be satisfied that Mr Gordon had provided a full and satisfactory explanation for his non-compliance with the s 110(1) notice.

(b) Mr Gordon had provided no explanation for the delay between 14 June 2006 (when the s 110(1) notice expired) and 10 August 2006 (when Ms Ranson had a telephone conversation with Mr Renshaw, Hickey’s solicitor, about the taking of proceedings by Mr Gordon against Hickey), and between 10 August 2006 and 24 November 2006, when Mr Gordon filed his statement of claim against Hickey in the District Court.

(c) In exercising his discretion Hungerford ADCJ erred:

(i) in taking account of the fact that the statement of claim was filed “within the ordinary limitation period”; and

(ii) in stating “I do not think it to be any purpose of the [MAC Act] to set up procedural bars to a potential plaintiff in a proper claim.”


(d) Hungerford ADCJ failed to deal with Hickey’s argument that Mr Gordon’s claim against it was futile.

The events leading to the giving of the s (110)(1) notice

17 In mid August 2004, Mr Gordon consulted Mr Bryden about the injuries he had sustained on 2 December 2003. Mr Bryden stated:

“I was uncertain on the basis of [Mr Gordon’s] instructions whether any cause of action was available to him at that stage. As I had no evidence of negligence I considered that the best course was to obtain medical reports and seek counsel’s advice concerning the matter.”

18 Mr Bryden then obtained various medical reports. On 23 November 2004 he had a conference with counsel and counsel’s advice was received a few days later. Apparently, claims against both Hickey and Volvo were discussed with counsel. Counsel recommended that a personal injury claim form, in relation to Mr Gordon’s claim against Hickey, be served in accordance with s 72 of the MAC Act. It is not apparent what other advice counsel gave, if any.

19 In cross-examination, Mr Bryden was asked whether he communicated to any person in his office the decision that Mr Gordon should commence proceedings against both defendants. He replied

“it’s implicit in the files. We got counsel’s advice – it’s just implicit. No, I can’t recall specifically telling anybody ‘do this, do that’, but its not my role to do that, it happens.”

How this was “implicit” is not apparent. There was no evidence as to whether counsel’s advice was oral or in writing and, if oral, whether Mr Bryden or some other person made a note of it. The role counsel played, other than in advising that a personal injury claim form be served and in drafting the statement of claim against Volvo, is obscure.

20 I have mentioned that on 12 January 2005 Brydens served the personal injury claim form. On 18 August 2005 the insurer denied liability for the claim, and on 13 September 2005 a certificate under s 92 of the MAC Act was issued, entitling Mr Gordon to commence court proceedings. On 6 October 2005 the insurer sought particulars of Mr Gordon’s claim.

21 Mr Gordon tendered, as part of his case, a file note dated 21 March 2006 derived from Brydens’ file. A person called “Fran” wrote the file note, which was addressed to a person called “Maria”. Neither Fran nor Maria gave evidence and neither was more closely identified in the evidence. Mr Bryden and Ms Ranson made little reference to them. It may be inferred that both were employees of Brydens and that each to an unknown extent was involved, for a period, in the management of Mr Gordon’s case.

22 The file note asks whether the statement of claim has been filed and states “if not please do so”. The note also contains the instruction: “diarise for commencement in accordance with s 110 notice (new statute date is three months from 16/3/06)”. The reference in the file note to a s 110 notice implies that the statement of claim that Fran was asking Maria to file involved citing Hickey as a defendant as the MAC Act did not apply to the action against Volvo.

23 Ms Norton submitted that the file note established that, from the time Mr Gordon first instructed Brydens, their intention (that is, the intention of Brydens and Mr Gordon) was to sue Hickey. I accept that the file note tends to prove that that was the intention of Fran at the time the note was made. It does not, however, prove her intention at any other time. Moreover, there was insufficient evidence to establish how the intention of Fran could be regarded as the intention of Brydens or Mr Gordon. The impression given by the evidence of Mr Bryden and Ms Ranson was that the conduct of the case was in Ms Ranson’s hands, subject to Mr Bryden’s supervison.

24 I would add that no explanation was provided as to why a statement of claim was not filed by Maria within a reasonable time after 21 March 2006 (aside from the general submission that there was an error in failing to make Hickey a co-defendant in the statement of claim filed against Volvo). As I have mentioned, Mr Gordon, Maria and Fran gave no evidence and, therefore, there was nothing from them to support the submission so made.

The events following the receipt of the s 110(1) notice

25 As I have mentioned, on 14 March 2006 Hickey’s insurer served a notice under s 110(1) of the MAC Act requiring that Mr Gordon commence court proceedings within 3 months from receipt of the notice. A week after the s 110(1) notice had been served, Brydens replied to Hickey’s insurer’s request for particulars.

26 Mr Gordon tendered a file note from Brydens’ file dated 1 June 2006, again made by Fran. This file note was to the effect that the statement of claim “has to be filed now”. There was no evidence as to which statement of claim Fran had in mind and who the defendant to that statement of claim was to be (i.e., whether it was to be Volvo or Hickey or both).

27 Mr Bryden testified:

“On 7 June 2006 a court document had been prepared and [Mr Gordon] was asked to provide $500 towards the cost of commencement of proceedings.”

The “document” that had been prepared must have been the statement of claim against Volvo, not Hickey. That is the document that in fact was filed the next day.

28 Mr Bryden stated:

“On 8 June 2006 proceedings were commenced in the District Court at Sydney … Unfortunately the proceedings which were commenced were not the proceedings against the owner of the vehicle against whom the motor accident claim was made but rather those proceedings involved Volvo Commercial Vehicles Australia Pty Limited being the manufacturer and supplier of the vehicle.”

29 Mr Bryden went on to say:

“It was also intended to commence proceedings against both the owner of the vehicle under the [MAC Act] and also against the manufacturer and supplier of the vehicle. The proceedings against [Hickey] were commenced on 24 November 2006 which is approximately four months after the proceedings should have been commenced in order to comply with the s 110 notice but within the three year limitation period imposed by s 109 of the Motor AccidentsCompensation Act .
The plaintiff’s failure to comply with the notice under s 110 is entirely due to the filing of the wrong statement of claim. It was always the plaintiff’s intention to prosecute his action and the mistake is in no way his fault.”

30 On 8 June 2006, Brydens, on Mr Gordon’s behalf, issued a statement of claim out of the District Court against Volvo, claiming damages for its alleged negligence in relation to the handle on the truck. This was not alleged to be a cause of action that fell under the MAC Act. The statement of claim against Volvo was filed six days before the date on which the s 110 notice in relation to Mr Gordon’s claim against Hickey expired (14 June 2006).

31 Mr Bryden said that he would have expected the statement of claim against Hickey to be filed prior to 14 June 2006. Nevertheless, he accepted that he was not aware that there was a pending time limit. He said that the reason for his ignorance was that it was not his “role to check the computer for impending time limits.”

32 Under cross-examination, Mr Bryden said that the statement of claim should have included Hickey as a co-defendant. In other words, according to him, the statement of claim should have been against both Hickey and Volvo as co-defendants. He did not suggest that there should have been two separate statements of claim.

33 Mr Bryden is a solicitor of longstanding experience and an accredited specialist in personal injury law. He signed the statement of claim although it only made Volvo a defendant and omitted Hickey as a party. He said that it “was the intention” to commence proceedings against the two defendants but he did not personally check the statement of claim. He left that to Ms Ranson, a law clerk who was also very experienced. He testified:

“No, no, it’s not my – my role is not to check it, it’s Ms Ranson’s role to check it and make sure it’s correct and it’s my role to sign the statement of claim once it has been checked by staff. As I said, I’ve got a supervisory role.”

34 Ms Ranson testified that she would have seen the draft statement of claim from counsel and she “generally” would have checked it. Ms Ranson could not specifically recall having checked the statement of claim but the document had her handwriting on it.

35 On 23 June 2006, Mr Renshaw, the appellant’s solicitor, advised Brydens that he was acting on behalf of Hickey. On 11 July 2006 Mr Renshaw wrote to Brydens asking whether they intended issuing proceedings against Hickey and drawing their attention to the fact that the three-month period under the s 110(1) notice served on 14 March 2006 had expired.

36 Ms Ranson testified that by 11 July 2006 she had become aware of the “mistake” in not joining Hickey as a defendant. The inference from the evidence is that by 11 July neither Mr Gordon nor Brydens had done anything to advance the case, notwithstanding Brydens’ request on 9 June 2006 for the payment of $500 towards the cost of commencement of proceedings. The first time that Ms Ranson looked at the file after the expiry of the three-month period was on 11 July, presumably by reason of Mr Renshaw’s letter of 11 July 2006. There is no evidence as to when Mr Gordon paid the $500, or indeed if he paid any amount.

The telephone conversation of 10 August 2006

37 Despite Ms Ranson’s knowledge on 11 July 2006 that a serious mistake had been made, neither she nor anyone else at Brydens took appropriate action until 10 August 2006, when she telephoned Mr Renshaw. According to Mr Renshaw, during this telephone conversation Ms Ranson said words to the effect:

“My instructions are not convincing that there would be success in an action against [Hickey], and that is why proceedings had not been issued against them. I would like a view of the truck and the handle, with a representative of Volvo also to be present.”

38 These words are not the words of a person wishing to correct an error in issuing a statement of claim that did not cite Hickey as a defendant.

39 According to Mr Renshaw, Ms Ranson also said:

“I do not want to go to the expense of joining [Hickey] to the proceedings, then put on a motion seeking an order for a view.”

40 Ms Ranson made a file note of her telephone conversation with Mr Renshaw on 10 August 2006. The file note first referred to the issue whether Brydens could have a view of the truck. The note then recorded:

“We do not want to go to the expense of [m]otion to join as we are not sure that we can prove negligence on behalf of owner of vehicle – [o]ur instructions are that the handle was rusted from inside out.”

41 Thus, Ms Ranson’s file note bears out Mr Renshaw’s version of the conversation.

42 On 17 August 2006 Ms Ranson wrote a letter to Mr Renshaw referring to their telephone conversation. The letter stated:

“We are reluctant to join your client to the proceedings at this stage. We have as you know commenced against Volvo.
As discussed we wish to inspect the handle of the vehicle as does Volvo. We understand that your client is not a party to these proceedings but would hope that they would co-operate to avoid putting on an unnecessary [m]otion to join them when it may just be a simple matter against Volvo.”

43 Again, Ms Ranson’s letter supports Mr Renshaw’s version of the conversation of 10 August 2006.

44 Ms Ranson deposed in an affidavit:

“It is correct to say that it was always our intention to commence proceedings in accordance with the s 110 notice. The mistake in failing to include [Hickey] in the proceedings which were commenced on 8 June 2006 occurred because it was assumed that a draft [s]tatement of [c]laim which had been drawn by counsel was the appropriate one when in fact it did not include [Hickey] as a defendant.
I realised that the mistake had been made when I reviewed the file on 10 August 2006. That is why I spoke to Mr Renshaw about the matter.”

45 According to Ms Ranson’s affidavit she said that in the telephone conversation with Mr Renshaw:

“I was talking about the expense of a notice of motion to join [Hickey] to the proceedings and not simply to commence proceedings against them. The reason I was discussing the need for a notice of motion with Mr Renshaw was because I appreciated the fact that proceedings should have been commenced in accordance with s 110 on or before 14 June 2006. I was anxious that there be no further problems with prosecuting the action against [Hickey] and for that reason I felt it would be a good idea to have a view so that the case would be properly prepared. I also ensured that the limitation period of 2 December 2006 was diarised so that the proceedings were in any event commenced within the ordinary 3 year limitation period.”

46 Ms Ranson said, when cross-examined, that she thought it desirable to have an expert inspect the handle because: “We wanted to get a clear indication of what happened with the truck before putting on the motion.” There was no evidence as to whether an inspection of the truck actually took place.

47 In cross-examination, Ms Ranson said that she did not form a view as to whether there was sufficient evidence of negligence on the part of Hickey’s as this was not her task. Ms Ranson said that, as at 3 November 2006, Brydens should have commenced proceedings against both Hickey and Volvo. She asserted

“The firm’s intention was always to pursue a claim against [Hickey].”

48 In cross-examination, Ms Ranson denied, despite what she had written on her file note, that she was or had been uncertain as to whether Mr Gordon could prove negligence. She said

“The way that [the file note] needs to be read is, we knew at that point in time that we had made a mistake by not commencing against Hickey’s. Prior to putting on a motion, if it was necessary, we wanted to inspect the handle.”

49 When cross-examining counsel persisted on this point, she said:

“My view is irrelevant. We had instructions to commence against [Hickey], counsel’s advice to commence against [Hickey], Mr Bryden’s view to commence against [Hickey], we had made a mistake. I’d spoken to counsel and he asked me to try and get the view first before we put on a motion against - to join [Hickey]. We knew we made an error in not joining [Hickey].”

50 Ms Ranson asserted that the fact that she did not have evidence of negligence against Hickey did not enter her mind. She was cross-examined extensively on her file note but would not concede that it reflected her state of mind.

Subsequent events

51 On 11 September 2006 Mr Renshaw wrote to Brydens noting their failure to commence proceedings against Hickey and pointing out that the consequence was that Mr Gordon’s claim against Hickey was deemed withdrawn. Mr Renshaw stated that he would have no objection in arranging for an inspection of the handle on the Volvo on the condition that the inspection, or any matters arising therefrom, would not be used for the purposes of an explanation pursuant to s 110(5).

52 The next relevant act that occurred was on 24 November 2006 when Brydens caused proceedings to be commenced against Hickey. On 28 November 2006 Brydens filed a motion under s 110(5) seeking an order for the reinstatement of Mr Gordon’s claim against Hickey.

The reasoning of the primary judge

53 Hungerford ADCJ referred to the difference between Ms Ranson and Mr Renshaw as to the discussion of 10 August 2006. His Honour observed:

“According to Mr Renshaw, the delay was because the then reasonable prospect of success against [Hickey] had not been then determined whereas Ms Ranson was saying she appreciated the claim should have included [Hickey] but was dealing with the matter pending further inquiry as to whether a notice of motion would be a success. That further inquiry included a view of the subject truck.”

54 His Honour went on to say that it was not necessary for him to deal with this dispute and remarked:

“I do not find any operative distinction between Ms Ranson and Mr Renshaw. Indeed, Ms Ranson’s file note of 10 August 2006 as to the conversation makes her position plain as stated in her affidavit. In other words, there was always the intention to bring a claim against [Hickey] but the stage that had been reached under s 110 meant further inquiries were sought to support a notice of motion to join [Hickey] to the action. I draw a distinction between the position the proceedings had then reached requiring a notice of motion and the mistake or error leading to the non-filing of the statement of claim.”

55 Following these remarks his Honour said:

“It seems to me it all gets back to the original intention to join [Hickey] about which, as Mr Bryden said, a mistake had been made. On the evidence, I am satisfied there was a full explanation … ."

The relevance of the solicitors’ mistakes

56 In arriving at his conclusion, his Honour relied on the following observations by Basten JA in Smith v Grant at [74]:

“The insurer was critical in certain respects of the conduct of the claimant’s solicitor. The actions of the solicitor were undoubtedly a relevant part of the explanation for the delay. However, there is nothing in the language of s 66(2) which directly requires that the conduct of the solicitor be ‘justified’. Indirectly, the solicitor’s conduct may be called into question to the extent that it is relevant to determining whether a reasonable person in the position of the claimant would have been justified in experiencing the delay. However, it was not necessary for the claimant to anticipate each criticism which might have been made of her solicitor and identify what her state or knowledge or belief was in relation to his compliance with standards of diligence which might be applicable to him. Her account, which included the material contained in her solicitor’s affidavit, is properly described as a ‘full account’ without her having undertaken that task.”

57 And at [74]:

“If the insurer wished to demonstrate that a reasonable person in [the claimant’s] position would have questioned her solicitor about aspects of the delay, or sought other advice, those matters could have been put to her in cross-examination. However, the insurer did not cross-examine either her or her solicitor.”

58 These remarks were obviously made by reference to the circumstances and context of the particular case. His Honour was not intending thereby to lay down a general rule. In Smith v Grant the claimant swore an affidavit giving her explanation for the delay. The errors made by her solicitors were entirely different to those made by Brydens. The cogency and weight of the evidence in each case differ. His Honour’s remarks quoted in the previous paragraph are not applicable to the circumstances of this case.

59 The actions (and inaction) of Brydens are undoubtedly a relevant part of the explanation for the delay in the present case. As Basten JA pointed out, s 66(2) does not require a claimant to “justify” the conduct of a solicitor whose conduct causes delay. Of course, however, as his Honour notes, the conduct of the solicitor may be relevant to determining whether a reasonable person in the position of the claimant would have been justified in experiencing the delay. Where the delay is not insignificant, and where the conduct of claimants’ solicitors has obviously been careless or slack, one would ordinarily expect the claimants concerned to explain what they knew of that conduct, whether they understood its legal implications, whether they questioned the solicitors about what was taking place and whether they themselves, in the particular circumstances, took reasonable steps to combat the delay.

60 The delay in this case was significant. Mr Gordon did not essay an explanation personally. He relied merely on the testimony of his solicitors, or some of them.

The basic explanation for the delay

61 Ms Norton, in supporting Hungerford ADCJ’s decision, said

“The explanation about everything is this case went off the rails and the solicitors put up their hands and acknowledged it at every point.”

62 Ms Norton’s argument is encapsulated in the following submission:

“There is contemporaneous evidence that after receiving the notice it was the intention to file the statement of claim. There was the evidence of the law clerk and the solicitor that they made a mistake. That evidence has been accepted by the trial judge. The only evidence against it is the evidence of the file note and the letter and which was before the trial judge and he looked at it and accepted Ms Ranson’s explanation that it was always their intention to do it but when they made a mistake then sought to do something to make the case better at that stage instead of doing what they should have done, just filing a statement of claim straight away. But that is another mistake on the part of the solicitors.”

63 It can be seen that Ms Norton identified two main errors on the part of the solicitors. Firstly, they issued a statement of claim against Volvo and not against Hickey when it always was their intention that the statement of claim be issued against Hickey as well. Secondly, when they discovered their mistake, they did not immediately remedy the situation by issuing the statement of claim but waited to hear if they could first have a view of the truck “to make the case better at that stage”.

The error involving the incorrect statement of claim: the evidence of Mr Bryden, Ms Ranson and Mr Renshaw

64 As I have mentioned, both Mr Bryden and Ms Ranson testified that they always intended to prosecute an action against Hickey and they only failed to do so because they did not properly read the statement of claim that counsel had drafted. They gave oral evidence to the same effect and the primary judge appears to have accepted the truth of their explanation. But there is contrary evidence in the form of Mr Bryden’s testimony concerning the lack of evidence of Hickey’s negligence, Ms Ranson’s file note, her letter of 17 August 2006 to Mr Renshaw, and Mr Renshaw’s own testimony. There is also the fact that counsel, after being instructed by Mr Bryden, did not draw a statement of claim citing Hickey as a defendant. In addition Mr Bryden signed the statement of claim and Mrs Ransom seems to have had had a general look at it before issuing it.

65 Mr Bryden’s evidence that, in 2004, having taken instructions from Mr Gordon, he was uncertain on the basis of Mr Gordon’s instructions whether any cause of action was available to him at that stage, is contrary to the evidence that, from the outset, there was an unqualified intention on the part of the Gordon camp to sue Hickey. After all, Mr Bryden himself said that, as he had no evidence of negligence, he considered that the best course was to obtain medical reports and seek counsel’s advice concerning the matter. On his evidence, the notion of taking action against Hickey at that stage was uncertain. What Mr Gordon’s intention (and state of knowledge) was at that time is quite unknown. There is also silence as to the detail of counsel’s advice.

66 Ms Ranson’s file note records that on 19 August 2006 she told Mr Renshaw that Brydens did not want to incur the expense of a notice of motion to join Hickey as they were not sure that they could prove negligence on Hickey’s part. This is an unequivocal statement. It is fundamentally inconsistent with a firm intention, at least at that date, on the part of Ms Ranson (and, by inference, Brydens) to bring proceedings on Mr Gordon’s behalf against Hickey.

67 There is no evidence of Brydens obtaining any evidence of negligence after Mr Bryden initially formed the view that he was uncertain whether any cause of action was available to Mr Gordon. A compelling inference, therefore, arises that the doubts that existed when Brydens were first instructed by Mr Gordon as to whether action should be brought against Hickey, continued to exist. The reason for the existence of those doubts had not been removed.

68 Ms Ranson’s letter of 17 August 2006 expressly states that Brydens “are reluctant to join your client to the proceedings at this stage”. The only reasonable inference for this reluctance is the uncertainty on Bryden’s part as to whether they could prove negligence by Hickey (and, perhaps, a lack of funds on the part of Mr Gordon – there being no evidence whether he paid the $500 that Brydens had requested). This is confirmed by the latter part of the letter, which expresses the hope that Hickey would agree to Brydens inspecting the handle of the vehicle “to avoid putting on an unnecessary motion to join them when it may just be a simple matter against Volvo”. It would only be a “simple matter against Volvo” were it to be established from an inspection that there was no reasonable case in negligence against Hickey.

69 Mr Renshaw’s testimony, which the judge accepted, is to the same effect.

The error involving the incorrect statement of claim: the drafting, signing and issuing thereof

70 In assessing whether a full and satisfactory explanation has been given by reference only to the conduct of the solicitors, due regard must also be had to the fact that counsel drafted a statement of claim without citing Hickey after a consultation with Mr Bryden and after giving advice, and to the fact that Mr Bryden signed the statement of claim while Ms Ranson appears to have checked it and Brydens issued it.

71 It is unusual, to say the least that counsel, having been instructed to draft a statement of claim against both Volvo and Hickey, and having had the benefit of a consultation with his instructing solicitor (and, having given advice in that connection), would, in error, forget about the claim against Hickey and omit the claim against it when drafting the statement of claim.

72 The least one would expect in such a case is an affidavit from counsel confirming that such an error occurred. In saying this, I do not lose sight of the fact that it is the explanation of Mr Gordon that is at issue, and not that of his legal representatives. But in a case where there is no explanation whatever from Mr Gordon himself, and where it is sought to prove his state of mind by reference to what his legal representatives thought, did and did not do detailed testimony from all the legal representatives involved should be provided.

73 Mr Bryden signed a statement of claim against Volvo; that is, the statement of claim that did not make Hickey a defendant. Part 4 r 4.4 of the Uniform Civil Procedure Rules 2005 requires a pleading of a party who is represented by a solicitor to be signed by the party’s solicitor. This rule is not intended to create a mere rubber stamp procedure. Pleadings form an important function, apart from defining and crystallising the issues. They are intended to be a mechanism for the purpose of arriving at the true issues in dispute. More than 130 years ago, for example, it was said that counsel’s signature on a pleading is a “voucher that the case is not a mere fiction”: see GreatAustralian Gold Mining Company v Martin [1877] 5 Ch D 1 at 10. In this day and age it could hardly be said that the solicitor’s signature on a pleading has any different import.

74 This proposition is reflected in s 347 of the Legal Profession Act 2004 which provides:

“A law practice cannot file court documentation on a claim or defence of a claim for damages unless a principal of the practice, or a legal practitioner associate responsible for the provision of the legal service concerned, certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.”

75 The importance of a signature on a pleading is so self-evident that it is difficult to accept that a solicitor, and an experienced one at that, would sign a pleading with so cursory a glance as not even to notice that it did not cite or make out a case against a party who the solicitor had been instructed to sue.

76 According to Mr Bryden, Ms Ranson’s task was to check the statement of claim. Her evidence as to whether she did so at all, and, if so, and the extent to which she checked the document, is not clear. Nevertheless, it is again difficult to accept that she did not even realise that a necessary party had not been cited as a defendant.

77 There is nothing in the primary judge’s reasons that indicates that he accorded any weight to the matters that I have dealt with under this heading.

The primary judge’s reasoning as to the intention of the parties to be inferred from the solicitors’ “errors”

78 Hungerford ADCJ said that he did not “find any operative distinction between Ms Ranson and Mr Renshaw”. There was, however, a most important distinction. As his Honour himself noted, Mr Renshaw testified that Ms Ranson told him, “the delay was because the reasonable prospects of success against [Hickey] had not been then determined”. Ms Ranson, on the other hand, as I have noted, asserted that “the firm’s intention was always to pursue a claim against [Hickey]” and the delay was caused by Brydens’ errors.

79 Hungerford ADCJ sought to reconcile the two versions by holding that “there was always the intention to bring a claim against [Hickey]”, but at the stage the s 110 notice expired, Brydens wished to make further enquiries to support a notice of motion to join Hickey to the action.

80 There are four basic problems with this reasoning. Firstly, it does not address the evidence of Mr Bryden that when first instructed, by reason of lack of evidence of negligence, he did not have an unqualified intention to bring proceedings against Hickey. Secondly, it does not address the fact that counsel drafted a statement of claim only against Volvo, that Mr Bryden signed that statement of claim and that Ms Ranson looked at it and issued it. Thirdly, it does not address the unequivocal file note and letter of Ms Ranson, as supported by the evidence of Mr Renshaw, to the effect that in mid-August 2006 Brydens were still reluctant to commence proceedings against Hickey. Fourthly, it does not address the notion that Brydens’ desire to make further enquiries to support a notice of motion to join Hickey to the action was inconsistent with an unqualified intention to sue Hickey.

81 In my view, the versions of Ms Ranson and Mr Renshaw cannot be reconciled and his Honour was mistaken in deciding to the contrary.

The importance of the credibility findings

82 Ms Norton stressed that, having seen and heard the witnesses, Hungerford ADCJ held that “there was always the intention to bring a claim against [Hickey]” and that the cause of the delay was that “a mistake [by the solicitors] had been made”.

83 In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gleeson CJ, Gummow and Kirby JJ said (at [29])

“In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ‘not shrink from giving effect to’ its own conclusion.”

84 A relevant example of an appellate court reversing a factual finding based on credit is State Rail Authority of NSW v Earthline Constructions Pty Ltd (in Liq) [1999] HCA 3; (1999) 160 ALR 588 where Gaudron, Gummow and Hayne JJ said at [63] and [64]:

“It is true that the trial judge, in determining whether to accept the evidence of Mrs Page was heavily weighed by his impression of her while giving oral evidence. However, this circumstance does not preclude a court of appeal from concluding that, in light of other evidence, a primary judge had too fragile a base to support a finding that a witness was unreliable. The documentary evidence in this case … provides significant support to the allegations made by Mrs Page.
… The substance of the matter is that there has not yet been a determination of the SRA’s case upon a consideration of the real strength of the body of evidence it presented.”

85 For the reasons I have given, I think that Hungerford ADCJ had too fragile a base to support the credibility findings he made. The documentary evidence to which I have referred provides significant support to the allegations made by Hickey, namely, that the true reason for the delay was not the errors made by the solicitors, but their reluctance to commence proceedings without evidence of negligence.

Other factors relevant to whether a full and satisfactory explanation for the delay was given

86 I have drawn attention to the fact that the role counsel played other than in advising that a personal injury claim form be served and in drafting the statement of claim against Volvo is obscure and that no explanation as to why Hickey was not included as a defendant in the statement of claim has been provided by counsel. Indeed, that statement of claim has not been put before this Court.

87 I have drawn attention to the fact that no explanation has been given for the omission to provide evidence from Maria and Fran as to why the statement of claim was not issued against Hickey – they being apparently persons who at a relevant time were dealing with the case on Brydens’ behalf.

88 I have drawn attention to the fact that no evidence has been given as to whether Mr Gordon paid the $500, or any amount, towards the cost of commencement of proceedings as Brydens asked on 7 June 2006. An inference is open that without such payment Brydens would not have taken further steps, particularly where they were concerned with lack of evidence of negligence against Hickey.

89 No adequate explanation has been given for the inactivity of Brydens from 14 March 2006, when the s 110(1) notice was served, until 24 November 2006, when Brydens caused proceedings to be commenced against Hickey. The telephone conversation of 10 August 2006 was merely to attempt to arrange to inspect the truck (apparently to assist in ascertaining whether there was evidence of negligence) and the few other steps that were taken during this period do not adequately explain the delay that was continuing to ensue.

90 While it is the explanation of Mr Gordon and not that of Brydens that is ultimately in issue, where there is no evidence from Mr Gordon himself, and inadequate evidence from his legal representatives, it cannot be said that Mr Gordon has provided a full and satisfactory explanation for the delay in complying with the s 110 notice.

91 In the circumstances of this case, I do not think that a full and satisfactory explanation within the meaning of s 66(2) could be given without the testimony of Mr Gordon. There are far too many aspects that require proof of Mr Gordon’s state of mind concerning what needed to happen and what was happening with his claim that could only be proved by Mr Gordon, himself.

Conclusion

92 It is unnecessary to deal with the other arguments raised by Mr Rewell.

93 For the reasons I have expressed, I would grant the application for leave to appeal, uphold the appeal, set aside the orders made by Hungerford ADCJ, and dismiss Mr Gordon’s application to reinstate his claim. I would order Mr Gordon to pay the costs of the application for leave to appeal and the appeal and the costs of the hearing before Hungerford ADCJ. I would grant a certificate to Mr Gordon under the Suitor’s Fund Act 1951, if otherwise qualified.

94 McCOLL JA: I agree with Ipp JA.

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