Jonathan v Mangera

Case [2016] QCA 86

SUPREME COURT OF QUEENSLAND

CITATION:

Jonathan v Mangera & Anor [2016] QCA 86

PARTIES:

WARREN JONATHAN
(applicant)
v
ZOHRABIBI MANGERA
(first respondent)
RACQ INSURANCE LIMITED
ABN 50 009 704 152
(second respondent)

FILE NO/S:

Appeal No 8755 of 2015
DC No 2750 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:


District Court at Brisbane – [2015] QDC 195

DELIVERED ON:

8 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2016

JUDGES:

Morrison JA and Boddice and Burns JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application to adduce further evidence is refused.

2.   The application for leave to appeal is refused.

3.   The applicant is to pay the respondent’s costs of and incidental to the applications, to be assessed on the standard basis.
CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – PERSONAL INJURY – MOTOR VEHICLE LAW QLD – MOTOR ACCIDENT INSURANCE – MOTOR ACCIDENT INSURANCE ACT 1994 (ANNOTATED) – PART 4 (CLAIMS) – DIVISION 6 – PROCEEDINGS IN A COURT – SECTION 57 ALTERATION OF PERIOD OF LIMITATION – where the applicant was injured in a motor vehicle accident in August 2012 – where the applicant gave the requisite Notice of Accident Claim Form under the Motor Accident Insurance Act 1994 (Qld) – where the second respondent admitted liability – where the applicant was examined by selected specialists to further his claim in March 2013 – where an appointment was made for the applicant to be examined by one of the second respondent’s nominated specialists in July 2013 – where the applicant did not attend the appointment – where the applicant did not contact his solicitors again until July 2015 – where the applicant’s solicitors filed an application seeking orders that leave be given to commence proceedings within 60 days of three alternative events, none of which could occur before the three year limitation period ran out – where the learned primary judge dismissed the application for an extension of time – whether an extension of time should have been granted under s 57 of the Motor Accident Insurance Act 1994 (Qld)

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where the applicant sought to produce fresh evidence in the Court of Appeal hearing – where the evidence consists of an affidavit deposed to by the applicant detailing his movements and availability between March 2013 and July 2015 – whether leave to adduce fresh evidence should granted

District Court of Queensland Act 1967 (Qld), s 118(2), s 118(3)
Motor Accident Insurance Act 1994 (Qld), s 57(2)
Uniform Civil Procedure Rules 1999 (Qld), r 766(1)(c)

Blundstone v Johnson[2010] QCA 148, followed
Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378; [2004] QCA 480, considered
Paterson v Leigh (2008) 51 MVR 508; [2008] QSC 277, applied
Pickering…

Continue reading Jonathan v Mangera

Sign in free to access the full text

Details
AGLC
Jonathan v Mangera [2016] QCA 86
Case
[2016] QCA 86
Decision Date

CaseChat Overview and Summary

The case of Jonathan v Mangera involves a claim for personal injury resulting from a motor vehicle accident that occurred in August 2012. The applicant, Mr Jonathan, had given the requisite Notice of Accident Claim Form under the Motor Accident Insurance Act 1994 (Qld), and the second respondent admitted liability. However, Mr Jonathan did not attend a scheduled examination by one of the second respondent’s nominated specialists in July 2013 and did not contact his solicitors again until July 2015. Consequently, Mr Jonathan’s solicitors filed an application seeking orders to extend the limitation period to allow proceedings to commence within 60 days of three alternative events, none of which could occur before the three-year limitation period expired. The learned primary judge dismissed the application for an extension of time, and the issue before the court was whether an extension of time should have been granted under s 57 of the Motor Accident Insurance Act 1994 (Qld).

The legal issues that the court needed to address involved whether an extension of the limitation period should be granted under s 57 of the Motor Accident Insurance Act 1994 (Qld) and whether leave should be granted to adduce fresh evidence in the form of an affidavit from the applicant detailing his movements and availability between March 2013 and July 2015. The court needed to determine if the fresh evidence could have been obtained with reasonable diligence for the original hearing, if it would probably have an important influence on the result of the case, and if it was apparently credible.

The court reasoned that the fresh evidence did not satisfy the criteria for admission as it could have been obtained with reasonable diligence for the original hearing, it was unlikely to have had an important influence on the result of the case, and it did not meet the requirement of being apparently credible. The court found that Mr Jonathan's explanations for not attending the scheduled examination and for not contacting his solicitors were not credible, and the evidence was likely to confirm the inference that Mr Jonathan deliberately stayed out of contact. The court concluded that the primary judge's exercise of discretion did not miscarry, and therefore, the application for leave to adduce further evidence and the application for leave to appeal should be refused.

In conclusion, the court refused the application to adduce further evidence and the application for leave to appeal. The applicant was ordered to pay the respondent's costs of and incidental to the applications, to be assessed on the standard basis. The reasoning of the court was that the fresh evidence did not satisfy the criteria for admission and was unlikely to have influenced the result of the case. The court found that the primary judge's exercise of discretion did not miscarry, and therefore, the applications were refused.

Orders

Orders of the court

1. The application to adduce further evidence is refused.

2. The application for leave to appeal is refused.

3. The applicant is to pay the respondent’s costs of and incidental to the applications, to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Jonathan also seeks leave to adduce further evidence pursuant to r 766(1)(c) of the Uniform Civil Procedure Rules 1999 (Qld).The application to adduce further evidence The fresh evidence sought to be adduced is an affidavit of Mr Jonathan, giving details of his movements and availability to his solicitors between March 2013 and July 2015. At the hearing of the application for leave to appeal the Court reserved its decision on the admissibility of the fresh evidence. The principles applicable to this application are not in doubt. Fresh evidence can be admitted if: (i) it could not have been obtained with reasonable diligence for the original hearing; (ii) it is such that, if given, it would probably have an important influence on the result of the case; and (iii) it is apparently credible.[10] None of those principles can be met here.[10]Pickering v McArthur [2010] QCA 341 at [22]. First, in my view, the evidence does not satisfy the requirement that it could not have been obtained with reasonable diligence for the original hearing:(a)all of the information in it consists of personal explanations as to where Mr Jonathan lived and worked, and his access to phones or emails, during the period between March 2013 and July 2015; that was available to be produced had anyone asked him when he made contact again on 29 July 2015;(b)Mr Jonathan called his solicitors on the afternoon of Wednesday 29 July 2015, and again on Thursday 30 July; even though he said he could not get time off work to go into the solicitors’ office, that still left all the time after hours on Wednesday 29 and Thursday 30 when he could have been asked for instructions over the phone and still prior to the hearing on Friday 31;(c)had an adjournment of the hearing been sought in light of the recent contact and his unavailability during business hours, there was a reasonable likelihood of it being granted, even if only until 4 August; no adjournment was sought on 31 July, notwithstanding that the solicitors had not tried to get Mr Jonathan to attend after hours, nor had they proposed they attend on him;(d)had an adjournment been granted only to 4 August, that left all day Saturday 1 August, Sunday 2 August, and after hours on Monday 3 August, in which an affidavit could have been prepared including all that Mr Jonathan now says; and(e)there is no explanation of why the solicitors did not attend on Mr Jonathan after hours to get the material they needed; the lack of effort is inexplicable given the fact that they were impressing on him the urgency of the situation with the looming expiration of a limitation period, and Ms Rutledge seems to have been willing to work after normal business hours.[11][11]AB 77. Secondly, I do not consider that the evidence would have had an important influence on the case, at least not in Mr Jonathan’s favour. In my view, the evidence was likely to confirm the inference drawn by the learned primary judge that Mr Jonathan deliberately stayed out of contact. The following suffices to demonstrate why:(a)there is no explanation why he did not attend the appointment with the examining specialist;(b)there is no credible explanation why he gave up his position as Manager of Australian Pharmaceutical Industries, earning over $3,000 per week,[12] to work (between May 2013 and Christmas 2013) in southern States without the ready ability to be in contact;(c)between 25 December 2013 and April 2015 he was living and working at Tweed Heads, and with the ability to be in phone contact; however there was no explanation why he did not, nor could not, contact his solicitors;(d)from some unspecified time after September 2014 to July 2015 he was working at Eagle Farm; there is no explanation why he did not, or could not, contact his solicitors;(e)there is no explanation given as to why he could not have been found on Electoral Roll searches;(f)the message that triggered his contact was sent at 5.15 pm on Friday 24 July; it said that he needed to contact them “ASAP”, but he did not do so until Wednesday 29 July; there is no explanation for that delay; and(g)in support of the application to adduce the fresh evidence, Ms Kruger, a solicitor in the firm acting for Mr Jonathan, exhibited a letter sent to Mr Jonathan on 4 July 2013; it says that the solicitors’ office “understands that you do not wish to proceed with your personal injury matter at this point in time due to ongoing police investigations over a possible arson”; there is no denial of receipt of that letter, or that it does not reflect his instructions.[12]AB 25.

Decision

Reasons for decision

In my view, it cannot be demonstrated that the learned primary judge’s exercise of discretion miscarried.Conclusion and orders For the reasons given above, the application for leave to adduce further evidence should be refused, and the application for leave to appeal should also be refused. I would propose the following orders:1.The application for leave to adduce further evidence is refused.2.The application for leave to appeal is refused. The applicant is to pay the respondent’s costs of and incidental to both applications, to be assessed on the standard basis. BODDICE J: I have read the reasons for judgment of Morrison JA. I agree with those reasons and with the proposed orders. BURNS J: I agree with the reasons of, and the orders proposed by, Morrison JA.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.